IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend, Sarah R. Stukenberg, )

D.I., by his next friend, Nancy G. Pofahl,

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Z.H., by his next friend, Carla B. Morrison,

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S.A., by her next friend, Javier E. Solis,

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A.M., by her next friend, Jennifer Talley,

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J.S., by his next friend, Anna J. Ricker,

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K.E., by her next friend, John W. Cliff, Jr.,

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D.P., by her next friend, Karen J. Langsley, and )

T.C., by his next friend, Paul Swacina,

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individually and on behalf of all others similarly )

situated,

)

)

Plaintiffs,

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v.

) )

CASE NO. ______________________

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RICK PERRY, in his official capacity as

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Governor of the State of Texas,

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THOMAS SUEHS, in his official capacity as )

Executive Commissioner of the Health )

and Human Services Commission of the )

State of Texas, and

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ANNE HEILIGENSTEIN, in her official

)

capacity as Commissioner of the

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Department of Family and Protective )

Services of the State of Texas,

)

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Defendants.

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PLAINTIFFS’ ORIGINAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION

TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 JURISDICTION AND VENUE ......................................................................................................5 PARTIES .........................................................................................................................................5
A. Named Plaintiffs ......................................................................................................5 M.D. ........................................................................................................................ 5 D.I. .......................................................................................................................... 8 Z.H. ....................................................................................................................... 10 S.A. ....................................................................................................................... 13 A.M. ...................................................................................................................... 15 J.S.......................................................................................................................... 19 K.E. ....................................................................................................................... 21 D.P. ....................................................................................................................... 23 T.C. ....................................................................................................................... 27 Named Plaintiffs, Collectively.............................................................................. 30
B. Next Friends...........................................................................................................31 C. Defendants .............................................................................................................33 CLASS ACTION ALLEGATIONS ..............................................................................................35 FACTUAL ALLEGATIONS ........................................................................................................37 A. The Structure Of The Texas Foster Care System ..................................................37 B. Defendants Are Causing Harm And Risk Of Harm To Plaintiff
Children, Who Are In The Permanent Managing Conservatorship Of The State. ..........................................................................................................41 1. Defendants Frequently Move Plaintiff Children From
Placement To Placement, Causing Them Harm ....................................... 41 2. Defendants Make Inappropriate Use Of Congregate
Placements, Harming Plaintiff Children ................................................... 44
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3. Defendants Utilize A Category Of Congregate Foster Care Placements That Is Particularly Harmful to Children............................... 47
4. Plaintiff Children Suffer Abuse And Neglect In State Custody ..................................................................................................... 49
5. Plaintiff Children Are Denied Necessary Services While In State Custody ............................................................................................ 52
6. Plaintiff Children Are Frequently And Unnecessarily Separated From Their Siblings And Denied Visits With Their Families ........................................................................................... 53
7. Defendants Harm Plaintiff Children By Leaving Them To Languish In Care Without A Permanent Family And Age Out Of Foster Care Ill-Prepared For Independent Adult Life................... 55
C. The Harms Suffered By Plaintiff Children Result From Defendants’ Failure To Properly Manage The DFPS Foster Care System ....................................................................................................................58
1. Defendants Mismanage The Texas Foster Care System By Failing To Maintain A Caseworker Staff Of Sufficient Size And Capacity To Perform The Tasks Critical To Plaintiff Children’s Safety, Permanency, And Well-Being .................................... 59
2. Defendants Mismanage The Texas Foster Care System By Failing To Focus Resources On Permanency Planning For Plaintiff Children, Causing Them To Languish In Foster Care Until They Age Out .......................................................................... 62
3. Defendants Mismanage The Texas Foster Care System By Failing To Create An Adequate Number And Array Of Placements And Services, Subjecting Plaintiff Children To Unstable And Inappropriately Restrictive Placements, Far From Family And Community.................................................................. 64
4. Defendants Mismanage The Texas Foster Care System By Failing To Adequately Oversee Substitute Care, Placing Plaintiff Children At Risk Of Harm.......................................................... 69
a. Defendants Fail To Ensure That Caseworkers Conduct Frequent And Quality Visits With Plaintiff Children......................................................................................... 70
b. For Children In Private Care, DFPS’s Contract Management Arm Fails To Ensure That Children Are Safe From Harm..................................................................... 72
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c. For Children In Private Care, DFPS’s Licensing Arm Fails To Provide Adequate Oversight To Ensure Plaintiff Children’s Safety ................................................ 75
COUNT I .......................................................................................................................................79 COUNT II ......................................................................................................................................80 COUNT III.....................................................................................................................................81 PRAYER FOR RELIEF ................................................................................................................81
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INTRODUCTION 1. This is a civil rights class action on behalf of the approximately 12,000 children who have the misfortune of being in the long-term foster care – the Permanent Managing Conservatorship (“PMC”) – of the State of Texas. Far too many children in the state’s PMC – are subjected to immeasurable and permanent harm, and are deprived of the opportunity for a safe childhood, all while under the state’s care and protection. 2. Every year, thousands of Texas children are brought into the custody of the Department of Family and Protective Services (“DFPS” or the “Department”) after being abused or neglected in their homes. This custody, called “substitute care” in Texas, is intended to be temporary, lasting only until a child can either safely be returned home or placed with another permanent family. The state is required to make efforts to achieve one of these outcomes within the first year that a child is in custody. If the state is not able to achieve reunification or other permanency within that time, the child is placed in the state’s PMC. 3. Once children enter the state’s PMC, DFPS makes little effort to find them permanent homes. Instead, these children remain in state custody for many years, and many are abused while in the state’s custody. In 2009, 6,400 children – over one-quarter of all children in Texas’s PMC – had been in foster care for more than three years. As of May 2010, roughly 500 children had been in Texas state custody for more than ten years. These children languish in state care even though, as of August 2010, nearly three-quarters of children in the state’s PMC were legally free for adoption. Each year, far too many children leave the state’s PMC only when they turn eighteen and “age out.” 4. While children are in its custody, the state is legally obligated to provide them with care and services that meet their individual needs and ensure their safety and well-being, and to find

for them the least restrictive, most family-like placements appropriate to their needs. However, Defendants fail to meet these obligations. The placements, treatment, and services that Texas provides to its wards are inadequate, and these inadequacies are only compounded once children enter the state’s PMC. 5. Many children in the state’s PMC are moved from placement to placement, with little effective planning and with disregard for the emotional harm that these disruptions cause. As of 2009, children in the state’s PMC who had been in DFPS custody for more than three years had been in an average of eleven placements. 6. Children in the state’s PMC are placed in large group or “congregate” settings almost twice as frequently as other children in Texas state custody. In particular, Defendants place many PMC children in “Foster Group Homes,” a type of placement for seven to twelve children, without professional staff, that often provides care falling far short of professional standards. 7. Too many Plaintiff Children are placed in restrictive Residential Treatment Centers (“RTCs”) and remain there longer than appropriate. As of March 31, 2010, three-quarters of the children in such RTCs in Texas were in the state’s PMC – even though the children in PMC comprised fewer than half of all children in the state’s custody on that date. Some of these facilities provide sub-standard care and are harmful to Plaintiff Children. Moreover, these RTCs are largely concentrated in one area of the state, which means many children who are placed in them suffer the further emotional trauma of being uprooted from their home communities. 8. In the words of the Permanent Judicial Commission for Children, Youth and Families of the Supreme Court of Texas (the “Children’s Commission”), Plaintiff Children “are essentially ‘stuck’ and only a small number of them will ever achieve true permanency.” 9. These and other harms to Plaintiff Children are caused by a number of significant
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deficiencies in the Texas foster care system, including at least the following:
a. DFPS is severely understaffed, suffers from high staff turnover, and is so poorly managed that little actual planning takes place for children once the state takes PMC. Overburdened caseworkers often fail to ensure that children are safe and that they receive needed services while they are in foster care.
b. DFPS caseworkers fail to develop and implement appropriate permanency plans for children. Even though over half of all children entering PMC each year are under the age of seven, DFPS deems many children in the state’s PMC to be “unadoptable” and makes little effort to find them a permanent and loving home.
c. Defendants fail to ensure that there is an adequate range of placements and services that meet the needs of children across the state. This uneven distribution means that many placements disrupt because they are inappropriate or unsupported; it also means that many Plaintiff Children are, by necessity, placed at great distances from their home communities.
d. The Department’s oversight of the providers who care for the state’s foster children is inadequate: DFPS caseworkers do not regularly visit children in their placements to assure their safety and well-being; the Department does not adequately manage its contracts to ensure that professional standards are met by the private care providers operating homes and institutions where the majority of children in the state’s PMC are placed; and the Department inadequately investigates reports of maltreatment in care, and imposes insufficient remedial measures and sanctions even when maltreatment is discovered, creating a continuing risk of harm to children under the state’s protection.
10. Defendants have long been aware of these and other deficiencies of the Texas foster care
system, yet have failed to effectively address them – leaving many thousands of children to be
harmed while in the state’s care.
11. Texas received a failing grade in a 2002 federal audit of its foster care program, and
performed even worse on certain key measures in a second federal audit in 2008.
12. In 2004, Texas’s Comptroller released a report on the state’s foster children entitled
Forgotten Children. The Comptroller called on Governor Perry to establish a “Crisis
Management Team” to deal with the problems. Around that time, several reports repeated a
Texas judge’s statement that children in the state’s PMC were “the children that even God has
forgotten.”
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13. In 2006, the Comptroller again urged Governor Perry to take action, noting that in Fiscal Year (“FY”) 2005 a child in foster care in Texas was statistically four times more likely to die than a child in the state’s general population. 14. In 2008, the federal government fined Texas $4 million for not seeing to it that children in state custody received the number of monthly visits by conservatorship caseworkers that are required by federal child welfare performance standards. As DFPS Commissioner Anne Heiligenstein recently noted, the state escaped paying this fine “not because the feds decided we were right and they were wrong . . . but because they made some computation errors in other states.” 15. In January 2010, Commissioner Heiligenstein commented: “When we talked with children, particularly the teenagers in foster care . . . they are very clear about what we have done wrong: we have taken them very far from their homes, separated them from their siblings, disrupted their care and/or moved them to a new foster placement too often.” 16. In December 2010, the Texas Adoption Review Committee found that the Texas foster care system “is sometimes doing more harm to our children than good.” 17. Children in Texas’s PMC will continue to be harmed, and their constitutional rights will continue to be violated, unless and until fundamental changes are made to this damaging system. Defendants are knowingly failing to discharge their constitutional and statutory obligations to ensure the safety, permanency, and well-being of the children in the Plaintiff Class, exposing them instead to harm and risk of harm through the very system that is charged with protecting them. All members of the Plaintiff Class seek declaratory and injunctive relief to remedy these violations of their legal rights, and to prevent Defendants from continuing to put them at risk of harm.
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18. This class action lawsuit is the collective cry of Texas’s forgotten children, now demanding to be remembered.
JURISDICTION AND VENUE 19. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 20. Venue is proper here, pursuant to 28 U.S.C. § 1391(b), because a substantial portion of the events or omissions giving rise to the claims occurred in this District, in that:
a. Named Plaintiffs M.D. and T.C. are legal residents of this Division and entered DFPS custody in this Division;
b. Named Plaintiff D.I. is a legal resident of this District and, along with Named Plaintiff S.A., entered DFPS custody in this District;
c. at minimum, Named Plaintiffs M.D., D.I., S.A., J.S., K.E., D.P., and T.C. have been, at times, placed in this District; and
d. Named Plaintiff D.I. is currently placed in this District. PARTIES
A. Named Plaintiffs M.D.
21. M.D. is a fourteen-year-old girl from Corpus Christi, in Nueces County. M.D. was originally brought into state custody at age eight, placed with relatives, and then again brought back into state custody at age ten. Over the four years that M.D. has most recently been in the care of the state, DFPS has repeatedly failed in its obligation to provide for her safety and wellbeing. Instead of providing her with services and therapy to address the maltreatment that caused her removal from her parents and the abuse she suffered while living in a DFPS-selected placement, DFPS has compounded that trauma by placing her for years in inappropriate institutions; failing to provide her with critically-needed mental health evaluations and services;
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overmedicating her with powerful psychotropic medications; failing to seek and secure an appropriate permanent home for her; and subjecting her to numerous and frequent placement moves that have prevented her from establishing lasting relationships with caregivers, therapists, or even other children. 22. When M.D. was eight years old, DFPS removed her from her parents due to neglect by her mother and abandonment by her father. After nine months in the state’s custody, DFPS placed M.D. in conservatorship with her aunt and uncle. However, when M.D. was ten years old, DFPS removed her from this home, because her cousin sexually assaulted her while she was under the aunt and uncle’s conservatorship. 23. After removing M.D. from her relatives’ home, DFPS moved the ten-year-old child through three foster placements over the next six months. Eventually, DFPS placed M.D. in a foster home in Dallas, over 400 miles from her home community. 24. Toward the end of 2007, DFPS moved M.D., still only ten years old, to an institution, an RTC in Victoria. After three months in this facility, M.D. became suicidal. She stayed there for almost two and a half years, steadily deteriorating both emotionally and psychologically. During this time, DFPS assumed PMC of the child. 25. From the RTC, DFPS sent M.D. to an acute care facility just outside of Houston, without making any permanent plans for her. After two months, DFPS moved M.D. 300 miles away to yet another RTC in Denton. 26. While at that RTC, M.D. and another young child left the facility and walked to a nearby retail establishment where M.D. was raped. After the rape, DFPS did not provide M.D. with any special counseling, even though M.D. was so traumatized that she had started cutting herself. Instead, RTC staff chastised M.D. for leaving the facility. In the midst of the emotional turmoil
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resulting from the assault, DFPS sent M.D. to a juvenile detention center after a disturbance at the RTC. 27. During the four years that M.D. has been in foster care, DFPS has moved her through at least seven different foster placements, as well as hospitalizations. For much of this time, this young child has been kept in institutions of one kind or another – RTCs, psychiatric centers, and detention facilities. With such an existence, M.D. has been unable to form any lasting relationships. 28. M.D. is currently placed in an austere, restrictive short-term therapeutic placement in San Antonio. M.D. has no privileges of any kind. She has no visitors. She cannot have any toiletries. She is warehoused and alone. Her DFPS caseworker has said that M.D. will be transitioning from this facility to another RTC. 29. As M.D. has moved through the foster care system, she has been given numerous psychotropic medications. These drugs have been used as a chemical substitute for the care, counseling, and permanent placement in a family that DFPS is obligated to seek and secure for her. M.D. is now diagnosed with bipolar disorder and depression. 30. While M.D. is nominally in the eighth grade, she has been placed in a number of schools attached to the institutions where she was placed. In those schools, she has been advanced from one grade to the next based on her age. Her true academic progress has been constantly interrupted by her placement in a series of far-flung facilities. 31. Although DFPS knew early on that M.D.’s parents were not capable of parenting her, and in fact had removed her from their care in 2005, it was not until July 2010, more than three years after she was brought into foster care for the second time, that M.D. was freed for adoption. 32. Despite the fact that M.D. has consistently asked to be adopted, DFPS has continually
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failed to seek and secure a permanent family for this lonely child. At the age of fourteen, M.D. faces the prospect that she will age out of care after four more years of being shuffled around the state from institution to institution. 33. Defendants have violated M.D.’s constitutional rights by failing to protect from her from harm while in their care; failing to provide adequate supervision over her foster care placements; subjecting her to frequent moves across the state far from her home community; failing to arrange for adequate therapy to address the trauma she has suffered both before and while in DFPS custody; subjecting her to unnecessary psychotropic medications; keeping her for long periods in institutions; and failing for years to identify or plan for an appropriate permanent placement.
D.I. 34. D.I. is a nine-year-old boy from Houston, in Harris County, who came into the Permanent Managing Conservatorship of the state in August 2010. DFPS has failed to keep this young boy safe while in its custody, instead placing him in one foster home that could not meet his needs and in another where he was sexually abused. DFPS has failed to provide D.I. with adequate counseling to address either the trauma he suffered at home or while in foster care, instead allowing him to be administered powerful psychotropic medications. Additionally, the Department has failed to take timely and appropriate steps to identify a permanent home for this boy. 35. DFPS first became involved with D.I. and his mother in July 2007, when D.I. was five years old. The boy’s mother had a serious drug addiction and did not feed D.I. at home, leaving the young boy to cook for himself and scrounge in dumpsters for food. D.I.’s father, who did not live with them, knew of the mother’s neglect, but was himself an alcoholic and drug addict.
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Over the next twelve months, the boy acted out in school, and DFPS received several reports of the mother’s neglectful supervision and physical and medical neglect of D.I., but all were ruled out after investigation by DFPS staff and administrators. 36. After D.I. ran away from home in July 2008 at age six, DFPS again investigated, and this time decided to leave the child in the home under a safety plan which provided services to D.I. and his mother. This plan proved unsuccessful, and in late February 2009, the Department brought D.I. into state custody. 37. DFPS first placed D.I. with a relative who had five children of her own. For the first three months that he was with this relative – but still in DFPS custody – DFPS did not arrange for D.I. to receive any therapy to address the extreme neglect he had suffered. Eventually, the relative expressed to DFPS that she could not manage the behaviors of this unsocialized child. 38. In June 2010, when D.I. was eight, DFPS moved him to a foster home, where just one foster parent cared for five children and adolescents, some of whom had histories of acting out sexually. In this inadequately supervised placement, D.I. was sexually abused by three older boys on more than one occasion. DFPS did not close this foster home after learning of the abuse. 39. DFPS removed D.I. from this home and placed him in another foster home. Although D.I. had recently been sexually abused by older boys, DFPS selected a foster home which housed at least five other boys. Again, there was a single foster parent to care for all of the children in the home. D.I. remained in this placement for just ten days. 40. During this time, D.I. was admitted to a psychiatric hospital, where he was reevaluated by a new doctor and therapist and diagnosed with Attention Deficit Hyperactivity Disorder, Reactive Attachment Disorder, and Oppositional Defiant Disorder. D.I. was prescribed multiple psychotropic medications. D.I. continues to be given these medications, which make him
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extremely lethargic and unable to focus. 41. In August 2010, DFPS took Permanent Managing Conservatorship of D.I. Within weeks of taking PMC, in September 2010, DFPS moved D.I. to a new foster home. Although the foster parent initially said that she was interested in adopting, she has since stated that she will not adopt D.I. DFPS subsequently placed three girls who have been sexually abused in the same home. D.I. remains in that home. 42. D.I.’s academic progress has suffered during his time in foster care, due to his moves and overmedication. DFPS has failed to provide D.I. with sufficient therapy to address the sexual abuse he suffered in its custody. 43. Although D.I. is legally free for adoption, DFPS has failed to take timely action to provide this child with the services and supports he needs to address his behavioral and mental health issues and ensure that he can become part of a safe and nurturing family. 44. Defendants have violated D.I.’s constitutional rights by placing him in a foster home where he was sexually abused; failing to arrange for adequate therapy to address the trauma he has suffered both before and while in foster care; subjecting him to the overuse of psychotropic medications; moving this young boy from placement to placement; and failing to take action to ensure that D.I. can leave foster care to a permanent and loving family.
Z.H. 45. Z.H. is a ten-year-old boy from San Antonio, in Bexar County. Z.H. is the oldest of three boys, born of the same mother but each with a different father. 46. Z.H. and his youngest brother were removed from their mother’s home and brought into foster care by DFPS in February 2009. The youngest brother, who was an infant when the boys were removed, was placed with foster parents who are now in the process of adopting him.
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DFPS took legal custody of the middle brother in March 2009, leaving him with his father with whom he had been living. Z.H., however, has been shuffled by DFPS from one placement to another, often many hundreds of miles from his home. DFPS has failed to provide Z.H. adequate services, instead consenting to his medication with powerful psychotropics. DFPS has failed to seek and secure a permanent home for this child, instead leaving him to languish in institutions. 47. Prior to entering foster care, Z.H. had been physically abused and neglected by his alcoholic and drug-abusing mother and sexually molested by men she brought home. Because of this serious maltreatment, Z.H. was in immediate need of services and therapy as soon as he entered care. DFPS provided neither, but instead allowed this child to be prescribed powerful drugs to control the symptoms of his trauma. DFPS placed Z.H., without his brothers, in a privately run emergency shelter in Kerrville, licensed to hold twenty children from birth through seventeen years old. Z.H. was nine years old at the time. While Z.H. was at the shelter his prescriptions ran out, but the shelter operator did not refill them or inform Z.H.’s DFPS caseworker. 48. In March of 2009, DFPS moved Z.H. from the Kerrville shelter to a therapeutic foster home. Shortly after arriving at the home, however, he was admitted to a hospital in San Antonio offering acute care for emotionally and behaviorally troubled children. 49. Z.H.’s condition deteriorated markedly at this facility. His eyes became sunken, with the pupils dilated and large dark circles beneath them. He appeared largely disconnected from his surroundings. He somehow acquired a gash on his left cheek which was not stitched, and which left Z.H. with a scar that only now is beginning to fade. 50. At this facility, the slight eight-year-old was given a cocktail of eight psychotropic medications. These drugs had powerful side effects: Z.H. became aggressive and agitated; was
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prone to abrupt and spontaneous movements; and was unable to control the movement of his tongue. These symptoms were so powerful that on at least one occasion (in May, 2009), hospital staff gave Z.H. emergency injections of Benadryl and Cogentin – a medication designed to treat the symptoms of Parkinson’s disease – in an attempt to control them. 51. The San Antonio hospital discharged Z.H. in June 2009. Because DFPS had made no other plan for him, Z.H. was taken to an emergency shelter in Lometa, more than 100 miles away. The shelter staff saw that Z.H. was medically unstable, and they had him admitted to a hospital in nearby Lampasas. The next day, he was transferred to a hospital in Belton, about 60 miles away. 52. The records of the Belton hospital note that Z.H. arrived overmedicated and on a stretcher, and that he required heavy stimulation just to keep his eyes open. Z.H. remained at the Belton facility, first in its hospital and then in its affiliated RTC, for an extended period of time. 53. Z.H. is now in an RTC designed to house 26 boys from ages seven to thirteen, in Nacogdoches, about 300 miles from his home community of San Antonio. Of the two years he has been in DFPS’s care, Z.H. has spent all but a few months in institutions. Z.H. entered the state’s PMC in July 2010. He is now ten years old. 54. DFPS has failed to take appropriate steps to seek and obtain a permanent family for Z.H., and did not begin to take steps to have him freed for adoption until early 2011 – when Z.H.’s mother was arrested for murder. 55. Although Z.H. is in the state’s PMC, DFPS has failed to develop and implement an appropriate plan for him to grow up in a safe and nurturing family. DFPS has done little to ameliorate the severe damage Z.H. suffered in his mother’s home but has instead compounded that damage by shuffling him from one institution to another, where his primary “treatment” has
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been powerful psychotropic drugs. These drugs have, at times, made it difficult if not impossible for him to effectively participate in the little therapy he has been offered. 56. Defendants have violated Z.H.’s constitutional rights by subjecting him to institutionalization and to over-medication; subjecting him to frequent placement moves; placing him far from his home community; failing for too long to arrange for adequate therapy to address the trauma he has suffered; failing to allow him reasonable contact with his siblings; failing to develop and implement an appropriate plan for him; and failing to take timely action to seek and secure a permanent family for him.
S.A. 57. S.A. is a fourteen-year-old girl who entered Texas foster care in November 2001, when she was five years old. She has been in the PMC of the state since October 2002, and she is legally free for adoption. Since she came into state custody nine years ago, DFPS has moved S.A. through at least 24 placements. She has endured 21 moves since becoming a permanent ward of the state, often to distant parts of the state. Despite the state’s obligations to provide appropriate services and treatment for her and to secure a permanent placement, S.A. remains in foster care, having spent more than six of her nine years in state custody in institutional placements. 58. S.A. was taken into foster care when her grandmother, who had formally adopted the child in Florida, was detained on outstanding warrants while crossing the border from Mexico with her boyfriend, a registered sex offender, and S.A. S.A. came into DFPS custody in Brownsville, Cameron County, in DFPS Region 11. 59. DFPS initially placed S.A. in a foster home. Over the next nine months, DFPS moved S.A. between multiple foster homes, hospitals, and an emergency shelter, before sending her, at
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the age of six, to an RTC in Victoria, Texas, in DFPS Region 8. While in this RTC, S.A. was legally freed for adoption. However, DFPS failed to take necessary steps to seek and secure an adoptive home for her. 60. When S.A. was discharged from the RTC, DFPS moved her to another congregate facility. This was S.A.’s longest placement, which she entered at age seven and where she remained for more than three years until she was ten years old. At one point S.A. was moved to the facility’s General Residential Operation (“GRO”), which provided less treatment than the RTC, but after only one month she was returned to the RTC. Despite the fact that a court ordered that S.A. be moved to a less restrictive placement, DFPS found no alternative, more appropriate or more home-like placement for her. 61. In April 2007, DFPS moved S.A. to a therapeutic foster home, but this placement lasted only two days. DFPS then placed her in another therapeutic foster home which lasted only two weeks. Over the course of the next four years, DFPS cycled S.A. through a series of therapeutic foster homes, RTCs, GROs, and hospitalizations. These placements have been across the state, in at least four of DFPS’s eleven regions. 62. S.A. is currently at an RTC in Kerr County, six hours from Brownsville. 63. When she was first brought into state custody, S.A. presented no acute emotional problems or mental illness. During her years in foster care, however, her behavior has deteriorated, and she is now described by DFPS as needing a placement that is “experienced in working with anxiety and grief/loss issues.” She is currently on multiple medications prescribed for schizophrenia and clinical depression. 64. S.A.’s frequent moves from one placement to another have been accompanied in most instances by a change of therapist, as well as by transfers from one school to another, limiting
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her therapeutic and educational progress. 65. S.A.’s case has been transferred from one DFPS caseworker to another – twelve in total. In fact, S.A. had one caseworker for just one month. 66. In nine years of state custody, DFPS has not developed an individualized adoption recruitment plan nor made any specialized efforts to find a permanent home for this child. 67. Defendants have failed to provide S.A. with any place in the State of Texas that she can call home. Defendants have violated S.A.’s constitutional rights by failing to develop and implement an appropriate plan for her; subjecting her to frequent moves; placing her far from the community where her case is managed; failing to protect her from emotional harm while in care; failing to identify an appropriate permanent placement for her; and failing to arrange for adequate therapy to address the trauma caused her by the lack of stability in her placements and relationships, instead subjecting her to overmedication to mask her behavioral symptoms.
A.M. 68. A.M. is a thirteen-year-old girl from Canton, in Van Zandt County who has been in foster care since July 2004 and is in the PMC of the State of Texas. While A.M. has been in its custody, DFPS has separated her from her sisters, shuffled her from one placement to another, placed her in inappropriate foster homes, and left her for years in an institution. DFPS has failed to provide A.M. with therapy necessary to deal with the traumas she has experienced and instead has subjected her to powerful psychotropic medications. Although she is legally free for adoption, DFPS has failed to seek and secure a permanent adoptive home for A.M. She remains in a temporary foster home with no adoptive prospects. 69. When A.M. was only six years old, she watched a violent physical fight among her mother, her mother’s then-boyfriend, and an ex-boyfriend. A.M. called the police, and DFPS
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removed the girl and her sisters. 70. A.M. has three younger half-sisters. DFPS placed the oldest of the three with paternal relatives in Van Zandt County, who have maintained sporadic contact with A.M. 71. The youngest was not born until A.M. was ten years old and already in the PMC of DFPS. DFPS removed that infant from her mother at birth and placed her in a foster home where A.M. was allowed to visit only once. This sister was soon adopted by a paternal uncle, who has maintained no contact with the mother’s side of the family. 72. A.M.’s middle sister, only a baby when the girls were removed from home, went with A.M. into DFPS custody. DFPS first placed A.M. and her sister in a nearby foster home, where they had no contact with extended family. After only a few months, the elderly foster parents told DFPS that they could not handle caring for the baby, and DFPS moved the girls to another foster home. 73. This next foster home was also in Van Zandt County. The girls’ great-grandmother was allowed to visit only at public places. After a few months, those visits stopped, and the foster parents no longer even returned calls from A.M.’s great-grandmother. The foster mother’s adult son, who had a drug problem, had moved back home with his girlfriend, and the two would often fight in front of the children. At this home, A.M. was forced to drink vinegar and to run laps in the summer heat as punishment. A.M. disclosed this treatment, and DFPS removed the girls after almost one year in this placement, but did not close the foster home. 74. DFPS placed the sisters in another purportedly therapeutic foster home. Although this home was considered pre-adoptive, DFPS did no individualized screening to ensure that this was a proper placement for A.M.; instead, the parents received official approval to operate a foster home only hours before learning that A.M. and her sister would be sent there. A.M.’s DFPS
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caseworker at that time promised repeatedly that A.M. would not be separated from her sister. 75. After A.M. and her sister had lived for more than a year and a half in this home, the foster parents agreed to adopt only the toddler. DFPS did not inform A.M. of this decision or otherwise prepare her. Instead, one day when A.M. was nine or ten years old, the foster father took A.M. for a drive and announced to the fourth grader that her little sister was being adopted by the family, but that A.M. was not. A.M. began acting out in school, and was eventually sent to a psychiatric hospital in McKinney, in Collin County. 76. After approximately one month in the hospital, in January 2007, A.M.’s DFPS caseworker, who had promised never to separate the sisters, collected A.M.’s possessions and picked A.M. up from the hospital. The DFPS caseworker drove A.M. more than 300 miles to a self-described “long-term care facility” located in Boerne, Kendall County, outside of San Antonio. There, A.M. lived in one of several cottages, each of which housed sixteen children. 77. In her sparsely furnished room at the Boerne facility, A.M. was allowed to display only one personal photograph. The bathrooms were kept locked, and A.M. was required to ask permission if she needed to use one. 78. Not long after A.M. arrived at that facility, she began to suffer from tremors and shaking of her extremities due to one of the psychotropic medications prescribed for her. A.M. had previously been prescribed this medication, and explained to staff at the new placement that she reacted badly to it, but she was given the drug anyway. A.M.’s reaction to the medication was so severe that she had to be hospitalized for approximately one week while she was weaned from the drug. 79. At the facility in Boerne, A.M. suffered injuries to her face and arms from being restrained on a concrete floor. She was administered several psychotropic medications every
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morning by a staff member who would apologize as she gave the child the drugs. The medications made A.M. vague and inattentive until about one in the afternoon. The staff member who was designated as A.M.’s counselor or therapist starting in mid-2010 was provided no information by DFPS about A.M.’s history, including the circumstances of A.M.’s removal from home. 80. While in this facility, A.M. was placed far from her home, and eight hours from her great-grandmother. Even when her great-grandmother was able to visit, A.M. was permitted to leave the facility campus for only a few hours. 81. While A.M. was at this placement far from the DFPS Region where her case was being managed, her DFPS case was reassigned five times and no DFPS worker ever visited A.M. After three years at the institution, in late January 2011, DFPS instructed A.M.’s counselor at the Boerne placement to prepare the child to be moved within the week to a new foster home. A.M. had one telephone conversation with the mother at the foster home prior to being moved. In early February 2011, DFPS moved A.M. to a foster home in Smith County. 82. Defendants have violated A.M.’s constitutional rights by failing to develop and implement an appropriate plan for her; failing to protect her from harm while in care; placing her in homes and facilities that are not appropriate for her needs; failing to arrange for reasonable contact with her sisters or other family members; placing her far from her home community; allowing her to be heavily and unnecessarily medicated; isolating her in a congregate setting for years without any effort to find her a less restrictive placement; and failing to develop and implement a plan to enable A.M. to leave DFPS custody and grow up in a permanent home.
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J.S. 83. J.S. is a nine-year-old boy from Morton, in Cochran County, about an hour west of Lubbock. Since J.S. came into state custody, he has spent his time institutionalized at two different RTCs, in a group home, and in a series of foster homes. Many of these placements have been hundreds of miles from his home community. DFPS has failed to take the necessary steps to ensure that J.S. will be raised in a permanent family, and has also failed to ensure that he receives the services he needs to address the trauma he has suffered. Instead, DFPS has consented to his treatment with powerful psychotropic drugs. 84. J.S. and his then sixteen-year-old sister were removed from their mother’s home in 2007, along with the sister’s own infant child, because of the mother’s neglect. The three children were first placed in basic foster care in Lubbock. In November 2007, DFPS separated J.S. from his sister and niece and sent him to a residential treatment center in Victoria, more than 500 miles south of Lubbock. DFPS made this placement change without notifying his attorney ad litem, thereby contravening both a state statute and a standing order of the Lubbock court that explicitly require notification in such instances. J.S., only five years old at the time, was the youngest child at the institution, which also housed some adult mental patients. 85. The walls of J.S.’s room at the RTC were bare cement block, painted white, and the only furniture was a bed in the middle of the room. The few clothes he had were not appropriate for the weather. The five-year-old asked the facility staff to help him get a photograph of his sister, but they did not do so. On one occasion when his attorney ad litem visited him at the RTC, J.S. asked her for a hug, telling her that “they’re not allowed to touch you here.” 86. DFPS took permanent managing conservatorship of J.S. while he was at this facility. Although J.S.’s mother did not comply with her service plan and did not appear to be capable of
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appropriately parenting him, DFPS’s goal for J.S. remained reunification and so no steps were taken to free him for adoption. Instead, DFPS arranged for telephone visits with his mother and sister, during which both would repeatedly tell J.S. that he would be coming back to live with the family. These visits upset J.S., causing him to act out violently. 87. After a year at the RTC, J.S.’s behavior did not improve. He was violent toward himself and others. In November 2008, the court found J.S.’s progress at the RTC unsatisfactory, and ordered that he be transferred closer to home. 88. DFPS found a placement for him in a foster home in Lubbock. While at this foster home it became clear that J.S. had been damaged by his year at the RTC. The child was assessed as requiring specialized services, and he was subsequently moved to a therapeutic foster home in Lubbock. The parents in this home wanted to adopt J.S., but were told that this was not possible, as he was not freed for adoption. 89. When a neighbor reported that the foster father had physically abused another foster child in the home, J.S. was removed and placed in a different therapeutic foster home. After these allegations were found to be without basis, J.S. was returned to the foster parents who had wanted to adopt him. By this point, however, J.S.’s behaviors had spun further out of control, and he had begun to speak of suicide. The foster mother thought that she could cope with the behaviors and help J.S. Instead, DFPS shipped J.S. to an RTC in Denton, some 300 miles from Lubbock. He is there now. 90. At this RTC, J.S. attends an on-campus school, where he is frequently restrained and has “multiple daily incidents of aggression.” He is in the second grade. As of October 2010, J.S. was receiving four psychotropic medications. He is making little progress in his therapy, which the treatment center provides for one hour each week.
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91. Though he has just turned nine years old, this boy who came into foster care at the age of five has no prospects of leaving. He cannot go home to his family, but he is not legally free to be adopted by a family that still wants him. Long periods of institutional care and moves from one placement to another have left him traumatized and violent to himself and others, a condition that is now addressed by frequent restraints and powerful psychotropic medications. 92. Defendants have violated J.S.’s constitutional rights by failing to provide him the therapy he needs to address the trauma he suffered at home; traumatizing him further by subjecting him to unplanned or ill-planned placement moves, institutionalization, inadequate therapy and the use of powerful psychotropic medications; and failing to take appropriate action to achieve permanency for him.
K.E. 93. K.E. is a sixteen-year-old girl from Odessa, in Ector County. K.E. was barely eight years old when she was brought into foster care, and, over the nearly eight years she has been in the state’s care, DFPS has repeatedly failed in its obligation to provide for her safety and well-being. Instead of providing her services and therapy to deal with the trauma she suffered before entering the state’s custody, DFPS has compounded that trauma by consigning her to institutional placements at a young age; subjecting her to numerous, frequent, and far-flung placement moves, thereby preventing her from establishing lasting relationships with caregivers, therapists, or even other children; failing to provide her with effective mental health services; allowing her to be medicated with powerful psychotropic drugs; and failing for years to find her an appropriate permanent home. As a result of this treatment by DFPS, K.E.’s condition has deteriorated while she has been in care, to the point that she has needed psychiatric hospitalization on at least five occasions.
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94. DFPS removed K.E. from her home because of parental neglect, and placed her initially in a therapeutic foster home, where she remained for a little less than two months. From there, she was placed in an emergency shelter for almost three months, in violation of state law. The Department then began shuffling her through a series of placements, primarily congregate settings and institutions. Most of these were far from her home community, making it difficult for her family to visit or for her caseworker to truly monitor her treatment and safety. 95. Over the last eight years, DFPS has moved K.E. through at least nineteen different placements, most of them RTCs and emergency shelters. 96. DFPS has placed K.E. in five different RTCs in the Houston area, over 500 miles from K.E.’s home. One of the RTCs in which she was placed has had at least 56 confirmed licensing violations in the last two years, including such things as failure to maintain proper fingerprint records of staff, failure to give prescribed medication to children on time, inadequate supervision of children, transporting an unsafe number of children at one time in a van, and serious deficiencies in the physical plant and furniture. 97. Although RTCs are intended to be temporary treatment programs that address children’s emotional and behavioral problems, K.E. has been moved from one to another. Until her current placement in a therapeutic foster home in Carroll in January 2011, K.E. had not been placed with a family since July 2008. 98. K.E. has developed emotional and psychological problems while growing up in the state’s custody without a permanent home, and is now being given four psychotropic medications concurrently. 99. While K.E. is nominally in the tenth grade, her true academic level is lower because her frequent moves have made it impossible for her to progress as she should in school.
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100. K.E. is currently placed in a therapeutic foster home in Carroll, in Smith County, more than seven hours drive from her home in Odessa. Her biological family is unable to visit her in such a distant placement. K.E. has complained that she is not appropriately cared for in the foster home, and the foster parent has twice requested that she be moved. Thus far, DFPS has not located a new foster home for K.E., and her caseworker has indicated that she may end up again in an RTC. 101. K.E. hopes for a relationship with a loving adult, but due to her distant placements and frequent moves, there are virtually no adults with whom she feels close. Years of placements in institutions far from her home community have left her socially isolated. 102. DFPS has failed to identify a permanent home for K.E. This child will likely age out of care after two more years of being shuffled around the state by DFPS, moving from one institution to another in a world she did not make or choose. 103. Defendants have violated K.E.’s constitutional rights by subjecting her to frequent moves; warehousing her in restrictive institutions; placing her far from her home community; failing to develop and implement an appropriate plan for her care and treatment; failing to arrange for adequate therapy to address the trauma she has suffered both before and while in DFPS custody; consenting to her medication with multiple psychotropic drugs; and failing for years to identify or plan for an appropriate permanent placement.
D.P. 104. D.P. is a sixteen-year-old girl from Lockhart, in Caldwell County. D.P. was only six years old when she was taken into foster care, and, over the past ten years, DFPS has repeatedly failed in its obligation to provide for her safety and well-being. Instead of providing her with services and therapy to address the abuse she suffered at the hands of her mother and
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grandfather, DFPS has compounded that trauma by failing to provide her with critically needed mental health evaluations and services; allowing her to be overmedicated with powerful psychotropic medications and chemical restraints; separating her from her sisters; and failing to find her an appropriate permanent home. Moreover, DFPS has subjected this child to at least 28 placement moves, including eight RTCs and eight emergency shelters, thereby preventing her from establishing lasting relationships with caregivers, therapists or even other children. Most egregiously, DFPS has placed D.P. in inadequately screened foster homes in which she was subjected to additional sexual abuse. 105. In September 2001 when D.P. was six, DFPS removed her and her then-newborn sister from their home because the baby had tested positive for cocaine. Later, it was determined that their drug-addicted mother had physically abused and neglected D.P. and had failed to protect her from sexual abuse by her grandfather. D.P. herself had been exposed to cocaine in utero, and subsequently D.P.’s mother had another daughter in 2003 who was also removed at birth because of exposure to the drug. 106. After removing D.P. from her home, DFPS first put the six-year-old in an emergency shelter for a few days. DFPS next placed her in one therapeutic foster home and then another; she spent about four months in each of these placements. 107. Although initially placed together, the sisters were soon moved to separate placements and have since completely lost contact with each other. Both of D.P.’s sisters have since been adopted, by different families. 108. In 2002, DFPS returned D.P. to her home for a trial reunification without adequately assessing whether her mother was capable of caring for her and without providing sufficient services to make the reunification successful. The agency removed D.P. again less than four
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months later. DFPS then sent the young girl to another therapeutic foster home, her third such placement in just over a year. While she was in this home in 2003, D.P. was freed for adoption and DFPS assumed PMC of the child, then eight years old. 109. A few months later, DFPS sent D.P., age nine, to an RTC. DFPS left D.P. in this institution for almost two and a half years. 110. DFPS eventually moved D.P. in 2006 from that institution into a foster home without ensuring that necessary services would be provided to support the placement. The placement disrupted after not quite six months when the foster parents were unable to cope with the behaviors of this traumatized child. 111. In the three and a half years between December 2006 and May 2010, D.P. was moved at least sixteen times. At least five of these placements were in emergency shelters; in fact, D.P. spent the entire five-month period from October 2007 through February 2008 exclusively in emergency shelters, contrary to Texas law. At least five other placements were in RTCs, and five more were in juvenile detention centers. At least one placement was in a psychiatric hospital. One of the placements was in San Angelo, more than 200 miles from her home. 112. D.P. was removed from one of the few foster homes in which DFPS briefly placed her during this period because of concerns that she may have been sexually abused by her foster mother. 113. In May 2010, DFPS sent D.P. to live with an aunt and uncle, who were neither licensed nor overseen by any licensed foster-care agency. D.P.’s uncle sexually abused her while she was placed in that inadequately-supervised kinship home. 114. To escape the abuse by her uncle, D.P. ran away and, with nowhere else to go, she found her way back to one of her prior placements. When that placement alerted DFPS, the
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Department sent her to a juvenile detention center for three days. 115. From the juvenile detention center, DFPS next moved D.P. to an emergency shelter for almost one month, before sending her to a psychiatric hospital, where she was prescribed as many as six psychotropic medications concurrently. These drugs have caused her to gain about 30 pounds since the summer of 2010. 116. D.P. was discharged from that psychiatric hospital to an emergency shelter – her seventh shelter placement during her time in the state’s PMC. From the shelter, DFPS sent D.P. to an RTC, where she stayed for less than two months. 117. Between late December 2010 and early February 2011, D.P. was hospitalized, then placed in an RTC, and then hospitalized again. This second hospital admission was extended for more than a week past her discharge date simply because DFPS found no place else to put her. 118. On February 2, 2011, DFPS placed D.P. in a foster group home three hours from Lockhart which housed eight or nine other girls. There was very little supervision in this group home and D.P. ran away. 119. In late February 2011, D.P. was again hospitalized. At this hospital, the staff chemically restrained D.P., although this is prohibited by DFPS regulation. D.P. was groggy and struggled to remain awake because of these drugs. 120. Although her behaviors did not change from the beginning of her most recent hospital stay to the end, D.P. was certified by the hospital as “stable” and the hospital told DFPS to move her to a new placement. In March 2011, DFPS placed D.P. in the only setting that would accept her: another RTC more than six hours from her home jurisdiction. 121. Because of D.P.’s frequent moves, some of her school credits have not been properly recorded, a record-keeping error that may force her to repeat a grade. Despite the difficulties
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created by such frequent moves, D.P. has always done well in school. However, when she was asked recently to name a favorite academic subject, she replied “I’ve been to so many schools – what’s the point?” 122. All told, DFPS has moved D.P. through at least 33 placements during the seven years she has been in the state’s PMC, in addition to her first four placements before entering the state’s PMC. With such a peripatetic existence, D.P. has been unable to form any lasting relationships. She has complained that she has no best friend and has no adults to whom she can turn. 123. As D.P.’s caseworker has said to the child’s attorney: “For God’s sake – she’s been in care for ten years and we haven’t been able to do anything for her.” At sixteen years old, D.P. is likely to remain in care until she ages out at eighteen. 124. Defendants have violated D.P.’s constitutional rights by failing to develop and implement an appropriate plan; failing to protect from her from abuse while in their care; subjecting her to frequent moves; placing her in inappropriately restrictive institutions; placing her far from her home community; failing to arrange for adequate therapy to address the trauma she has suffered both before and while in DFPS custody; subjecting her to overmedication; separating her from her sisters and failing to arrange reasonable contact with them; and failing to identify or plan for an appropriate permanent placement or even to have the Adoptions Unit review her file.
T.C. 125. T.C. is a sixteen-year-old boy from Corpus Christi, in Nueces County. He entered Texas foster care when he was eight years old. Over the nearly eight years that he has been in the state’s custody, DFPS has moved T.C. through at least twenty placements, many in distant parts of the state. Indeed, T.C. has spent almost five years in state custody in eight different institutions. T.C. remains in foster care without a permanent home, although he has been free for
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adoption for more than six years. 126. T.C. is one of eight children. He has four older half-siblings and three other brothers. T.C.’s family has a long history of involvement with the child welfare system dating back to at least 1987. Three of his half-siblings were found to have been sexually abused. T.C. had been in foster care at least once before in Ohio when he was just three years old. 127. DFPS brought T.C. and his three brothers into foster care in April 2003 when his parents were arrested. T.C. was found to have been physically and sexually abused. 128. DFPS first put T.C. in a foster home placement that lasted just seven days. During T.C.’s next two months in state custody, DFPS moved him through two more foster homes before sending him, at just nine years old, to an RTC in Victoria. He remained there for eleven months. 129. T.C. was discharged from that RTC May 2004. Over the next six months, DFPS again moved him through two foster homes and an emergency shelter. During this time, he entered the PMC of the state and was legally freed for adoption. 130. T.C. was next placed in what would be the first of seven psychiatric or behavioral hospitals. The ten-year-old boy remained hospitalized for nine months. When T.C. was discharged from the hospital in October 2005, DFPS moved T.C. to another RTC and left him there for over a year and half. 131. Over the course of the next five years, DFPS cycled T.C. through a series of foster homes, RTCs, and hospitalizations. At one point, DFPS moved T.C. to a relative’s home, but this lasted for just one month. T.C.’s placements have been as far away from his home as San Antonio, Waco, and even Tyler. 132. One of the RTCs where DFPS placed T.C. in September 2009 had a history of licensing violations including incidents in which staff members beat, choked, cut, and bruised children; a
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riot broke out when staffing was insufficient to control the children; and children attempted suicide when staff failed to supervise them. T.C. remained in this facility for over one year. T.C.’s emotional state distinctly deteriorated while at this RTC. He was eventually sent to an adult jail for several days because he threw a rock at an administration building. 133. T.C. is currently in an RTC in Greenville, over 450 miles from his hometown of Corpus Christi. 134. DFPS has separated T.C. from his three brothers, who were eventually adopted together by a family in Corpus Christi. He has visited with them or with his half-siblings in years. One of his brothers would like to reestablish contact with T.C., but that has not occurred as the teenage brothers are placed over 450 miles apart. 135. The only person with whom T.C. truly has a relationship is his DFPS caseworker. She has been unable to visit him regularly, if at all, in his last two placements because of the distance. 136. T.C.’s frequent moves from one placement to another have been accompanied in most instances by a change of therapist, as well as transfers from one school to another, limiting both his treatment and his educational progress. 137. During T.C.’s years in foster care, his emotional and psychological status has deteriorated. T.C. has been diagnosed at various times as having ADHD, depression, bipolar disorder, anxiety, and Asperger’s syndrome. T.C. has been placed on several psychotropic medications. 138. On more than one occasion, T.C. has run away from an RTC and sought to get himself admitted at a hospital. 139. In nearly eight years of having this child in state custody, DFPS has failed to find T.C. a permanent home with a loving family. Nor has DFPS prepared T.C. to live on his own if DFPS
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ultimately fails to secure a permanent home for him and he ages out of DFPS custody. 140. Defendants have violated T.C.’s constitutional rights by separating him from his siblings; failing to place him in appropriate homes or placements that meet his needs; failing to develop and implement an appropriate plan for his care; failing to stabilize or support his placements while in their care; subjecting him to frequent moves; placing him far from his home community; failing to arrange for adequate therapy to address the trauma he has suffered while in DFPS custody and before he entered its custody; failing to protect him from emotional harm while in care; failing to identify or plan for a permanent and loving home; and failing to prepare him for independent living in the likely event that he ages out of DFPS’s care.
Named Plaintiffs, Collectively 141. All of the harms that have been inflicted on the Named Plaintiffs are a direct result of Defendants’ operation of an unconstitutional system that they know is harming children. 142. Defendants’ actions and inactions with respect to the Named Plaintiffs are part of a systemic pattern of conduct that has caused, and continues to cause, irreparable harm. Defendants have violated and acted with deliberate indifference to and beyond the bounds of professional judgment regarding the Named Plaintiffs’ constitutional rights by failing to provide them with appropriate and stable placements; by allowing them to be placed in unnecessarily restrictive placements that do not meet their needs; by failing to ensure that they receive necessary mental health services; by failing to make timely and meaningful casework contacts with them and monitor their progress in foster care in order to ensure their safety and well-being; by failing to provide them with monitoring and services necessary to prevent them from deteriorating physically, psychologically, emotionally, educationally, or otherwise while in state custody; by failing to support their family and community relationships, in particular by not
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providing sibling visits and by moving them to distant placements far from their homes; by failing to provide case management and planning in accordance with their individual needs, best interests, and professional standards; and by failing to develop and implement a viable permanency plan that will allow them to leave foster care and secure safe and appropriate permanent homes in accordance with their individual needs, best interests, and professional standards. B. Next Friends 143. Named Plaintiff M.D. appears by her next friend, Sarah R. Stukenberg. Ms. Stukenberg serves as M.D.’s court-appointed attorney ad litem, a role she has held on and off since M.D. entered DFPS custody. She knows M.D. personally and has visited her in several of her foster placements. Ms. Stukenberg is familiar with the issues regarding M.D.’s foster care custody described here, and is suited to represent M.D.’s best interests in this case. Ms. Stukenberg is a licensed attorney in the State of Texas, and maintains her principal office in Corpus Christi, Texas. 144. Named Plaintiff D.I. appears by his next friend, Nancy Pofahl. Ms. Pofahl serves as D.I.’s court-appointed attorney ad litem, a role she has held since December 2009. She knows D.I. personally, is familiar with the issues regarding his foster care custody described here, and is suited to represent his best interests in this case. Ms. Pofahl is a licensed attorney in the State of Texas, and maintains her principal office in Houston, Texas. 145. Named Plaintiff Z.H. appears by his next friend, Carla B. Morrison. Ms. Morrison serves as Z.H.’s court-appointed attorney ad litem and guardian ad litem, dual roles she has held since Z.H. entered DFPS custody. She knows Z.H. personally and has visited him in several of his foster placements. She is familiar with the issues regarding his foster care custody described here, and is suited to represent his best interests in this case. Ms. Morrison is a licensed attorney
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in the State of Texas, and maintains her principal office in San Antonio, Texas. 146. Named Plaintiff S.A. appears by her next friend, Javier E. Solis. Mr. Solis serves as S.A.’s court-appointed attorney ad litem, a role he has held since S.A. entered DFPS custody. Mr. Solis knows S.A. personally and has visited or spoken to her by telephone in several of her foster placements. He is familiar with the issues regarding S.A.’s foster care custody described here, and is suited to represent her best interests in this case. Mr. Solis is a licensed attorney in the State of Texas, and maintains his principal office in Weslaco, Texas. 147. Named Plaintiff A.M. appears by her next friend, Jennifer Talley. Ms. Talley is a licensed master social worker who worked for over 21 years with children in the care of the Texas Child Protective Services system. During the last fifteen of those years, Ms. Talley worked exclusively with the aging out population because she was so concerned by the lack of permanency for foster youth. While Ms. Talley has not worked directly with A.M., she is very aware of the challenges faced by A.M. as a youth in PMC. Having learned A.M.’s story, she is concerned about her care and the ability of DFPS to meet her needs. Ms. Talley is familiar with the issues regarding A.M.’s foster care custody described here, and is suited to represent her best interests in this case. Ms. Talley currently works as a licensed master social worker in the State of Texas, and maintains her principal residence in Bulverde, Texas. 148. Named Plaintiff J.S. appears by his next friend, Anna J. Ricker. Ms. Ricker serves as J.S.’s court-appointed attorney ad litem, a role she has held since J.S. entered DFPS custody. She knows J.S. personally, is familiar with the issues regarding his foster care custody described here, and is suited to represent his best interests in this case. Ms. Ricker is a licensed attorney in the State of Texas, and maintains her principal office in Levelland, Texas. 149. Named Plaintiff K.E. appears by her next friend John W. Cliff, Jr. For approximately 25
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years, Mr. Cliff has accepted appointments to be a court-appointed attorney ad litem for children and for parents in suits involving DFPS and children in foster care. While Mr. Cliff has not worked directly with K.E., he is very aware of the challenges faced by K.E. as a youth in PMC. Having learned K.E.’s story, he is concerned about her care and the ability of DFPS to meet her needs. He has learned the critical details of K.E.’s history in foster care, is familiar with the issues regarding her foster care custody described here, and is suited to represent her best interests in this case. Mr. Cliff is a licensed attorney in the State of Texas, and maintains his principal office in Odessa, Texas. 150. Named Plaintiff D.P. appears by her next friend, Karen J. Langsley. Ms. Langsley serves as D.P.’s court-appointed attorney ad litem in Caldwell County. Ms. Langsley knows D.P. personally, and has visited and/or spoken to her by telephone in several of her foster placements. She is familiar with the issues regarding D.P.’s experiences in foster care described here, and is suited to represent her best interests in this case. Ms. Langsley is a licensed attorney in the State of Texas, certified as a specialist in Child Welfare Law, and maintains her principal office in Dripping Springs, Texas. 151. Named Plaintiff T.C. appears by his next friend Paul Swacina. Mr. Swacina serves as T.C.’s volunteer attorney ad litem, a role he has held for the last eight months. He knows T.C., is familiar with the issues regarding T.C.’s foster care custody described here, and is suited to represent T.C.’s best interests in this case. Mr. Swacina is a licensed attorney in the State of Texas, and maintains his principal office in Corpus Christi, Texas. C. Defendants 152. Defendant RICK PERRY is the Governor of Texas, and is sued in his official capacity. He is responsible for ensuring that all Texas agencies comply with applicable federal and state law, and he oversees and directs the activities of the Texas Health and Human Services
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Commission (“HHSC”) and the Department of Family and Protective Services, pursuant to the Texas Constitution Article IV Sections 1 and 10, and to the Texas Government Code Title 4, Chapter 531. His business address is Office of the Governor, State Insurance Building, 1100 San Jacinto, Austin, Texas 78701. 153. Defendant THOMAS SUEHS is the Executive Commissioner of HHSC, and is sued in his official capacity. Pursuant to Texas Government Code Section 531.0055 et seq., the Executive Commissioner of HHSC has broad policy- and rule-making authority for HHSC and its constituent agencies, including DFPS. Executive Commissioner Suehs reports to the Governor, Rick Perry, and serves at his pleasure. Defendant Suehs’ business address is Texas Health and Human Services Commission, Brown-Heatly Building, 4900 N. Lamar Blvd., 7th Floor, Austin, Texas 78751. 154. Defendant ANNE HEILIGENSTEIN is the Commissioner of DFPS, and is sued in her official capacity. Pursuant to the Texas Government Code Title 4, Chapter 531, she is responsible for administering properly and efficiently all DFPS child welfare services and programs; providing for the care of the children served by DFPS; directing the placement of children in appropriate state programs and/or facilities; and assuring that all contracted and other programs and facilities providing child welfare services operate in conformity with constitutional, statutory, and regulatory requirements. Pursuant to Texas Government Code Section 531.0056(a), the Commissioner of DFPS is appointed by the Executive Commissioner of HHSC, with the approval of the Governor, and serves at the pleasure of the Executive Commissioner. Her business address is Texas Department of Family and Protective Services, 701 West 51st Street, Austin, Texas 78751.
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CLASS ACTION ALLEGATIONS 155. This action is properly maintained as a class action pursuant to Rule 23(a) and 23(b)(2) of
the Federal Rules of Civil Procedure.
156. The putative Class (“Plaintiff Children”) is comprised of all children who are now and all
those who will be in the Permanent Managing Conservatorship of DFPS. Although these
children are (and will be) in different living situations – including foster family homes, foster
group homes, institutional settings, and with relatives – they are all in out-of-home or
“substitute” care, and the State of Texas has been (and will be) Permanent Managing
Conservator for all of them. In 2010, there were approximately 12,000 children in the state’s
PMC. The Class is sufficiently numerous as to make joinder impracticable.
157. The questions of fact and law raised by the Named Plaintiffs’ claims are common to all
children in the state’s PMC, the Class they seek to represent. Each child in the state’s PMC
relies on Defendants for child welfare services, and is harmed or put at risk of harm by the
systemic and legal deficiencies of Texas’s child welfare system. The claims alleged by the
named Plaintiffs and the resultant harms are typical of the claims of each member of the putative
Class.
158. Questions of fact common to the Class include:
a. Whether Defendants fail to maintain a caseworker staff of sufficient size and capacity to perform the tasks critical to Plaintiff Children’s safety, permanency, and wellbeing;
b. whether Defendants fail to provide timely and appropriate permanency planning and services necessary to ensure that Plaintiff Children are either safely reunited with their families when appropriate or, when they cannot return home, that they are freed for adoption and promptly placed in a permanent home as required by law and by reasonable professional judgment;
c. whether Defendants fail to provide sufficient numbers and types of foster care placements necessary to assure Plaintiff Children safe, appropriate, and stable foster care placements;
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d. whether Defendants fail to provide Plaintiff Children with appropriate monitoring and oversight necessary to keep them safe; ensure their well-being; and to prevent them from deteriorating physically, psychologically, or otherwise while in custody as required by law and by reasonable professional judgment;
e. whether Defendants, by frequently placing Plaintiff Children far from their home communities, fail to provide Plaintiff Children with the supports necessary to maintain appropriate relationships with siblings, parents, and other family members;
f. whether the actions or inactions of Defendants comprise a pattern or practice of depriving Plaintiff Children of the following, to which they are entitled under the laws of the State of Texas:
i. the monitoring by DFPS of contracted substitute care, including that DFPS ensure that such services are provided in accordance with federal law, the laws of the State of Texas, and the rules of the Department of State Health Services and the Texas Commission on Environmental Quality; and
ii. placement decisions made by DFPS using “clinical protocols to match a child to the most appropriate placement resource”; and
g. whether the foregoing actions or inactions of Defendants cause harm and risk of harm to Plaintiff Children.
159. Questions of law common to the Class include:
a. whether Defendants’ actions and inactions violate Plaintiff Children’s rights to be free from harm while in state custody as required by the Substantive Due Process clause of the Fourteenth Amendment to the United States Constitution;
b. whether Defendants, through their actions and inactions, violate Plaintiff Children’s rights to family association under the First, Ninth and Fourteenth Amendments to the United States Constitution; and
c. whether Defendants’ actions and inactions violate Plaintiff Children’s procedural rights, under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, not to be deprived of a range of state-created legal entitlements.
160. The Named Plaintiffs will fairly and adequately protect the interests of the Class.
161. Each Named Plaintiff Child appears by a next friend, and each next friend is sufficiently
familiar with the facts of the child’s situation to fairly and adequately represent the child’s
interests in this litigation.
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162. Plaintiffs’ counsel are: a. attorneys from the firm Canales & Simonson, P.C., a law firm in Corpus Christi; b. attorneys from the firm Haynes and Boone, LLP, an international law firm with Texas offices in Austin, Dallas, Fort Worth, Houston, and San Antonio; c. attorneys from the firm Yetter Coleman LLP, a Texas law firm with offices in Houston and Austin; and d. attorneys from Children’s Rights, a non-profit legal organization with its office in New York.
163. These lawyers have extensive experience litigating complex class action lawsuits in federal court, including substantial experience in child welfare class action institutional reform litigation. Plaintiffs’ attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class. Plaintiffs’ counsel therefore are well-suited to fairly and adequately represent the interests of the Class. 164. Defendants have acted or failed to act on grounds generally applicable to the Plaintiff Class, necessitating declaratory and injunctive relief for the Class. Plaintiffs’ counsel know of no conflicts among Class members.
FACTUAL ALLEGATIONS A. The Structure Of The Texas Foster Care System 165. The Texas foster care system is administered by the state’s Department of Family and Protective Services (“DFPS”), a division of the Health and Human Services Commission (“HHSC”). Within DFPS, the division of Child Protective Services (“CPS”) is required to investigate reports of child abuse and neglect of children not in foster care. Then, for those children removed into foster care, it is required to provide temporary placements while taking action to either reunify the child with his family or to place the child with a new permanent family. Temporary placements are required to be based on individualized assessment of
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children’s needs, and to be supported by services delivered to meet those needs. These mandates are assigned to a Field Operations arm divided into eleven geographic regions headed by regional directors. The DFPS Commissioner has overarching responsibility for all eleven regions. 166. When a child is removed from his family due to abuse or neglect, he is placed in substitute care under the Temporary Managing Conservatorship (“TMC”) of the state. As conservator, DFPS undertakes the constitutional and statutory duties of ensuring the child’s safety, permanency, and well-being. 167. During the period of TMC, DFPS is required to make reasonable efforts to reunify children with their families if safe and appropriate, or to make timely efforts to legally free them for adoption or find another permanent placement for them. While the child is in the state’s TMC, Texas law requires the appointment of an attorney to represent the child’s expressed interests and a guardian ad litem to protect the child’s best interests in the state court proceeding affecting the parent-child relationship. 168. Under Texas law, TMC lasts for one year, or at most eighteen months. After that time, if the child has not been reunited with his birth family or provided with some other permanent family, he enters the state’s Permanent Managing Conservatorship (“PMC”). Once the child is in the state’s PMC, that initial legal proceeding is concluded. After entry of that final order, Texas state law provides no mandate that the child continue to be represented as he was in TMC. Thus, a substantial number of children in the state’s PMC have no independent adult obligated to represent their expressed or best interests in state court proceedings held twice a year to review DFPS actions. 169. For each child under the state’s conservatorship, a DFPS caseworker is assigned. As
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conservator, the state is obligated to set and pursue permanency goals for each child, tasks that are assigned to the DFPS caseworker. Permanency goals may include the child’s reunification with his family or permanent placement with a relative or other suitable individual, either through adoption or the award of PMC to that person. According to state policy and regulation, these goals are to be concurrently pursued until it proves inappropriate to return the child to his family. Only if there is a compelling reason why one of these permanency goals is not in the child’s best interest may DFPS set the goal of “another planned permanent living arrangement” for the child – in other words, a goal that the child remain in foster care until he reaches adulthood. DFPS’s permanency goals for the child are reflected in a case plan, which must be revised as often as necessary to reflect changes in the case. At a minimum, DFPS must revise each child’s case plan every six months. 170. As long as a child is in the state’s conservatorship, the caseworker is also required to develop and implement a service plan for each child, to ensure the provision of individualized services that meet the child’s needs. Where a foster placement is administered directly by DFPS, the caseworker develops and implements this service plan directly. In Texas, however, most substitute care is provided by private entities. By contract, staff employed by the private provider are required to prepare and implement service plans for each child, consistent with permanency planning and permanency goals identified by DFPS. 171. When DFPS engages a substitute care contractor, the state retains its constitutional and statutory duties to ensure the safety, permanency, and well-being of children placed with that provider. The private contractors are monitored by the Division of Child Care Licensing (“CCL”), by DFPS’s contract management arm, and, in terms of day-to-day observations, by the caseworkers themselves.
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172. As conservator, the state is charged with placing children removed from their homes into appropriate settings that meet their needs. Approximately one-third of Texas foster children are placed in the unlicensed and unreimbursed substitute care of relatives. The remainder are in various types of paid “foster care” placements. DFPS licenses some of these placements directly; others are verified by directly licensed private child placing agencies (“CPAs”). 173. These placements include: emergency shelters, which afford short-term care when children are first removed from their families, or when foster placements unexpectedly disrupt; traditional foster family homes, which care for up to six children; Foster Group Homes (“FGHs”), which are foster family homes that house from seven to as many as twelve children; General Residential Operations (“GROs”), institutions in which staff care for thirteen or more children; and Residential Treatment Centers (“RTCs”), which are a subcategory of GROs that are intended to provide treatment services for children with emotional disorders. 174. Regardless of the child’s placement, DFPS remains ultimately responsible for his safety, health, well-being, education, and permanency. Yet, once a child crosses the legal threshold from TMC into PMC, all of these needs tend to receive significantly less attention from DFPS. 175. The Texas Health and Human Services Commission noted in its strategic plan for 2011 to 2015: “The demands of the new cases, with the legal deadlines looming, compete for attention with the demands of children whose legal case has achieved resolution, as the same workforce is serving both these stages of service. Subsequently, an increase in the number of children [a]waiting adoption may occur.” 176. A November 2010 report commissioned by the Texas Supreme Court Commission for Children, Youth and Families noted that the level of scrutiny paid to children’s cases “significantly decreases” when the child enters the state’s PMC. The report continued: “Though
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the State’s responsibility for the child’s life and well-being does not change – and arguably increases – the attention paid to the child’s case diminishes drastically. There is often a sense that the ‘clock stops ticking’ when the child enters Permanent Managing Conservatorship.” B. Defendants Are Causing Harm And Risk Of Harm To Plaintiff Children, Who Are
In The Permanent Managing Conservatorship Of The State. 177. Plaintiff Children in the long-term guardianship of the State of Texas have been doubly traumatized: first by the abuse and neglect that brought them into foster care, and second by their treatment at the hands of their state custodians. Children enter the state’s PMC because the determination has been made that they cannot safely be returned to home and family. Having taken Plaintiff Children into PMC, Defendants have a constitutional and statutory obligation to ensure their safety, permanency, and well-being. Contrary to that obligation, Defendants’ foster care system inflicts harm on this vulnerable population by (1) creating great instability and inflicting ongoing emotional harm by frequently moving them from one placement to another; (2) placing many of them for long periods in congregate care that cannot provide any permanency; (3) placing them in group placements that do not comport with reasonable professional standards; (4) separating them from siblings, significant family members, and their communities; (5) failing to provide them with necessary mental health services; (6) exposing them to abuse and neglect in care; and (7) leaving them to languish in foster care without planning for a permanent placement for them, until they age out of care unprepared for independent adult life.
1. Defendants Frequently Move Plaintiff Children From Placement To Placement, Causing Them Harm
178. Having already had their home lives disrupted, children in foster care are particularly vulnerable to being harmed in their mental and emotional health by further moves from one placement to another.
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179. DFPS policy acknowledges that children in foster care “have a high need for stability and continuity of care” and accordingly requires that DFPS avoid transferring children from one placement to another unnecessarily. 180. It is well documented that each move that a foster child experiences interrupts normal development and adds psychological trauma, with long-term implications for the child’s ability to develop healthy interpersonal relationships, good self-esteem, and even a conscience. Placement changes force these children to abandon relationships again and again, compounding their already profound sense of loss and abandonment. 181. Frequent moves also disrupt a child’s education. Research shows that each school change a foster child experiences can result in a loss of four to six months of academic progress. Delays in the transfer of school records – a common by-product of a placement move – impede children’s ability to advance with their peers in school. 182. Children suffering from such trauma and disruption frequently exhibit emotional and behavioral problems that require more focused or intensive services to address and correct. In many instances, DFPS addresses these emotional and behavioral problems by consenting to have children be prescribed powerful psychotropic drugs. In FY 2010, such drugs were administered to 13,775 foster children – 30.82% of all children who spent any time in foster care in Texas during that year. 183. Plaintiff Children are subjected to many harmful placement moves. According to a report by Texas Appleseed, a public interest law and advocacy organization in Austin, children who in 2008 had been in care for more than three years had experienced an average of eleven placements. 184. Some children experience many more placements during their time in the state’s PMC.
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In 2009, Plaintiff Children in Houston-area RTCs who had been in care seven to eight years had experienced an average of 19.4 placement moves. 185. Defendants have long failed to provide stable placements for the children in their custody. This has been noted in the periodic audits of DFPS’s performance conducted by the Administration of Children and Families (“ACF”), a division of the federal department of Health and Human Services. ACF conducts these audits, known as Child and Family Services Reviews (“CFSRs”), of all state child welfare systems to assess outcomes achieved for children who receive child welfare services, to identify areas in which systemic improvement is required, and to implement corrective actions. ACF has conducted two CFSR “rounds” in Texas, the first released in 2002 and the second in 2008. 186. In 2002, the First Round CFSR found placement stability to be an “Area Needing Improvement” in the Texas system. In the Program Improvement Plan (“PIP”) developed by the state in response to the First Round CFSR, Texas committed to improve this aspect of its foster care system. However, by the time of the Second Round CFSR in 2008, placement stability for Texas foster children had actually worsened. The Second Round CFSR found that only 20.8% of children who had been in DFPS custody for more than 24 months – all of whom, by definition, were in the state’s PMC – had experienced two or fewer placements. This performance was considerably worse than the national median of 33.9%. Overall, Texas performed twelfth-worst on placement stability out of the 51 jurisdictions surveyed in the Second Round CFSR. 187. The frequent moves that Plaintiff Children suffer are the direct result of a system with an overburdened and revolving workforce that does not timely and adequately assess children’s needs, Defendants’ failure to create and maintain placements adequate to meet the needs of
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children in the state’s PMC, and a placement matching process that does not take into account the needs of the child or the capacity of a specific placement to meet those needs.
2. Defendants Make Inappropriate Use Of Congregate Placements, Harming Plaintiff Children
188. Defendants fail to take appropriate and adequate measures to ensure compliance with federal law, DFPS policy, and reasonable professional standards, all of which specify that children brought into foster care custody must be placed in the least restrictive, most family-like setting appropriate to their needs. 189. Congregate care – placement in a group setting – may take a number of forms, both therapeutic and non-therapeutic. For some children with special therapeutic needs, the care they need may best be administered in an institutional treatment setting. But, in general, DFPS policy recognizes that congregate care of any kind is more restrictive than a family placement, and should be the placement of last resort. When congregate care – particularly non-therapeutic care – cannot be avoided, it should be as brief as possible. 190. Children in congregate care are less likely to achieve permanency of any kind. In FY 2009, 54% of the children adopted from foster care nationally were adopted by their foster parents. Because children in congregate care are not in a family setting, their placements deprive them of the very opportunity that produces the majority of public adoptions. 191. Studies have shown that, compared to children in family foster care, children in even short-term group care spend more time in foster care; are less often placed with siblings over time; are more likely to be re-abused; and are more likely to be placed far from home. Children in group care are also less likely to overcome problematic sexualized behaviors over time, and are more likely than youth in foster homes to be arrested during the five years after a stay in group care. Children and youth who spend the majority of their placement time in congregate
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settings complete fewer years of school, have poorer school achievement, and have lower educational aspirations than children in more home-like, family-based settings. 192. Looking particularly at children placed in RTCs and emergency shelters, a 2010 study by Texas Appleseed found that these children are much more likely to have negative outcomes such as remaining in care for longer periods of time, moving between placements frequently, and even remaining in care until they age out. 193. Texas makes inappropriate use of congregate placements, extending them for too long and moving children from one congregate setting to another. For instance, the CPS Handbook notes that emergency shelter services are appropriate “only during an emergency constituting an immediate danger to the physical health or safety of the child.” Yet, the federal government found in the state’s First Round CFSR that DFPS places children in emergency shelters unnecessarily, noting that for some children shelter placements are “a pattern throughout their foster care history.” In fact, for the years 2007 through 2009, the average length of time a Texas foster child remained in shelters ranged from 36 to 40 days, even though there are only limited exceptions to Texas regulations that cap shelter stays at 30 days and DFPS policy that caps them at fifteen days. And, if DFPS fails to secure a placement for a child within that limited period, the child is often sent to another shelter. 194. DFPS places even very young children in congregate placements. As of March 31, 2010, 563 children five years old or younger were in various congregate facilities in Texas. Studies have shown that institutional care is particularly damaging to young children such as these, causing a variety of harms, including delayed language development; poor mental development and adaptive skills; an increased risk of serious infectious illness; lower rates of adoption; and a greater likelihood of remaining in care.
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195. In 2009, the proportion of foster children age twelve and under in congregate care was higher in Texas than in all but one of the fifteen other largest foster care systems in the country. 196. Furthermore, children in Texas’s PMC are twice as likely to be in congregate placements as are foster children in the state’s TMC. As of March 31, 2010, 2,996 children – 25.2% of the children then in the state’s PMC – were in congregate care. As of that same date, only 12.7% (1,772 children) of the children in the state’s TMC were in congregate placements. 197. In Texas, General Residence Operations (“GROs”) house thirteen or more children, and provide only residential care. As of March 31, 2010, Texas had placed 652 foster children in such non-therapeutic GROs. Three hundred and eighty-one of those children were in the state’s PMC. 198. Many Plaintiff Children in congregate care are in Residential Treatment Centers (“RTCs”), a sub-category of GROs intended to provide on-site therapeutic treatment services to children with emotional disorders. As of March 31, 2010, 1,133 children in the state’s PMC were placed in RTCs, comprising three-quarters of the population of those institutions. 199. Too many Plaintiff Children who are placed in RTCs remain there long after such a restrictive and non-family-like placement is appropriate. Although RTCs are intended to address a child’s problems so the child can be moved to a family setting, Plaintiff Children are often moved from one RTC to another. 200. Some children are erroneously and inappropriately designated as needing high levels of care and these children are or are at risk of being placed in RTCs, being placed far from their homes, and being placed on psychotropic medications. It is more difficult to identify adoptive homes for these damaged and medicated children, putting them at risk of aging out of care and never finding a permanent family.
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201. Too many of the RTCs with which Defendants contract are overly restrictive, unsafe, austere, and unsanitary. Defendants too frequently contract with and place children in RTCs that provide substandard care, exposing Plaintiff Children to dangerous facilities which also do not provide Plaintiff Children with needed therapeutic services. 202. Defendants have failed to control the use of corporal punishment by staff at some RTCs, resulting in serious injuries to foster children. 203. The excessive and inappropriate use of congregate care for Plaintiff Children by Defendants is the direct result of a system in which the state has failed to develop an appropriate array of placements and supportive services, and DFPS places PMC children in whatever bed in whatever facility will accept them. DFPS’s workforce, which is responsible for each child’s well-being, is too overburdened and without the necessary resources to perform tasks critical to Plaintiff Children’s permanency and well-being.
3. Defendants Utilize A Category Of Congregate Foster Care Placements That Is Particularly Harmful to Children
204. Many Plaintiff Children are placed in another type of congregate placement: the socalled “Foster Group Home” (“FGH”). These placements have no more support or staff than a regular family foster home, and provide no specialized services different from those available in such a home – with the critical distinction that they house more children. 205. Under Texas regulations, the number of children in a family foster home is limited to six. Yet, each FGH houses from seven to twelve children in the same private foster home setting. DFPS policy recognizes that these FGHs are “more restrictive than foster-family homes.” 206. Professional standards do not recognize this hybrid form of placement, which is contrary to reasonable professional standards for both family homes and for congregate care. Texas’s FGHs depart from reasonable professional standards with regard to the maximum number of
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children in a home, adult to child ratios, requirements for waking supervision, and staff qualifications and training. 207. In particular, professional standards limit foster family homes to no more than five children, a size far exceeded by the twelve children allowed in a two-parent FGH and the eight children allowed in a single-parent FGH. 208. In a standard non-therapeutic group home of up to twelve children, professional standards require that at least one caregiver be awake at all times. There is no such requirement for FGH parents. 209. Rather than being the “home” setting that their name implies, these congregate placements can often be little more than poorly supervised dormitories. For example, in one FGH in Region 7, eight children slept together in a room that had originally been a garage. Another in Region 4, licensed to accommodate children with severe behavioral problems, housed as many as twelve foster children at once in a collection of mobile homes converted into bedrooms. 210. As of March 31, 2010, 1,328 children in the state’s PMC were placed in foster group homes. Plaintiff Children are placed in FGHs about twice as often as children in TMC. 211. Plaintiff Children are placed in foster group homes and remain there when they should be placed in less restrictive, truly family-like settings. 212. Defendants’ use of foster group homes is the direct result of a system in which placement capacity is inadequate to meet the needs of children in the state’s PMC, and whose workforce is not of sufficient size and capacity to perform tasks critical to Plaintiff Children’s permanency and well-being.
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4. Plaintiff Children Suffer Abuse And Neglect In State Custody 213. The purpose of foster care is to protect children who have suffered trauma at home from
further maltreatment. Yet, Plaintiff Children are frequently re-victimized while in DFPS
custody, in dangerous and inadequately monitored substitute care placements.
214. For example, in 2010, the Houston Chronicle reported that “[r]esidential treatment center
records reviewed by the Chronicle and [the Texas] Tribune show state investigators confirmed
hundreds of violations from mid-2008 through April of this year – at least 250 of them involving
abuse, neglect and mistreatment.” Some of these included:
a. Workers punched and choked children to get them to behave, and children were subjected to physical beatings;
b. Staff, and in one case, a staffer’s relative, sexually abused children;
c. Workers forced children to undress in order to prevent them from running away; and
d. Children who were supposed to be supervised attempted suicide.
215. Reports of licensing investigations in 2009 to 2010, prepared by CCL, indicate that
children in these foster homes and facilities suffered “abuse, neglect and exploitation as defined
in Texas Family Code 261.401,” such as:
a. Physical Abuse: Staff intentionally struck and choked child; staff member throttled a child at a RTC; foster parent hit child multiple times with a belt; children were spanked with an object, causing visible injuries; caregiver spanked children with a belt, hand, and stick, leaving multiple bruises; staff slammed a child during a restraint, resulting in a bulging disk in the child’s neck;
b. Sexual Abuse: Staff and foster parents engaged in sexual conduct with children; staff compelled or encouraged children to engage in sexual conduct; and
c. Neglect: Foster child left alone and unsupervised in foster home for nine hours; foster parent left a feverish 23-month-old child in a crib without attention for 19.5 hours until the child was discovered unresponsive, barely breathing, and having suffered a possible seizure; foster parent left toddler in the care of an eight-year-old child for at least 40 minutes while she shopped; special needs child left unattended at an airport.
216. Such maltreatment of children in foster care is likely underreported. Defendants
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routinely fail to obtain sufficient information from Plaintiff Children about allegations of abuse or neglect during investigations. DFPS has documented instances where children were impeded from making allegations of abuse or neglect. Foster care providers do not always self-report abuse and neglect in care. 217. The use of restraints is also underreported. Recognizing that some restraint techniques may be dangerous and, if improperly applied, can even be fatal, Texas law requires that all licensed providers document and report any use of restraints on children in their care. Yet, in the two years that the law had been in effect, at least 68% of Texas RTCs did not fully comply with its mandate, as the Houston Chronicle reported in December 2010. DFPS’s failure to enforce this reporting mandate puts children at risk. 218. Even when Defendants have known of incidents of maltreatment, they have left Plaintiff Children at risk. The troubled history of Daystar, a now-closed RTC near Houston, is just one example. In 2008 to 2010, there were multiple confirmed incidents of abuse at this facility with a capacity of 141 children. It was not until a child died after being restrained and the coroner ruled the death a homicide that DFPS shut down the facility. 219. In particular, in April 2008, staff members encouraged developmentally disabled residents at Daystar to fight one another and rewarded the winners with junk food. The residents suffered significant injuries, including bruising and marks from biting each other, while staffers laughed and cheered. The incident was timely reported to CCL, which investigated and confirmed the incident, but no formal action was taken against the RTC. 220. The following year, in 2009, a Daystar staffer conducted an inappropriate sexual relationship with a mentally-ill sixteen-year-old resident from California who had been placed there. After the girl left the RTC, she notified California authorities, who contacted DFPS in
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January 2010. This allegation, also, prompted a CCL investigation. 221. It was only on June 11, 2010 – five days after the Houston Chronicle and Texas Tribune had reported the staff-initiated fighting matches from two years earlier – that DFPS stopped sending new children to Daystar and assigned a special monitor to the facility, who remained for approximately three months. 222. On November 1, 2010, two months after the monitoring period had ended, DFPS informed Daystar that it would be placed on probation for “persistent concerns about the facility and the children in its care,” – including a finding of sexual abuse based on the 2009 incident – but it would not be closed. Four days later, on November 5, 2010, a Texas foster child in PMC died of apparent asphyxiation after being restrainted at Daystar. He was the fourth child since 1993 to die of asphyxiation at the facility while being restrained by staff. 223. Daystar continued to receive state funds to provide care for the 24 Texas foster children who lived there until the end of 2010. Five out-of-state foster children remained in the stilllicensed facility until January 7, 2011. Only then, the day after the November 5 death was ruled a homicide, did DFPS revoke Daystar’s license and close the facility based on this history. 224. This child who died at Daystar was one of fifteen who died in DFPS custody in FY 2010 as a result of abuse or neglect. In the six-year period from 2005 to 2010, 64 children in foster care died due to abuse or neglect – a rate of one child every five-and-a-half weeks. In FY 2010, a child in foster care in Texas was statistically almost fifteen times more likely to die of abuse or neglect than a Texas child not in foster care. 225. The abuse and neglect suffered by Plaintiff Children in Defendants’ foster care system are the direct result of a system in which an overburdened, revolving, and inexperienced workforce does not timely and adequately assess children’s needs and does not make timely
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quality visits with children; placement capacity is inadequate to meet the needs of children in the state’s PMC; and Defendants fail to adequately oversee private providers.
5. Plaintiff Children Are Denied Necessary Services While In State Custody 226. Defendants fail to provide adequate mental health services to children in foster care. In the Second Round CFSR, Texas was found to be “not in substantial conformity” with “WellBeing Outcome 3: children receive adequate services to meet their physical and mental health needs.” 227. Reviewers determined that DFPS had “made concerted efforts to address the mental health needs of children” in only 68% of the cases reviewed, and the item was therefore rated as an Area Needing Improvement. In its 2007 Statewide Assessment, DFPS noted that “a lack of community resources, a lack of coordination of resources, and inaccessibility to mental health and behavioral health care impede[d] the ability of DFPS” to provide mental health services to the children in its custody. Stakeholders interviewed in the Second Round CFSR also noted “a lack of available behavioral and mental health services for children in foster care.” 228. The 2007 Statewide Assessment further noted: “In some areas of the state there are inadequate numbers of medical, dental, and behavioral health providers who are willing to take Medicaid. This is especially true in the rural, remote areas of the state.” Furthermore, it noted that families and caseworkers may have to travel far distances to obtain needed services. 229. Defendants continue to fail to ensure that there are sufficient mental health services for Plaintiff Children. In some geographic areas, there are limited numbers of providers, and the providers who are available do not always accept Medicaid or Texas’s public insurance. At times, it may take months just to get a psychological assessment. Commissioner Heiligenstein as recently as August 2010 has acknowledged that there continues to be an “imbalance in geographic distribution of services and providers.”
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230. In the face of these problems, Defendants fail to match children to placements supported by necessary services. When children are put in placements that are not supported by sufficient available services, those placements are likely to disrupt. 231. Services are also lacking for children placed with relatives. As of March 2010, 2,561 children in the state’s PMC – more than a fifth of the Plaintiff Class – were placed in relatives’ homes. In Texas, a kinship care provider is not required to be licensed as a foster parent or verified by a CPA. Accordingly, these homes do not necessarily meet the standards required for a licensed or verified foster home. Additionally, DFPS does not provide the training for kin providers that is required for licensed or certified foster parents. 232. And, although children placed with relatives are still in state custody, DFPS also fails to provide these children with the monthly foster care financial support that the state provides to children living with licensed foster parents – support intended to ensure that those children are provided with adequate food, clothing, and other necessities. 233. Although some relative caregivers would meet licensing standards, and they and the children in their care would then be entitled to additional services and support, the state has been ineffective at notifying relatives of this option. 234. DFPS’s failure to provide necessary services to Plaintiff Children is the direct result of a system in which service capacity is inadequate to meet the needs of children, and in which DFPS fails to assess the capability of particular placements to meet the needs of children placed there.
6. Plaintiff Children Are Frequently And Unnecessarily Separated From Their Siblings And Denied Visits With Their Families
235. Federal and state policy and reasonable professional practice dictate that children be placed with their siblings while in foster care unless there is a therapeutic or safety-related reason to separate them.
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236. In a December 2010 report to the Legislature, the Adoption Review Committee – whose members were appointed by Governor Perry and Executive Commissioner Suehs – noted that inappropriate sibling placement decisions “hinder and delay a child’s path to permanency.” Commissioner Heiligenstein similarly acknowledged in a February 2011 presentation to the Texas House Human Services Committee that sibling separation negatively impacts children’s well-being and permanency outcomes. 237. Many children in DFPS custody are separated from their siblings for no therapeutic or safety reason. DFPS reported in February 2011 that 18.5% of sibling groups in its custody were not placed together. In particular, DFPS often separates siblings who are teenagers or members of large sibling groups. 238. DFPS often fails to ensure that children who have been separated from their siblings are able to maintain relationships with each other. The Second Round CFSR found that DFPS did not make concerted efforts to promote visitation with siblings. Although, under DFPS policy, children in foster care are supposed to have at least monthly visits with siblings from whom they are separated, visits were less frequent in nearly half of the cases reviewed. In fact, in some of the cases reviewed, children had no visits at all with their siblings. 239. The Second Round CFSR found that DFPS failed to adequately support children’s visits with their families, or to consistently support children’s connections with family, siblings, school, and community. 240. Overall, because of poor visitation, Texas failed to meet the Second Round CFSR’s “Permanency Outcome 2: the continuity of family relationships and connections is preserved for children.” 241. Defendants’ frequent separation of Plaintiff Children from their siblings in care, as well
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as their failure to provide visits for children with their families where appropriate, are the direct result of a system in which the array of placements is inadequate to meet the needs of children in the state’s PMC, and in which an overburdened and revolving workforce does not timely and adequately assess children’s needs, does not make timely quality visits with children, and fails to plan appropriately for children’s permanent placements in suitable family homes.
7. Defendants Harm Plaintiff Children By Leaving Them To Languish In Care Without A Permanent Family And Age Out Of Foster Care Ill-Prepared For Independent Adult Life
242. The longer a child is in care, the more he is at risk of being subjected to all manners of harm. As the Children’s Commission noted in 2010: “A permanent living arrangement is important for good development.” 243. State regulations and federal law require DFPS to make reasonable efforts to find permanent homes for the children in its care. That includes either reunifying families where appropriate, or taking all necessary steps to seek and secure adoptive or other permanent families for these children. 244. DFPS has failed to meet its legal obligations and has caused harm to the children in the state’s PMC by permitting them to languish in foster care. As the Children’s Commission noted in 2010: “Historically, once the state has become a child’s PMC, DFPS and courts have accepted the PMC status as ‘permanent.’” 245. The average length of stay in foster care for children in the state’s PMC in FY 2010 was 42.5 months, or more than three-and-a-half years. For those children who aged out of care in FY 2010, the average length of stay was 60.2 months. 246. In FY 2009, 6,400 children then in the state’s PMC had been in care for three or more years. In testimony before the Human Services Committee of the Texas House of Representatives, Commissioner Heiligenstein noted that in 2010 about 500 Texas children had
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been in foster care for at least ten years. 247. The longer children remain in the state’s PMC, the less likely they are to leave to permanent homes. Of the children who left foster care in 2008 having been in PMC for less than one year, over 79% exited to adoption and only 5% aged out. In contrast, over 57% of those children who spent three or more years in PMC before exiting that year aged out, and just 30% were adopted. 248. Defendants have long been aware of their failure to move Plaintiff Children to permanent homes. In 2007, Texas reported the sixth worst score in the nation on the national indicator, “Achieving Permanency For Children And Youth In Foster Care For Long Periods Of Time.” 249. Moreover, on one key component of that national indicator, children “growing up in foster care,” the state’s performance was considerably worse than the national median in 2007 and further worsened significantly by 2009. 250. More than 1,300 youths exited the state’s PMC in FY 2008 by aging out, having languished in foster care for years. 251. Sixty-six percent of youth who aged out in FY 2009 had been in foster care for more than three years. 252. Texas judges who were interviewed for Texas Appleseed’s 2010 study almost uniformly expressed dissatisfaction with the resources and services available to help youth who age out of foster care, and most felt that PMC youth were ill-prepared for adulthood. 253. National studies have shown that children who age out of foster care are more prone to poverty, homelessness, drug abuse, early pregnancy, and mental health problems, and are likely to become involved with the criminal justice system. A 2005 study of youths who had aged out in several Midwestern states found that 54.4% had one or more mental health disorders; 65%
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experienced seven or more school changes; only 84.8% completed high school; only 1.8% completed a bachelor’s degree; 33.2% had household incomes below the poverty line; and 33% had no health insurance. 254. A 2001 study of former foster youths in Texas by the Center for Public Policy Priorities (“CPPP”) in Austin reported that 60% of the youth in its sample had a history of unemployment and financial instability after aging out, mostly due to lack of job skills. As a group, the former foster youths who comprised the sample had been incarcerated at a rate one-and-a-half times higher than the general population of 19 to 29 year olds in Texas. 255. In a 2010 five-part series, “Broken Children, Broken System,” News 8 Austin reported that one in four children who aged out of foster care in Texas has been homeless since turning eighteen, and one in four has been incarcerated. 256. A youth who was going to turn eighteen in six days reported to Texas Appleseed that she had no idea what she was going to do when she aged out and that her caseworker had not even met with her to tell her what would happen when she aged out of care. 257. In particular, older youths living in group homes or institutions have great difficulty finding mentors who can guide their transition from foster care into adulthood because most of them have lost critical connections to caring adults. 258. The fact that many Plaintiff Children leave the state’s custody only when they reach the age of majority is the direct result of a system in which an overburdened, revolving, and inexperienced workforce does not timely and adequately assess children’s needs, does not make timely quality visits with children, and fails to plan appropriately for children’s permanent placements in suitable family homes.
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C. The Harms Suffered By Plaintiff Children Result From Defendants’ Failure To Properly Manage The DFPS Foster Care System
259. As described above, Defendants do a poor job of moving Plaintiff Children out of foster care and into permanent homes. While Plaintiff Children languish in foster care for long periods, DFPS puts children in inadequately supported placements that have not been carefully selected to ensure that they will meet children’s individual needs. Without adequate support, these placements disrupt again and again, each time requiring a move and further dislocation to the already traumatized child. After such tumult, residential treatment, instead of being a limited and intensive remedy for a child’s mental and behavioral problems, becomes a long-term placement of last resort, from which children seldom emerge successfully to a family home in which they can adjust to normal life. Ultimately, many Plaintiff Children are never provided with a permanent home, but age out only when they reach majority, without the support of family, strong adult models, or even established friendships. 260. This spiral of harm results from Defendants’ failure to address structural and systemic problems in the Texas foster care system that they have known of for years. Among these structural and systemic problems are: (1) Defendants’ failure to maintain a child welfare workforce adequate to ensure the safety, permanency, and well-being of Plaintiff Children; (2) Defendants’ failure to focus resources on permanency planning to ensure that Plaintiff Children leave Defendants’ PMC to a permanent home; (3) Defendants’ failure to establish an array of placements and services that meet the needs of Plaintiff Children; and (4) Defendants’ failure to effectively oversee those who provide care to foster children, including Plaintiff Children.
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1. Defendants Mismanage The Texas Foster Care System By Failing To Maintain A Caseworker Staff Of Sufficient Size And Capacity To Perform The Tasks Critical To Plaintiff Children’s Safety, Permanency, And WellBeing
261. DFPS caseworkers are responsible for conducting critical tasks for Plaintiff Children, including (1) placing Plaintiff Children in the least restrictive placements that are safe and meet the children’s needs; (2) regularly visiting Plaintiff Children in their placements; (3) ensuring the development and implementation of case plans that identify the services needed by Plaintiff Children; (4) ensuring that Plaintiff Children receive needed services, particularly those relating to mental health; and (5) developing and implementing a permanency plan for each child, in order to ensure that Plaintiff Children leave foster care to permanent families wherever possible. 262. However, DFPS operates a system in which caseworkers are overburdened and inexperienced. This prevents them from having sufficiently frequent and adequate visitation with the children on their caseloads. Workers fail to engage in necessary work to ensure that Plaintiff Children are in safe and stable placements that meet their needs while in care. Additionally, those caseworkers fail to ensure that Plaintiff Children leave foster care to permanent homes. 263. Texas law requires that caseload standards and staffing assignments for DFPS caseworkers be consistent with “professional caseload standards.” DFPS has consistently failed to meet such professional standards. Texas Appleseed reported that in 2009, “[DFPS] caseworkers were routinely handling around 30 cases, even though the national standards call for between fifteen and seventeen cases per caseworker.” Further, the report found that caseworkers in the state’s larger urban areas were commonly assigned more than 40 cases, with a “case” frequently involving multiple children. 264. These high caseloads detract from caseworkers’ abilities to fulfill their responsibility to
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protect children. In a 2007 survey, for example, 63.9% of conservatorship caseworkers stated that they were not able to spend enough time with the foster children for whom they were responsible due to excessive caseloads. In 2008, 61.6% of caseworkers reported that they could not finish all of their work, even when working overtime. Most of the caseworkers interviewed (57.2%) admitted that they had too many cases to do a good job. 265. Moreover, although Defendants are obligated to ensure that Plaintiff Children’s service plans are effectively implemented, these high caseloads often lead to Defendants’ failure to ensure that children receive required services. 266. In addition, these high caseloads lead to turnover rates among DFPS caseworkers that Texas itself has deemed “excessive.” DFPS’s Statewide Placement Quality and Capacity Strategic Plan for FY 2010 to 2014 cited “unacceptably low pay, undesirable working conditions and excessive case loads” as causes of this turnover. As of August 2010, turnover at DFPS was such that about 30% of new caseworkers left within the first year. 267. This turnover rate means that it is not uncommon for a child to have four different DFPS caseworkers in a span of eighteen months. The DFPS caseworkers who do stay often must carry additional cases simply to cover the vacancies left by overwhelmed caseworkers leaving the system, which may lead to even more turnover as those remaining workers also burn-out and leave. 268. This turnover is reflected in a workforce that is largely of short tenure. In 2009, 47.3% of caseworkers had fewer than two years of experience. In 2010, 31.4% of caseworkers had less than one year of experience. 269. Studies show that caseworker turnover drives placement instability, disrupts services to children and foster parents, and significantly hurts children’s chances of finding permanent
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homes. Turnover also contributes to children’s difficulties in establishing trust and “make[s] it easy for the child’s needs to go overlooked.” This is especially problematic for children in the state’s PMC, for whom the prospect of family reunification is unlikely and whose caseworkers must have expertise and the time to devote to the intensive task of building new adult connections in order for the child to leave foster care to a permanent home. 270. In its 2003 PIP, DFPS itself acknowledged that “[e]xpertise for addressing specialized needs of children is under-developed, skill and knowledge for effectively engaging families in the case planning process is inadequate, and lack of a tenured workforce from which to select leadership remains a critical problem.” DFPS further acknowledged that turnover has led to “gaps in contact with children and families, gaps in services, or inadequate follow-up with services previously assessed as needed.” 271. In 2008, the Committee on Health and Human Services of the Texas State Senate declared: “[DFPS] continues to struggle with increasing caseloads in certain divisions and high caseworker turnover rates, both of which can increase the risk of harm to children involved in the child welfare system.” 272. In addition, DFPS fails to adequately train its caseworkers. A 2010 report of the Adoption Review Committee found that “recruitment, training, and mentoring of [DFPS] staff has often been inadequate and un-inspiring, contributing to the high burn-out/turnover rate” and noted that these areas “must be a priority” to retain better quality staff and ultimately to achieve better outcomes for children. 273. Despite Defendants’ long awareness of these problems, they continue now. An Adoption Review Committee report from December 2010 found that “caseworkers carry extremely high caseloads, often twice what is deemed best practice. This contributes to high turnover rates and
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reduces positive outcomes for children.” 274. Under all of these circumstances, the critical work of placement planning and protection that Defendants owe to Plaintiff Children simply does not get done. The Second Round CFSR found that DFPS failed to effectively individualize services for the children and families it serves. Stakeholders commented that “high caseworker turnover rates impede the ability of caseworkers to design and implement individualized service plans for families and children and to develop connections to key services available in the community.” Instead of ensuring that children’s individual needs are met, children’s difficult behaviors and emotional traumas are too often controlled with powerful psychotropic medications instead of with appropriate therapeutic services.
2. Defendants Mismanage The Texas Foster Care System By Failing To Focus Resources On Permanency Planning For Plaintiff Children, Causing Them To Languish In Foster Care Until They Age Out
275. As of 2009, the latest date for which such data is available, the federal government found that there were 12,844 children in Texas foster care waiting to be adopted. The majority of these children are in the PMC of the Department. This number has increased by more than 50% since 2002, when there were 8,474 waiting children. 276. In order to ensure that children leave foster care to a permanent home, a well-functioning child welfare system must engage in child-specific permanency planning and adoption recruitment. But Defendants have failed to develop and effectively deploy the services and resources required to achieve timely permanency for the large and growing number of Texas children who are waiting to be adopted. A 2010 report by Texas Appleseed found a “lack of urgency to find permanent homes” for children in the state’s PMC. 277. In Texas, the work of finding an adoptive family for a child in foster care is normally performed with the assistance of a specialized Adoption caseworker. However, Defendants have
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created a culture in which many waiting children are treated as “unadoptable.” DFPS fails to assign an Adoption caseworker or to provide adoption services to these children, although many would be easily adoptable if Defendants made efforts. 278. Children as young as six, seven, or eight years old are often presumed to be too old for adoption. Similarly, children who have previously been placed in congregate care often fail to receive adoption services. Defendants routinely create permanency plans that do not even include adoption as a goal for Plaintiff Children who need specialized mental health or medical services. This happens with even greater frequency to those Plaintiff Children with physical, emotional, or cognitive disabilities. 279. Only a small fraction of those Plaintiff Children who are freed for adoption are currently listed on Texas Adoption Resource Exchange (“TARE”), a state-run website which helps DFPS find adoptive homes for children. 280. A 2010 report by the Children’s Commission found that: “If a child has been in PMC [and has been free for adoption] for more than two years and is still not in an adoptive home, the adoption plan has failed and should be revisited.” 281. The problem of inadequate adoption planning has been long known to Defendants. The Second Round CFSR found that DFPS made diligent efforts to achieve adoptions in a timely manner in just 42% of the cases reviewed, well below the national requirement of 90%. Defendants acknowledged in their Statewide Assessment that high caseloads and staff turnover cause delays in preparing children for adoption and in the recruitment and selection of adoptive families. 282. In addition, Defendants have failed to ensure that caseworkers take steps to free Plaintiff Children for adoption. Federal law requires that states make efforts to free children for adoption
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who have been in custody for 15 of the last 22 months unless certain limited exceptions apply. Yet as of August 2010, there were 3,326 children in the state’s PMC who were not legally free for adoption. In FY 2009, 30% of children entering the state’s PMC who were not legally free for adoption were under the age of five. 283. For such children, little effort is given to identifying an alternative permanency plan or securing any permanent placement. Moreover, DFPS rarely revisits the possibility of reunification with parents or reconsiders whether to make efforts to free the child for adoption, even if it later becomes appropriate. The 2010 Appleseed report stated that “there is no sense of immediacy to revisit the permanency issue during the PMC phase.” 284. The Second Round CFSR found “Permanency goal for child” to be an Area Needing Improvement because in 27.5% of cases reviewed, DFPS had failed to establish an appropriate permanency goal for the child in a timely manner and/or had not met federal requirements with regard to freeing the child for adoption. 285. As the Adoption Review Committee found in 2010 that “many of the same problems identified in 1996 still exist in the current child welfare system in Texas. . . . Without strong and swift action, the number of waiting children will continue to increase.” As Texas Appleseed observed in its November 2010 report: “The assumption that some children, particularly older children, are not adoptable must be challenged.”
3. Defendants Mismanage The Texas Foster Care System By Failing To Create An Adequate Number And Array Of Placements And Services, Subjecting Plaintiff Children To Unstable And Inappropriately Restrictive Placements, Far From Family And Community
286. When Texas removes a child from home for his own safety and well-being, the state assumes the responsibility of securing a placement that meets the child’s needs. Defendants, for a long period of time and with knowledge of widespread systemic inadequacies, have failed to
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develop a full range of appropriate foster care placements to meet the reasonably anticipated needs of all children in DFPS custody. 287. In a September 2010 report to the legislature, DFPS acknowledged that “[f]inding appropriate placements for children who come into foster care remains difficult because the needs of the children do not always match the number, type, and location of the placement options available.” Additionally, many providers do not offer placements at different service levels; this too often results in placement moves for children when their needs change. 288. DFPS policy expressly states that it is preferable that all children – even those with highlevel needs – be placed in a foster family home. Yet, the existing number of foster homes within the DFPS foster care system is grossly inadequate. Because of this scarcity, children as young as seven, eight, or nine are frequently placed in congregate settings. In fact, there is a marked increase in the use of congregate placements for children in Texas beginning at those ages. 289. Defendants recognize that the Texas foster care system has an insufficient number of foster homes. In May 2010, responding to the fact that the number of children in foster care exceeded expectations by more than 1,000 children, Commissioner Heiligenstein said that Texas “should offer incentives for private child-placing agencies to recruit foster homes where they are most needed.” 290. When placements are scarce, children tend to be placed in the first available rather than the best placement. This has long been a problem in Texas. Interviews conducted as part of the First Round CFSR found that: “Stakeholders noted that because of the scarcity of placements, placement decisions tend to be driven by availability rather than by ‘appropriateness’ as determined through a matching process. Placements made on the basis of availability are likely to disrupt because they often are not appropriate for the child’s needs.”
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291. Again, the Second Round CFSR found a “lack of placement stability for children in foster care due primarily to insufficient placement resources.” 292. This problem persists. In testimony to the Texas House Human Services Committee on June 30, 2010, Commissioner Heiligenstein noted that the lack of community resources causes separation from siblings and family, lack of educational continuity, and a fractured social support system. 293. Defendants rely inappropriately on certain types of placements, especially congregate placements, because of the insufficient number of available family foster homes. Thus, for example, DFPS uses emergency shelters for temporary placements when a child’s placement disrupts or when no placement is available of the type and in the location needed by the child. The Second Round CFSR noted that this increased shelter use was caused by a “continuing shortage of placements.” Mental health hospitalizations are also sometimes extended beyond the time they are medically necessary because there are no available beds in appropriate placements. In other instances, a child may be discharged from a mental health hospitalization to the nontherapeutic environment of an emergency shelter. 294. The unavailability of suitable placements also results in children being placed in foster care far from their home communities. The Dallas Morning News reported that, in May 2010 legislative testimony, Commissioner Heiligenstein acknowledged that under the current system foster children are often placed halfway across the state. In 2010, the worst instance of this was Region 9 (Midland); in FY 2010, 86% of that region’s foster children were placed outside of their home counties and 62% were placed outside of the region. 295. This problem is particularly pronounced for Plaintiff Children. As of March 31, 2010, 3,050 children – nearly 26% of all children in the state’s PMC – had been placed not only
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outside of their home counties, but outside of their large multi-county DFPS regions. By contrast, just over 10% of those in the state’s TMC – 1,433 children – were placed out of region. 296. In a September 2010 report, DFPS acknowledged that, statewide, the percentage of children placed out of their home regions increases as their need for services increases. Thus, as of March 31, 2010, 25% of children requiring moderate services were placed out of region, but 42% of children requiring specialized services and fully 62% of children requiring intensive services were placed out of region. 297. In particular, when an assessment of child’s needs indicates that a more restrictive placement would be appropriate, many children are moved far from their home communities because such treatment centers are disproportionately concentrated in one area of the state: in and around Houston. As of August 31, 2010, Harris County had 23 of the 79 RTCs operating in the state. Including the neighboring counties of Brazoria, Fort Bend, and Galveston, there were a total of 34 RTCs in the Houston area. 298. As a result, in June 2010 legislative testimony, Commissioner Heiligenstein recognized that six out of ten children placed in Houston region RTCs were from other regions across the state. She described the state’s network of RTCs as a “scatter-gram” that unnecessarily complicates the lives of already troubled youth. 299. Because it is difficult for family members, court advocates, and even the children’s primary DFPS caseworkers to visit distant placements, the health and safety of many of these children are not monitored by anyone with whom the children have a trusting relationship. Rather than taking timely and meaningful action to build the appropriate placement array, Defendants send alternate workers, largely unfamiliar with the cases they are monitoring, to visit children in distant placements and maintain “courtesy supervision” of their cases.
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300. In addition to RTCs, other critical services are not uniformly available to foster children throughout the state. The Second Round CFSR found that “key resources such as substance abuse and mental health services are insufficient around the state, and there are areas where key services such as placement resources are unavailable or inconsistently available.” Stakeholders identified deficits in the availability of youth placements, transitional services, psychiatric care, and behavioral health care. They noted that “families in remote areas struggle with transportation and a lack of choice among providers for needed services, especially in the areas of substance abuse and behavioral health.” 301. When children are ready to leave RTCs, there are insufficient community-based services that would enable them to transition to a therapeutic foster home. As a result, children remain in congregate care longer than is appropriate to their needs because there is nowhere else for them to go. 302. When children are placed in family foster homes, the foster parents may not be adequately trained to meet the children’s needs. The December 2010 Adoption Review Committee report found that frequent, damaging moves are due in part to inadequate training of foster parents to address the traumas these children have endured. 303. Additionally, DFPS allows Plaintiff Children to be erroneously and inappropriately designated as needing higher levels of care than they actually require, which often leads to children being placed or remaining longer than is appropriate in restrictive institutional or other foster care settings. This is driven in part by the fact that providers are compensated at higher levels for providing placements for children designated as needing higher levels of care. 304. The lack of a sufficient placement array not only causes direct harm to children, but also places unreasonable stress on the foster care system as a whole. It is well documented that
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placement changes disrupt the provision of services, stress foster parents and lead to lower retention rates, take additional caseworker time, and create other administrative costs. 305. Defendants have failed to build a sufficient service array to meet the needs of Plaintiff Children. Although in 2002 Texas had a “Service Array” that met the requirements of the First Round CFSR, by the Second Round CFSR, Texas was found to be “not in substantial conformity” with this requirement. 306. To determine the state’s conformity with this systemic factor, three items were assessed in the Second Round CFSR. The first two items were whether the state had in place “an array of services that assess the strengths and needs of children and families and determine other service needs . . . and help children in foster and adoptive placements achieve permanency,” and whether those services were available in all parts of the state. Both of these items were rated as Areas Needing Improvement.
4. Defendants Mismanage The Texas Foster Care System By Failing To Adequately Oversee Substitute Care, Placing Plaintiff Children At Risk Of Harm
307. Children removed from their homes are placed either in licensed and paid foster care or in unlicensed and unreimbursed substitute care with relatives. Licensed foster care may be either administered directly by the state, or operated by private contractors under the state’s oversight. 308. Texas relies on private contractors to provide direct services and placements to the vast majority of its children in substitute care. As of March 31, 2010, 7,723 children in the state’s PMC – 83% of all PMC children who were not placed with relatives – were in placements administered or operated by private contractors. 309. Any foster care system that relies on private contractors must ensure that those contractors are keeping children safe and meeting their needs. It is critical that children in all placements receive regular visits by appropriately supervised state caseworkers who have the
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time and resources necessary to identify children’s needs and address them. It is also essential that such a system have rigorous contract-monitoring and licensing procedures, and that those functions be performed competently. 310. Coordination among these three oversight functions – assigned caseworkers, contract monitoring, and licensing – is necessary to ensure the safety and well-being of children. If any one of these functions is inadequate, or does not apply to the oversight of a particular placement type, children may be placed at risk. 311. A 2008 study conducted for DFPS by the University of Houston School of Social Work found that the supervision of front-line service provision and the monitoring and licensing functions were “not coordinated in a way or assessed as an entire system to assure that their separate functions work together to promote the permanency, safety and well-being of children in substitute care.”
a. Defendants Fail To Ensure That Caseworkers Conduct Frequent And Quality Visits With Plaintiff Children
312. In order to promote children’s safety, wellbeing, and permanency, caseworkers must routinely have quality visits with each child on their caseload, regardless of placement type. DFPS acknowledges as much, requiring that a foster child’s DFPS caseworker meet “face-toface . . . at least once a month” with the child, and that the majority of these visits occur in the child’s residence. 313. For children placed in unlicensed relative homes, these caseworker visits are the only oversight available to ensure that children are safe and that their needs are being met. 314. Defendants have long failed to ensure that caseworkers have visits with Plaintiff Children that are of sufficient frequency and quality. DFPS failed the caseworker-child visitation requirement in the First Round CFSR and again in the Second Round CFSR.
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315. It is widely acknowledged that DFPS caseworkers still frequently do not make these required monthly visits with the children on their caseloads. Even when these visits do occur, they are often cursory, sometimes lasting minutes. 316. In particular, caseworkers often fail to make required visits to Plaintiff Children who have been placed with CPAs, and instead monitor them only by communicating with CPA staff. As a result, some Plaintiff Children go long periods without a single in-person visit from their DFPS caseworker, even though the caseworker is supposed to visit them monthly and is the only person responsible for engaging in permanency planning for the child. 317. This problem is especially pronounced for Plaintiff Children who have been placed out of their home regions. In 2005, DFPS established a program under which Plaintiff Children who are placed out of their home regions are paid “courtesy” visits by DFPS “I See You” caseworkers rather than by their assigned caseworkers. Although DFPS requires these “I See You” caseworkers to access the child’s case file and conduct monthly visits with the child, the visits are often cursory and amount to nothing more than a wellness check to verify that DFPS has not lost the child. In practice, the “I See You” workers are generally unfamiliar with the child’s history and needs, and their visits do not ensure that Plaintiff Children are in appropriate placements and receiving needed services, that efforts are being made to implement their permanency goals, or that the children are truly safe. 318. The “[l]ack of collaboration between caseworkers and ‘I See You’ workers” was one of the reasons DFPS was rated poorly in ensuring children’s wellbeing in the Second Round CFSR. Significantly, the federal evaluators noted that to properly monitor the safety and well-being of foster children and to attain their permanency goals, caseworker visitation must be of sufficient “quality” as well as frequency.
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b. For Children In Private Care, DFPS’s Contract Management Arm Fails To Ensure That Children Are Safe From Harm
319. DFPS’s second line of defense to monitor the safety and well-being of children in private care is through contract management and oversight. Here, too, low staffing, high turnover, high caseloads, and loose standards impede the ability of DFPS to effectively monitor the performance of contractors providing residential child care to children in foster care, including Plaintiff Children. 320. The responsibilities of contract managers include verifying that foster care providers comply with both the standards and requirements of the child protective services division and those of CCL. These managers are tasked with overseeing a broad range of activities, from verifying that private providers are developing and implementing appropriate service plans for the children in their care to overseeing financial accountability. 321. As long ago as 1995, the United States Department of Health and Human Services’ Office of Inspector General issued a report finding that the predecessor agency to DFPS did “not have an overall system of controls” to ensure that contracting providers were meeting required standards or that state caseworkers were monitoring the status of the children in CPA foster homes. As a result, the report found, the agency had “no assurance that the quality of care being given to foster children placed by child placing agencies was adequate.” 322. In 2000, the Texas State Auditor’s Office, assisted by the federal office that had conducted the earlier review, again reported on Texas’s administration of foster care contracts. Once again, the State Auditor’s Office found that there was an “urgent need for improvements in contract monitoring.” The contract administration division suffered from high caseloads and high turnover, with five of nine positions, including the Director, vacant at the time of the audit. In addition, the Auditor recommended improvement of risk assessment tools used for contract
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monitoring, including consideration of the severity of licensing violations. 323. In April 2007, the State Auditor’s Office issued a third critical report, this time noting that the Residential Contracts Division was far smaller and handled vastly more contracts and contract dollars than other contract monitoring divisions in DFPS. Furthermore, the division still suffered from high turnover, resulting in vacancies and an inexperienced workforce, compounding the already high workload. These problems were exacerbated by poor training that was not targeted to the issues raised by management of this type of contract. 324. The 2007 State Auditor’s report also noted a weakness in the procedures used by Contract Management to measure whether providers were keeping children safe in care. In particular, the oversight procedure focused only on confirmed allegations of abuse and neglect, rather than accounting for all allegations. The report recommended that DFPS include a performance measure in the contract that would consider a provider’s total number of allegations and the full range of dispositions, to recognize the risk presented by a provider with a high number of allegations. DFPS disagreed that this should be a performance measure. The contract form in use in FY 2011 contains the same performance measure that the Auditor’s office criticized in 2007. 325. As of March 2011, there were a total of 28 staff, including supervisors, performing all residential child care contract management functions. Four contract managers were assigned to handle all contracts in Region 6, among which were half the state’s RTC contracts. 326. Accountability to contract management is insufficiently rigorous because DFPS’s contract for residential child care is not performance-based: the standards and goals established in the contract are not effectively tied to contract performance and payment. 327. Additionally, minimum standards set by DFPS for operation of residential child care
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place no numerical cap on the caseloads of either CPA caseworkers who manage services to
children in foster family placements and FGHs or of Professional Level Service Providers who
handle planning and delivery of services to children in GROs and RTCs. Instead, private
contractors are required only to “ensure manageable caseloads.” And, although DFPS has the
authority to set contract terms more stringent than those in the regulations, the Department does
not do so. This inexact standard leaves contract management unable to ensure that a provider’s
caseloads are, in fact, manageable enough to allow staff to meet the needs of children in care.
328. As recently as FY 2009, contract management continued to report certain “common
findings” of poor contractor performance identified during monitoring of residential child care
contracts, including:
a. “Failure to comply with Residential Child Care Minimum Standards”; b. “Failure by CPAs to document approval by the CPS worker for subsequent moves”; c. “Failure to provide therapy outside of school hours in order to minimize disruption to
school” d. “Failure to address the child’s permanency goal in the operation’s service or
treatment plan [for that child]”; e. “Failure to maintain and update the Education Portfolio for each school-age child in
care”; f. “Failure to document the operation’s efforts related to transition services and
Preparation for Adult Living (PAL)”; g. “Failure to incorporate the child’s Individual Education Plan (IEP) or Individual
Transition Plan (ITP) into the operation’s service or treatment plan [for that child]”; h. “Failure to obtain all and/or document all of the required Texas Health Steps Check
Ups”; i. “Failure to obtain and/or document that a child received a vision screening”; j. “Failure to follow up or document follow up recommended by health care providers
during Texas Health Steps Check Ups or other health care appointments”; and k. “When children are prescribed psychotropic medications, failure to provide
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documentation that a physician evaluated the need for continued treatment with the psychotropic medication(s) at a minimum of every three months.” 329. Each of these findings represents conduct of private providers that places Plaintiff Children at risk of harm, and which DFPS’s contract management oversight has been inadequate to prevent. 330. The case of the Daystar RTC, described in Paragraphs 218 to 223 above, is a tragic illustration of the failure of contract management to effectively manage a poorly performing provider. In June 2010, the Director of Residential Contracts notified Daystar that the investigations by CCL had raised “serious concerns” about the “safety and well-being” of children placed with Daystar. The action taken, however, was not to terminate the contract, suspend it, or even to remove from the facility all children under DFPS’s conservatorship – any of which actions would have been permissible under the contract – but only to “suspend[ ] all new placements of DFPS children” and install a Service Monitor at the facility.
c. For Children In Private Care, DFPS’s Licensing Arm Fails To Provide Adequate Oversight To Ensure Plaintiff Children’s Safety
331. DFPS, through CCL, its licensing unit, also fails to properly supervise the private entities with which DFPS contracts for the provision of foster care services. 332. CCL is tasked with regularly inspecting CPAs, foster homes, and congregate facilities, and also with investigating any allegations of abuse or neglect of children in foster care and of violations of any licensing standards. 333. In 2010 there were 119 CCL caseworkers statewide charged with overseeing all licensed placements. These workers conducted 10,473 inspections and 4,696 investigations. Following these more than 15,000 inspections and investigations, CCL issued fourteen corrective evaluations statewide and put two facilities under corrective probation. 334. CCL fails to adequately supervise licensed placements, leaving children at risk. In
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August 2010, the Texas State Auditor’s Office released an audit of five residential child care providers. That audit found that providers did not conduct background checks of staff and foster parents before staff started working and foster homes were opened. As to all five of the CPAs reviewed, the report concluded: “The provider may be placing children at risk by not waiting for individuals to clear the background checks prior to their starting work.” In two additional instances, the report also found that children might be placed at further risk by the providers’ failure to “wait[ ] for the individuals to clear the background checks . . . prior to approving their homes for the placement of children.” 335. In one of those instances, the provider had previously been cited in 2006 for allowing employees to start work before clearing initial background checks, yet the provider was again cited for that same violation in 2008. In another, auditors were unable to determine when foster parents had cleared initial background checks. 336. These deficiencies are not new. In fact, the four previous annual residential care provider audits from 2006 through 2009 found these same deficiencies in different providers. In some instances, background checks were hundreds of days late. For example, the 2009 audit found that initial background checks for employees ranged from 3 to 739 days late and subsequent employee background checks required after employees had worked for two years were from 3 to 2,381 days – six and one-half years – late. 337. In addition, these audits noted that CPAs failed to document that employees had gone through orientation and pre-service training, behavior intervention training, training on psychotropic medications, and annual in-service training; failed to document CPR and first aid certification; and failed to perform initial and subsequent background checks on subcontractors who had contact with children. The audits also noted staff turnover in one year of up to 143%.
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338. Even where background checks were conducted, a review by the Houston Chronicle and Texas Tribune found that DFPS approved dozens of potential workers, despite arrests ranging from prostitution to assault with a deadly weapon. For example, the Chronicle reported in December 2008 that CCL wrote to the Daystar RTC approving the hire of a job applicant who had been arrested for aggravated assault with a deadly weapon, concluding that “this person’s criminal history does not include a conviction that would prohibit the person from being present in a childcare operation.” 339. CCL routinely gives notice of its inspection visits to foster homes. In 2007, DFPS conducted a survey of foster parents, asking them to comment on monitoring inspections. Several expressed appreciation for the fact that DFPS made appointments to inspect, rather than visiting the foster homes unannounced. 340. CCL does not keep adequate records of direct care providers who have been determined to be unsatisfactory or even abusive. Individual foster homes that have been shut down by one CPA are able to obtain verification from another CPA, and to accept new placements from DFPS. 341. Defendants’ investigations of allegations of abuse and neglect are routinely inadequate and ineffective. CCL investigators frequently fail to obtain sufficient information from Plaintiff Children or to effectively gather and analyze other relevant information during the course of investigations. Moreover, Plaintiff Children are moved so frequently and to such distant placements that investigations of prior abuse and neglect in care are hampered and ineffective. 342. As a consequence of inadequate oversight, DFPS places children in inappropriate and sometimes dangerous privately operated homes and facilities, contrary to the exercise of reasonable professional judgment and with deliberate indifference to the potential danger to
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children, including Plaintiff Children. 343. In a case that was widely reported in October, 2010, the operator of a foster group home in Elkhart pleaded guilty to sexually abusing, over the course of thirteen years, as many as nine of the children who DFPS had placed in his care. CCL investigated his operation on at least three occasions, ruling out the allegations each time. DFPS continued to place children in the facility even as caseworkers removed those who had alleged abuse. It was only after the foster parent was eventually arrested that a CCL supervisor revisited the matter and issued a report noting “overwhelming evidence” of abuse. 344. The 2010 death of the child who was improperly restrained at the Daystar RTC is another particularly tragic example of what can happen when DFPS fails to take prompt and effective enforcement action against a private contractor. The numerous regulatory deficiencies documented at the facility in 2008 and 2009 (along with the “fight club” incident and the finding of sexual abuse described in Paragraphs 218 to 223 above) included at least one other improper use of an emergency restraint and a failure to properly document a staff worker’s training in the use of such restraints. Yet, the child’s death illustrates that whatever measures CCL may have taken to correct these violations and to ensure that they did not recur left Plaintiff Children at risk.
* * * 345. Defendants are charged with responsibility for the safety, well-being, and ultimately, the childhoods of Plaintiff Children, those children unfortunate enough to be in the Permanent Managing Conservatorship of the State of Texas. Instead of taking all reasonable steps to provide services and treatment for the traumas these children have already suffered and to seek and secure a permanent home for these children, Defendants instead inflict further trauma on
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these children by maintaining a child welfare system in which these children’s constitutional rights and the entitlements guaranteed by state law are routinely denied. As a direct result of Defendants’ actions and inactions, thousands of Texas children are subjected to permanent harm on an ongoing basis, in violation of their legal rights.
COUNT I (Substantive Due Process under the United States Constitution)
(Asserted by all Named Plaintiffs and Plaintiff Children) 346. Each of the foregoing allegations is incorporated as if fully set forth herein. 347. State officials assume an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from harm when they take that child into foster care custody. 348. The foregoing actions and inactions of Defendants Rick Perry, Thomas Suehs, and Anne Heiligenstein, in their official capacities, constitute a failure to meet their affirmative duty to protect from harm all Named Plaintiffs and Plaintiff Children, which is a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Named Plaintiffs and Plaintiff Children. 349. The forgoing actions and inactions of Defendants Rick Perry, Thomas Suehs, and Anne Heiligenstein, in their official capacities, constitute a policy, pattern, practice or custom that is inconsistent with the exercise of professional judgment and amounts to deliberate indifference to the constitutionally protected rights and liberty and privacy interests of all Named Plaintiffs and Plaintiff Children. As a result, all Named Plaintiffs and class members have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution. 350. These substantive due process rights include, but are not limited to:
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a. the right to protection from unnecessary harm while in government custody;
b. the right to a living environment that protects foster children’s physical, mental, and emotional safety and well-being;
c. the right to services necessary to prevent foster children from deteriorating or being harmed physically, psychologically, or otherwise while in government custody, including but not limited to the right to safe and secure foster care placements, appropriate monitoring and supervision, appropriate planning and services directed toward ensuring that the child can leave foster care and grow up in a permanent family, and adequate psychiatric and psychological services;
d. the right to treatment and care consistent with the purpose of the assumption of custody by DFPS;
e. the right not to be maintained in custody longer than is necessary to accomplish the purposes to be served by taking the child into custody;
f. the right to receive care, treatment, and services determined and provided through the exercise of accepted professional judgment; and
g. the right to be placed in the least restrictive placement according to a foster child’s needs.
COUNT II
(First, Ninth, and Fourteenth Amendments to the United States Constitution) (Asserted by all Named Plaintiffs and Plaintiff Children)
351. Each of the foregoing allegations is incorporated as if fully set forth herein.
352. The foregoing actions and inactions of Defendants Rick Perry, Thomas Suehs, and Anne
Heiligenstein, in their official capacities, amount to a policy, pattern, practice, or custom of
failure to exercise professional judgment and of deliberate indifference to Plaintiffs’
constitutional rights, and are the cause of the violation of such rights. As a result of Defendants’
conduct, all Named Plaintiffs and Plaintiff Children have been and are at further risk of being
harmed and deprived of the liberty interests, privacy interests, and associational rights not to be
deprived of a child-sibling or child-parent family relationship where safe and appropriate, as
conferred on them by the First, Ninth, and Fourteenth Amendments to the United States
Constitution.
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COUNT III
(Procedural Due Process) (Asserted by all Named Plaintiffs and Plaintiff Children)
353. Each of the foregoing allegations is incorporated as if fully set forth herein.
354. The actions and inactions of Defendants Rick Perry, Thomas Suehs, and Anne
Heiligenstein, in their official capacities, have resulted and are continuing to result in the
deprivation of the following state law entitlements to which each Plaintiff child has a
constitutionally protected interest:
a. The rights related to monitoring by DFPS of contracted substitute care, as provided under Texas Family Code Section 264.106(b) and Human Resources Code Section 45.002, including that DFPS ensure that such services are provided in accordance with federal law, the laws of the State of Texas, and the rules of the Department of State Health Services and the Texas Commission on Environmental Quality; and
b. The right to placement decisions made by DFPS using “clinical protocols to match a child to the most appropriate placement resource,” as provided under Texas Family Code Section 264.107(e).
PRAYER FOR RELIEF
355. WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action;
b. Order that Plaintiff Children 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:
i. Defendants’ violation of Plaintiff Children’s substantive right to be free from harm under the due process clause of the Fourteenth Amendment to the United States Constitution;
ii. Defendants’ violation of Plaintiff Children’s rights under the First, Ninth and Fourteenth Amendments to the United States Constitution; and
iii. Defendants’ violation of Plaintiff Children’s right to procedural due process under the Fourteenth Amendment to the United States Constitution on the basis of statecreated liberty and property interests.
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d. Enter a permanent injunction:
i. Requiring Defendants to ensure that all children in the plaintiff class are assigned DFPS workers whose overall caseloads do not exceed the caseload standards established by the Child Welfare League of America and the Council on Accreditation;
ii. Requiring Defendants to establish, within DFPS, an administrative accountability structure to ensure that all caseworkers, using professionally accepted case practices, fully identify and address Plaintiff Children’s need for:
1. timely permanency;
2. placement in the least restrictive, most family-like placements that are suited to their needs; and
3. mental health services suited to their needs;
iii. Requiring Defendants to create, within DFPS, special expert panels to review the cases of all class members who have had more than four placements during their most recent placement episode, to determine whether their service needs are being adequately addressed and, if not, to implement appropriate remedial steps to have those service needs addressed;
iv. Requiring Defendants to create, within DFPS, special expert panels to review the cases of all class members who have been in the PMC of the state for more than two years to determine whether their need for permanency is being adequately addressed and, if not, to implement appropriate remedial steps to seek and secure permanency for these children;
v. Requiring that all substitute care placements be licensed or verified according to state law;
vi. Requiring Defendants to establish a process for ensuring that state standards for foster homes, foster group homes, emergency shelters, group residential operations, and residential treatment centers in which Plaintiff Children are placed are consistent with the standards set by the Child Welfare League of America and the Council on Accreditation and, if they are not, for taking necessary steps to have the state’s standards modified;
vii. Prohibiting Defendants from placing Plaintiff Children in foster homes, foster group homes, emergency shelters, group residential operations, or residential treatment centers that do not meet the standards for such homes or facilities set by the Child Welfare League of America and the Council on Accreditation;
viii. Requiring Defendants to ensure that their practices and procedures for monitoring and oversight of privately operated placement facilities protect the safety of Plaintiff Children;
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ix. Prohibiting DFPS from placing any children in privately operated residential facilities or CPAs not accredited by the Council on Accreditation;
x. Requiring Defendants to retain experts to conduct an assessment of the placement and service needs of plaintiff class members, taking into account class members’ needs for placement in the least restrictive, most family-like setting and for placement in proximity to their families and communities, and establishing a timetable by which additional placements and services will be developed; and
xi. Requiring that all contracts with private providers contain caseload, services, treatment, and outcome standards consistent with state and federal law, and that DFPS establish a process to ensure that these private providers comply with the provisions of these contracts;
e. Appoint a Neutral Monitor to oversee the implementation of this order and to issue periodic reports to the Court.
f. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920, 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and
g. Grant such other and further equitable relief as the Court deems just, necessary, and proper to protect Plaintiff Children from further harm by Defendants.

DATED: March 29, 2011

Respectfully submitted:

/s/ J.A. “Tony” Canales J.A. “Tony” Canales State Bar No. 03737000 S.D. Tex. Bar No. 1163 Hector Canales State Bar No. 24005961 S.D. Tex. Bar 29396 Patricia C. Bell State Bar No. 00793455 S.D. Tex. Bar No. 19506 CANALES & SIMONSON, P.C. 2601 Morgan Avenue Corpus Christi, Texas 78467-5624 Phone: (361) 883-0601 Facsimile: (361) 884-7023 tonycanales@canalessimonson.com hacanales@canalessimonson.com pmcanales@canalessimonson.com Attorneys-in-Charge
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Barry F. McNeil State Bar No. 13829500 S.D. Tex. Bar No. 14914 R. Thaddeus Behrens State Bar No. 24029440 S.D. Tex. Bar No. 916015 Amelia J. Cardenas State Bar No. 24056681 S.D. Tex. pro hac applicant HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Phone: (214) 651-5000 Facsimile: (214) 200-0535 barry.mcneil@haynesboone.com thad.behrens@haynesboone.com Amelia.cardenas@haynesboone.com
R. Paul Yetter State Bar No. 22154200 S.D. Tex. Bar No. 3639 Dori K. Goldman State Bar No. 24041274 S.D. Tex. Bar No. 591632 Christopher D. Porter State Bar No. 24070437 S.D. Tex. Bar No. 1052367 YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 Facsimile: (713) 632-8002 pyetter@yettercoleman.com dgoldman@yettercoleman.com cporter@yettercoleman.com
Marcia Robinson Lowry (pro hac applicant) Stephen A. Dixon (pro hac applicant) Olivia Sohmer (pro hac applicant) Jessica Polansky (pro hac applicant) Patrick Almonrode (pro hac applicant) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015
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mlowry@childrensrights.org sdixon@childrensrights.org osohmer@childrensrights.org jpolansky@childrensrights.org palmonrode@childrensrights.org Of Counsel Attorneys for Plaintiffs and Proposed Class
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 Case: 11-40789 Document: 00511798331 Page: 1 Date Filed: 03/23/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

March 23, 2012

No. 11-40789

Lyle W. Cayce Clerk

M.D., by next friend Sarah R. Stukenberg; D.I., by next friend Nancy G. Pofahl; Z.H., by next friend Carla B. Morrison; S.A., by next friend Javier Solis; A.M., by next friend Jennifer Talley; J.S., by next friend Anna J. Ricker; K.E., by next friend John W. Cliff, Jr.; D.P., by next friend Karen J. Langsley; T.C., by next friend Paul Swacina,

Plaintiffs-Appellees v.

RICK PERRY, in his official capacity as Governor of the State of Texas; THOMAS SUEHS, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; HOWARD BALDWIN, in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,

Defendants-Appellants

Appeal from the United States District Court for the Southern District of Texas
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges. EMILIO M. GARZA, Circuit Judge:
Plaintiffs-Appellees, nine children (“Named Plaintiffs”) in the custody of Texas’s Permanent Managing Conservatorship (“PMC”), acting through their next friends, filed suit under 42 U.S.C. § 1983 against three Texas officials, in their official capacities, seeking to represent a class of all children who are now and all those who will be in the State’s PMC, i.e., long-term foster care. The

Case: 11-40789 Document: 00511798331 Page: 2 Date Filed: 03/23/2012
No. 11-40789 Named Plaintiffs sought declaratory and injunctive relief to redress alleged class-wide injuries caused by systemic deficiencies in Texas’s administration of the PMC. The district court granted class certification. We VACATE the district court’s class certification order for failure to comply with Federal Rule of Civil Procedure 23 and REMAND for further proceedings consistent with this opinion.
I A The Named Plaintiffs filed suit against (1) Governor Rick Perry, in his official capacity, (2) Thomas Suehs, in his official capacity as Executive Commissioner of the Texas Health and Human Services Commission, and (3) Thomas Baldwin, in his official capacity as Commissioner of the Texas Department of Family and Protective Services (“DFPS”) (collectively, “Texas”). The complaint asserts claims for relief under 42 U.S.C. § 1983, alleging that Texas has violated the constitutional rights of each of the approximately 12,000 children in its PMC due to various “systemic failures” in the “unitary system” that administers the State’s PMC. The gravamen of the Named Plaintiffs’ complaint is that various systemwide problems in Texas’s administration of its PMC—such as a failure “to maintain a caseworker staff of sufficient size and capacity to perform the tasks critical to [the] safety, permanency, and well-being” of the purported class members—subject all of the children in the PMC to a variety of harms. Based on these allegations, the Named Plaintiffs claim that the “actions and inactions of [Texas]” violated the purported class members’ (1) substantive due process rights to be free from harm while in state custody under the Fourteenth Amendment, (2) liberty interests, privacy interests, and associational rights not to be deprived of a child-sibling or child-parent family relationship where safe and appropriate, under the First, Ninth, and Fourteenth Amendments, and (3) procedural due process rights under the Fourteenth Amendment by depriving
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Case: 11-40789 Document: 00511798331 Page: 3 Date Filed: 03/23/2012
No. 11-40789 them of alleged state law entitlements, relating to monitoring by DFPS of contracted substitute care, TEX. FAM. CODE § 264.106(b); TEX. HUM. RES. CODE § 45.002(c), and the right to have placement decisions be made using “clinical protocols to match a child to the most appropriate placement resource.” TEX. FAM. CODE § 264.107(e). The Named Plaintiffs request broad, classwide declaratory and injunctive relief against Texas to redress the harms caused by the State’s alleged systemic failures to properly manage the PMC.
Pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), the Named Plaintiffs moved the district court to certify a class of “all children who are now and all those who will be in the [PMC] of Texas’s [DFPS].” Texas opposed class certification, contending that the proposed class did not meet the requirements of Rule 23. The district court granted the Named Plaintiffs’ motion for class certification. This court subsequently granted Texas’s petition for permission to appeal. See FED. R. CIV. P. 23(f).
“We review the district court’s decision to certify a class for an abuse of discretion.” Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 301 (5th Cir. 2003) (citing McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 548 (5th Cir. 2003)). “Implicit in this deferential standard is a recognition of the essentially factual basis of the certification inquiry and of the district court’s inherent power to manage and control pending litigation.” Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 523 (5th Cir. 2007) (quoting In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004)). However, the district court must exercise its “broad discretion” over whether to certify a class “within the framework of Rule 23.” McManus, 320 F.3d at 548 (citation omitted). “We review de novo whether the district court applied the correct legal standards.” Maldonado, 493 F.3d at 523 (citation omitted).
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Case: 11-40789 Document: 00511798331 Page: 4 Date Filed: 03/23/2012
No. 11-40789 B
Texas administers its foster care system through the combined efforts of state agency officials and state courts. After investigating a report that a child has been abused or neglected, DFPS can seek to remove a child from his parents and/or establish Temporary Managing Conservatorship (“TMC”) over the child, usually by court order in a suit affecting the parent-child relationship (“SAPCR”). TEX. FAM. CODE § 262.201. If the court orders that DFPS retain TMC over a child, Texas Family Code § 263.401(a) generally requires that the SAPCR must be dismissed within one year of the court’s order placing the child in the State’s TMC, “[u]nless the court has rendered a final order or granted an extension.” While a child remains in the State’s TMC, DFPS is required to file a service plan and a permanency plan with the court (1) describing the steps needed to provide a permanent safe placement for the child and (2) reporting progress toward that end. Id. §§ 263.101–.102; id. §§ 263.3025–.303. Before the statutory deadline for dismissing a SAPCR, the court must hold a final hearing where it may terminate parental rights, place the child in DFPS’s PMC, grant a relative PMC without terminating parental rights, or return the child to the parents. Id. §§ 161.001, 263.404.
After a child enters DFPS’s PMC, the agency and state courts continue to jointly administer and monitor the state’s conservatorship over the child. DFPS is charged with providing the child with substitute care, including residential care and supportive and therapeutic services. 40 TEX. ADMIN. CODE §§ 700.1301–.1302. State law also directs DFPS to engage in permanency planning for children in its PMC in order to meet the child’s safety, permanency, and wellbeing needs. Id. § 700.1201; TEX. GOV’T CODE §§ 531.151–.152. While the child remains in DFPS’s PMC, state courts must hold periodic placement review hearings to consider, inter alia, whether the child’s current placement is necessary, safe, and appropriate, whether DFPS has been diligent in attempting
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No. 11-40789
to place the child for adoption if eligible, whether efforts have been made to place the child in the least restrictive environment if the child has been placed in institutional care, and, whether DFPS has made reasonable efforts to finalize the effective permanency plan for the child. TEX. FAM. CODE §§ 263.502–.503.1
The Named Plaintiffs have all been placed in Texas’s PMC and seek certification of a class of all children who are or will be in the State’s PMC.
II A “To obtain class certification, parties must satisfy Rule 23(a)’s four threshold requirements, as well as the requirements of Rule 23(b)(1), (2), or (3).” Maldonado, 493 F.3d at 523 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613–14 (1997)). The Named Plaintiffs, as the parties seeking certification, bear the burden of proof to establish that the proposed class satisfies the requirements of Rule 23. McManus, 320 F.3d at 548 (citation omitted); see Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”). The requirements of Rule 23(a) are: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
1 The State has charged DFPS with redesigning its foster-care system in accordance with the recommendations contained in the Foster Care Design Report. The Report recommends a host of wide-ranging reforms to the State’s foster care system. Act of May 25, 2011, 82d Leg. R.S., ch. 598, § 11, 2011 Tex. Sess. Law Serv. 1445.
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Case: 11-40789 Document: 00511798331 Page: 6 Date Filed: 03/23/2012
No. 11-40789 The Named Plaintiffs only sought certification under Rule 23(b)(2). Thus, assuming the proposed class satisfied the requirements of Rule 23(a), it also had to establish that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” FED. R. CIV. P. 23(b)(2).
It is well-established that “[a] district court must conduct a rigorous analysis of the [R]ule 23 prerequisites before certifying a class.” Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)). We have traditionally construed this directive to require district courts to, inter alia, “look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.’” McManus, 320 F.3d at 548 (quoting Castano, 84 F.3d at 744). In its recent opinion in Wal-Mart Stores, Inc. v. Dukes, which was decided after the district court granted certification in this case, the Supreme Court has further defined the contours of the “rigorous analysis” required by Rules 23(a) and 23(b)(2). 131 S. Ct. at 2551–52. We will consider whether the district court complied with the requirements of Rule 23 in light of the Supreme Court’s instructions in Wal-Mart.
B On appeal, Texas makes three primary arguments. First, it contends that the district court abused its discretion by certifying the purported class because the Named Plaintiffs failed to establish that there were any “questions of law or fact common to the class.” FED. R. CIV. P. 23(a)(2). In order to satisfy commonality under Wal-Mart, a proposed class must prove that the claims of every class member “depend upon a common contention . . . . that is capable of classwide resolution,” meaning that the contention is “of such a nature . . . that determination of its truth or falsity will resolve an issue that is central to the
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No. 11-40789 validity of each one of the claims in one stroke.” 131 S. Ct. at 2551. The State asserts that none of the class claims satisfy this standard. Instead, it maintains that each of the class member’s claims require individualized determinations of various issues of law and fact. Similarly, Texas asserts that the proposed class does not satisfy Rule 23(a)’s typicality requirement because the alleged harms suffered by the Named Plaintiffs are not experienced by a majority of the purported class and because the class claims require individualized inquiries.
Second, Texas maintains that the district court failed to conduct the “rigorous analysis” required by Rule 23. In particular, the State asserts that the district court “failed to define with any specificity the class claims, class issues, or defenses, nor . . . describe how those claims would be tried on behalf of over 12,000 PMC children.” It further contends that the district court failed to consider whether the class claims depend upon a common contention of law or fact whose determination would “resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.
Lastly, Texas contends that the proposed class does not satisfy the cohesiveness requirement of Rule 23(b)(2). The State asserts that the class is not entitled to classwide injunctive relief under Rule 23(b)(2) because (1) the class members have not “been harmed in essentially the same way,” Maldonado, 493 F.3d at 524, and (2) “a single injunction or declaratory judgment” could not “provide relief to each member of the class.” Wal-Mart, 131 S. Ct. at 2557.
C Applying the standards announced in Wal-Mart for establishing commonality under Rule 23(a)(2), we hold that the district court failed to conduct the “rigorous analysis” required by Rule 23 in deciding to certify the proposed class. Similarly, we hold that the district court abused its discretion by certifying a class that lacked cohesiveness under Rule 23(b)(2). We will first consider the district court’s decision finding that the proposed class satisfied
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No. 11-40789 commonality under Rule 23(a)(2) and then consider its finding that a single injunction could provide relief to the whole class under Rule 23(b)(2).
1 a The district court found that the proposed class raised common questions of fact and law, thereby satisfying Rule 23(a)(2)’s commonality requirement. First, it found that the class claims raised factual questions that “relate not to the individual story of each child, but rather the alleged shortcomings of the DFPS system.” M.D. v. Perry, No. C-11-84, 2011 WL 2173673, at *5 (S.D. Tex. June 2, 2011). Although the district court acknowledged that each class member experienced the alleged shortcomings in the State’s administration of its PMC in a different way, it found that the class satisfied commonality because “[a]ll class members are within the same system and subject to the alleged deficiencies in that system.” Id. The district court held that “[t]o require more for the ‘common question’ analysis would run afoul of the Fifth Circuit’s dictate that ‘[t]he test for commonality is not demanding,’ and that merely having ‘different claims, or claims that may require some individualized analysis, is not fatal to commonality.’” Id. (quoting James v. City of Dallas, 254 F.3d 551, 570 (5th Cir. 2001)). Accordingly, the district court found that the class claims raised the following common questions of fact: (1) whether Defendants failed to maintain a caseworker staff of sufficient size and capacity to perform properly, (2) whether Defendants failed to provide sufficient numbers and types of foster care placements necessary to the Plaintiffs’ needs, (3) whether Defendants provided sufficient monitoring and oversight to prevent abuse while in state custody, and (4) whether Defendants’ actions in general caused harm or risk of harm to Plaintiffs.
Id.
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No. 11-40789
Further, the district court found that the proposed class claims raised common questions of law. The district court rejected Texas’s contention that the Named Plaintiffs had only succeeded in attempting to “broadly conflate a variety of claims to establish commonality via an allegation of systemic failures.” Id. at *8 (citation omitted). Holding that it was persuaded by the reasoning of three of our sister circuits, which found that the claims of similar classes of children in or at risk of being in state custody satisfied commonality,2 the district court concluded that “insofar as the children challenge the scheme for the provision of child welfare services, their claims share a legal basis.” Id. (quoting Baby Neal, 43 F.3d at 61).
Without examining any of the Named Plaintiffs’ legal claims with any specificity, the district court then found that the proposed class claims contained “common questions of law, based upon Plaintiffs’ claims of constitutional violations, namely substantive and procedural due process, along with associational rights.” Id.
b Although the district court’s analysis may have been a reasonable application of pre-Wal-Mart precedent, the Wal-Mart decision has heightened the standards for establishing commonality under Rule 23(a)(2), rendering the district court’s analysis insufficient. In finding that the proposed class satisfied Rule 23(a)(2)’s commonality requirement, the district court relied, in large part, on this circuit’s pre-Wal-
2 DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188 (10th Cir. 2010); Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) (per curiam); Baby Neal for and by Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994); but see J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999) (affirming district court’s order denying certification of similar class of developmentally disabled children in the custody of or at risk of being in the custody of New Mexico) (“We refuse to read an allegation of systematic failures as a moniker for meeting the class action requirements. Rule 23(a) requires a common question of law or fact. For a common question of law to exist, the putative class must share a discrete legal question of some kind.”).
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No. 11-40789 Mart case law finding that “[t]he test for commonality is not demanding.” James, 254 F.3d at 570 (quoting Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999)). Before Wal-Mart, the rule in this circuit provided that in order to satisfy commonality “[t]he interests and claims of the various plaintiffs need not be identical. Rather, the commonality test is met when there is ‘at least one issue whose resolution will affect all or a significant number of the putative class members.’” Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1106 (5th Cir. 1993) (emphasis added) (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)). Further, the court’s pre-Wal-Mart caselaw held that “[t]he fact that some of the Plaintiffs may have different claims, or claims that may require some individualized analysis, is not fatal to commonality.” James, 254 F.3d at 570.
However, in Wal-Mart, the Court expounded on the meaning of its precedent providing that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 161). After Wal-Mart, Rule 23(a)(2)’s commonality requirement demands more than the presentation of questions that are common to the class because “‘any competently crafted class complaint literally raises common questions.’” Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 131–32 (2009)). Further, the members of a proposed class do not establish that “their claims can productively be litigated at once,” merely by alleging a violation of the same legal provision by the same defendant. Id. (“[T]he mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once.”).
Instead, the Court held that the claims of every class member must “depend upon a common contention . . . . of such a nature that it is capable of
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No. 11-40789 classwide resolution—which means the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.; see id. (“‘What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceedings to generate common answers apt to drive the resolution of the litigation.’”) (quoting Nagareda, 84 N.Y.U. L. REV. at 132). Thus, the commonality test is no longer met when the proposed class merely establishes that “there is ‘at least one issue whose resolution will affect all or a significant number of the putative class members.’” Forbush, 994 F.2d at 1106 (emphasis added) (citation omitted). Rather, Rule 23(a)(2) requires that all of the class member’s claims depend on a common issue of law or fact whose resolution “will resolve an issue that is central to the validity of each one of the [class member’s] claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551 (emphasis added).
The Court further clarified that a trial court’s obligation to perform a “rigorous analysis” before concluding that a class has satisfied the requirements of Rule 23(a) “[f]requently . . . will entail some overlap with the merits of the plaintiff’s underlying claim.” Id.; see Falcon, 457 U.S. at 160 (“[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action. . . . [S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.”) (internal citation and quotation marks omitted).
Lastly, after the Court concluded that “proof of commonality necessarily overlap[ped] with the [purported class members’] merits contention that WalMart engaged in a pattern or practice of discrimination,” the Court probed beyond the plaintiffs’ pleadings in an effort to decide if an “examination of all the class member’s claims for relief will produce a common answer to the crucial [merits] question why was I disfavored.” Wal-Mart, 131 S. Ct. at 2552. In doing
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No. 11-40789 so, the Court “focus[ed]” on dissimilarities among the proposed class members “in order to determine whether there is even a single common question.” Id. at 2556 (internal citation and quotation marks omitted); see id. at 2551 (“Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”) (quoting Nagareda, 84 N.Y.U. L. REV. at 132).
c Given the foregoing directives in the Court’s opinion in Wal-Mart, the district court’s Rule 23(a)(2) analysis was deficient in several respects. First, in finding that the proposed class claims raised common questions of fact, the district court failed to consider or explain how the determination of those questions would “resolve an issue that is central to the validity of each one of the [individual class member’s] claims in one stroke.” Id. at 2551. Rather, the district court merely found that the Named Plaintiffs’ various allegations of “systemic deficiencies” in the State’s administration of its PMC raised common questions of fact. For instance, the district court found that the class claims raised a common question of fact regarding “whether Defendants failed to maintain a caseworker staff of sufficient size and capacity to perform properly.” But the district court’s discussion of this “common question” contained no reference to any of the three causes of action advanced on behalf of the proposed class, nor did the district court “look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination’” of whether this question satisfies commonality. McManus, 320 F.3d at 548 (quoting Castano, 84 F.3d at 744). In short, the district court failed to describe how a finding that Texas fails to maintain a caseworker staff that performs “properly” will resolve an issue that is “central to the validity of each one of the [class member’s] claims in one stroke.” Wal-
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No. 11-40789
Mart, 131 S. Ct. at 2551. That is, the district court did not indicate how the resolution of the alleged common question of fact would decide an issue that is central to the substantive due process claims, family association claims, or procedural due process claims of every class member at the same time.3 Because the remaining common questions of fact found by the district court similarly fail to explain how their resolution would have the capacity to “generate common answers apt to drive the resolution of the litigation,” they suffer from the same deficiency. Id. (citation omitted); see Vizena v. Union Pac. R.R. Co., 360 F.3d 496, 503 (5th Cir. 2004) (per curiam) (“[W]e hold that when certifying a class a district court must detail with sufficient specificity how the plaintiff has met the requirements of Rule 23.”).
The district court’s analysis supporting its finding that the class claims presented common questions of law also failed to comport with the requirements of Rule 23 as outlined in Wal-Mart. Based on the reasoning of other courts in similar cases, the district court concluded that the claims of the proposed class members share a common legal basis because they “challenge the scheme for the provision of child welfare services” and “share the common legal claim that [DFPS’s] systematic deficiencies result in widespread violations of their statutory and constitutional rights.” M.D., 2011 WL 2173673, at *8 (citations omitted). The district court then found “common questions of law, based upon Plaintiffs’ claims of constitutional violations, namely substantive and procedural due process, along with associational rights.” Id. But the district court’s
3 For instance, it is unclear whether the Named Plaintiffs can even advance a due process claim based on a bare finding that Texas has “organized or managed” DFPS improperly. See Lewis v. Casey, 518 U.S. 343, 349–50 (1996) (“It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution. . . . But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly.”).
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No. 11-40789 analysis supporting its finding that the class claims raised common questions of law did not comply with the requirements of Rule 23(a)(2) for several reasons.
First, the formulation of these common questions of law is too general to allow for effective appellate review. The Named Plaintiffs allege that Texas’s management of its PMC suffers from numerous “systemic deficiencies” that subject all children in the PMC to various harms or to the risk of experiencing those harms. They further contend that these harms violate the constitutional rights of every child in the PMC in various ways. Faced with the broad scope of the Named Plaintiffs’ 85-page complaint and the diverse array of claims asserted therein, the district court’s certification of “common questions of law, based upon Plaintiffs’ claims of constitutional violations, namely substantive and procedural due process, along with associational rights” lacks the specificity required for us to determine whether the alleged common questions of law satisfy the requirements of Rule 23(a)(2). Some of the Plaintiffs’ legal claims may depend on common contentions of law capable of classwide resolution, and some may not. But as it stands, we cannot affirmatively identify the scope of the “common questions of law” found by the district court, let alone determine whether they are capable of classwide resolution under Wal-Mart. See Vizena, 360 F.3d at 503 (remanding from appeal of order granting class certification for the district court to make appropriate findings).
Moreover, given the substance of the proposed class claims, the district court failed to perform the “rigorous analysis” required by Rule 23 in failing to “look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination’” of whether the alleged questions of law are capable of classwide resolution. McManus, 320 F.3d at 548 (quoting Castano, 84 F.3d at 744). Specifically, the district court conducted no analysis of the elements and defenses for establishing any of the proposed class claims, nor did it adequately explain how those claims
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No. 11-40789 depend on a common legal contention whose resolution “would resolve an issue that is central to the validity of each of [the individual ’s] claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551.
The district court clearly rejected Texas’s argument that the resolution of the class claims depends on individualized factual determinations regarding the circumstances of each class member. Relying on the conclusions of other courts that have certified similar classes, the district court found that the class members’ individual issues did not preclude commonality because the class members “share the common legal claim that [a state agency’s] systemic deficiencies result in widespread violations of their statutory and constitutional rights.” Perry, 2011 WL 2173673, at *8 (citing Baby Neal, 43 F.3d at 61). However, we conclude that the district court insufficiently analyzed whether the class claims contain individualized issues that prevent certification.
Here, as in Wal-Mart, proof of commonality necessarily overlaps with the proposed class’s merits contention that systemic deficiencies in Texas’s administration of its PMC violate the constitutional rights of every child in the PMC. In such cases, Wal-Mart requires district courts to specifically delineate how a class proceeding would allow the court to resolve a discrete question of law whose determination “will resolve an issue that is central to the validity of each of the [individual plaintiff’s] claims in one stroke.” 131 S. Ct. at 2551. Further, the district court must explain its reasoning with specific reference to the “claims, defenses, relevant facts, and applicable substantive law” raised by the class claims, McManus, 320 F.3d at 548 (citation omitted), in order to ensure that “dissimilarities within the proposed class” do not “‘have the potential to impede the generation of common answers.’” Wal Mart, 131 S. Ct. at 2551 (citation omitted).
The district court failed to meet these requirements by declining to analyze Texas’s argument that dissimilarities within the proposed class
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No. 11-40789 precluded commonality with specific reference to the elements or defenses for establishing the class claims. For instance, Texas contends that the individual class member’s substantive due process claims are not capable of classwide resolution because deciding each plaintiff’s claim requires an individualized inquiry regarding whether the State’s conduct “shocks the conscience.” Texas’s Brief at 41–47 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)) (“[T]he substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’”) (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992)). If the State’s assertion is accurate that the resolution of each of the class member’s substantive due process claims requires individual analysis,4 then it is not clear how a “classwide proceeding” on those claims has the “capacity . . . to generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 131 S. Ct. at 2551 (citation omitted). In other words, if the merits of each class member’s substantive due process claims depend on an individualized inquiry regarding the harm or risk of harm experienced by each class member from the State’s practices, then “dissimilarities within the proposed class” would appear to prevent the class claims from asserting a common question of law that “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. (citation omitted). The district court may have properly rejected this argument, but, on remand, it must do so with reference to the elements and defenses and requisite proof for each of the
4 We take no position at this time regarding whether the proper standard to evaluate the proposed class’s substantive due process claims requires the State to act with “deliberate indifference” that “shocks the conscience, see Nicini v. Morra, 212 F.3d 798, 810 (3d Cir. 2000) (en banc), or that the State’s conduct was “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.” Id. at 811 n.9 (quoting Youngberg v. Romeo, 457 U.S. 307, 323 (1982)).
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No. 11-40789 proposed class claims in order to ensure that differences among the class members do not preclude commonality.
Lastly, we note that in the district court’s order denying Texas’s motion to stay proceedings in the lower court pending the resolution of this interlocutory appeal, it found Wal-Mart distinguishable from this case. Specifically it found that the proposed class satisfied commonality because (1) the class alleged injuries caused by common deficiencies in the Texas foster care system and (2) the alleged deficiencies were the “glue” holding the class claims together. M.D. v. Perry, No. C-11-84, 2011 WL 7047039, at *1 (S.D. Tex. July 21, 2011) (order denying motion to stay proceedings) (citing Wal-Mart, 131 S. Ct. at 2551). On remand, the district court’s conclusion may ultimately be a sound application of Wal-Mart, however, that conclusion must be supported by reasoning based on the elements for establishing the proposed class’s various constitutional claims on a classwide basis. See Wal-Mart, 131 S. Ct. at 2553 (discussing methods for bridging gap between individual Title VII claim and the existence of a class of individuals who have suffered the same injury such that their individual claims could be certified under Rule 23(a)); Jamie S. v. Milwaukee Pub. Schools, 668 F.3d 481, 497–98 (7th Cir. 2012) (discussing standards for determining whether individual claims under the Individuals with Disabilities Education Act (“IDEA”) can be brought together in a class action); Lightfoot v. District of Columbia, 273 F.R.D. 314, 326 (D.D.C. 2011) (discussing standards for certifying a class based on a municipal policy that allegedly violated the class’s procedural due process rights).
Further, in performing that analysis the district court should consider that the test for commonality “is complicated where, as here, the proffered ‘common issue’ is a somewhat amorphous claim of systemic or widespread misconduct on the part of the defendant.” Lightfoot, 273 F.R.D. at 324. We agree that “[m]ere allegations of systemic violations of the law . . . will not automatically satisfy
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No. 11-40789 Rule 23(a)’s commonality requirement.” DG, 594 F.3d at 1195 (citing J.B., 186 F.3d at 1288); see also Reinholdson v. Minnesota, No. 02 Civ. 795, 2002 WL 31026580, at *8 (D. Minn. Sept. 9, 2002) (“The reciting of the word ‘systemic’ in mantra-like fashion . . . does not overcome the prerequisites to class certification.”), vacated in part on other grounds, 346 F.3d 847 (8th Cir. 2003). Here, the proposed class’s proffered common issues “stretch[] the notions of commonality” by attempting to aggregate several amorphous claims of systemic or widespread conduct into one “super-claim.” See Marisol A., 126 F.3d at 377 (finding that the purported class had stretched the notion of commonality by aggregating all of the class claims into one “super-claim”); Lightfoot, 273 F.R.D. at 326 (“[L]urking behind the rather vague and conclusory statement that Defendants had a ‘policy and practice of failing to provide members of the Plaintiff class Due Process,’ lies a wide variety of more discrete and particularized practices that could conceivably serve as the foundation for municipal liability.”) (internal citation omitted).
Accordingly, given the “amorphousness” of the proposed class’s proffered common issues of fact and law, the district court should be particularly precise when explaining how the resolution of those claims “will resolve an issue that is central to the validity of each of the [individual class member’s claims] in one stroke.” Wal-Mart, 131 S. Ct. at 2551. The district court’s present certification order failed to do so; thus, we conclude that it failed to perform the “rigorous analysis” that is required in order to find that the proposed class satisfied Rule 23(a)(2)’s commonality requirement.5
5 As in Wal-Mart, “[i]n light of our disposition of the commonality question . . . it is unnecessary to resolve whether [the proposed class] ha[s] satisfied the typicality requirements of Rule 23(a).” 131 S. Ct. at 2551 n.5.
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No. 11-40789 2 a
We further hold that the district court abused its discretion by finding that the proposed class could be certified under Rule 23(b)(2).
Rule 23(b)(2) allows a class action to be maintained when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” We have interpreted this language to create two relevant requirements when a proposed class seeks classwide injunctive relief: (1) the “class members must have been harmed in essentially the same way.” Maldonado, 493 F.3d at 524 (citing Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 (5th Cir. 2000)), and (2) “the injunctive relief sought must be specific.” Id. (citing FED. R. CIV. P. 65(d)); see Casa Orlando Apartments, Ltd. v. Fed. Nat’l Mortg. Ass’n , 624 F. 3d 185, 198 (5th Cir. 2010) (“[T]his rule seeks to redress what are really group as opposed to individual injuries. The uniformity of the injury across the class is what renders the notice and opt-out provisions of (b)(3) unnecessary.”) (internal quotation marks and citation omitted).
In Wal-Mart, the Supreme Court further expounded on the requirements of Rule 23(b)(2), determining that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” 131 S. Ct. at 2557; see id. (“The key to the (b)(2) class is ‘the individual nature of the injunctive or declaratory remedy warranted the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’”) (quoting Nagareda, 84
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No. 11-40789 N.Y.U. L. REV. at 132). For a class certified under Rule 23(b)(2), “the relief sought must perforce affect the entire class at once.” Id. at 2558.
The proposed class seeks at least twelve broad, classwide injunctions, which would require the district court to institute and oversee a complete overhaul of Texas’s foster care system. For instance, the Named Plaintiffs sought the following injunctive relief:
i. Requiring Defendants to ensure that all children in the plaintiff class are assigned DFPS workers whose overall caseloads do not exceed the caseload standards established by the Child Welfare League of America and the Council on Accreditation;
ii. Requiring Defendants to establish, within DFPS, an administrative accountability structure to ensure that all caseworkers, using professionally accepted case practices, fully identify and address Plaintiff Children’s need for [] timely permanency; [] placement in the least restrictive, most family-like placements that are suited to their needs; and [] mental health services suited to their needs.
Relying on the Baby Neal line of cases, the district court found that the proposed class complied with Rule 23(b)(2) because the relief sought by the Named Plaintiffs would benefit the entire class. The district court reasoned that because the proposed class alleged that “systemic deficiencies” in the State’s PMC violated the constitutional rights of every child in the system,“all of the class members will benefit from relief which forces the defendant to provide, in the manner required by law, the services to which class members either are currently or at some future point will become entitled.” M.D., 2011 WL 2173673, at *14 (quoting Baby Neal, 43 F.3d at 63–64). Accordingly, the district court found that the class could be certified under Rule 23(b)(2) because “most of the injunctive relief aims to improve the DFPS PMC system as a whole, not to afford relief to individual Plaintiffs.” Id. at *15.
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No. 11-40789 Further, the district court held that even though the Named Plaintiffs requested some forms of relief that would not apply to all class members, “such as the creation of ‘expert panels to review the cases of all class members who have had more than four placements,’ or ‘expert panels to review the cases of all class members who have been in the PMC of the state for more than two years,’” that requested relief was not “fatal to Rule 23(b)(2) certification.” Id. at *15. The district court found it irrelevant that some of the class’s requested relief would not apply to every class member, or even that some of the relief would require individualized analysis and remedies, because all of the class members are in the PMC and would benefit from relief designed to force Texas to administer the PMC, “in the manner required by law.” Id. at *16. Texas asserts that the district court abused its discretion by certifying the proposed class under Rule 23(b)(2). It contends that “individual issues overwhelm cohesiveness” because the class members have not been harmed in essentially the same way, thereby preventing the district court from crafting classwide injunctive relief without examining the individual circumstances of class members. Further, it asserts that the class does not meet Rule 23(b)(2)’s requirements because the class members allege that they “are all injured by a smorgasbord of day-to-day, case-by-case operational failures on the part of the state, as opposed to the State’s implementation of any specific policy uniformly affecting—and injuring—each child.”
b Although some of the proposed class’s sub-claims could potentially be certified under Rule 23(b)(2), its “super-claim” cannot be certified under that subsection because it includes requests for individualized relief on behalf of individual children within several subclasses of the class. In Wal-Mart, the Supreme Court, in construing the language of Rule 23(b)(2), held “that, at a minimum, claims for individualized relief . . . do not satisfy the Rule.” 131 S. Ct.
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No. 11-40789 at 2557. Specifically, the Court concluded that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id.
Accordingly, we find that the proposed class claims do not satisfy Rule 23(b)(2) because they include claims for individualized injunctive relief. For instance, the Named Plaintiffs request injunctive relief ordering the formation of “special expert panels to review the cases” of all individual class members in certain subgroups of the class to determine whether their “services” or “permanency” needs were “being adequately addressed and, if not, to implement appropriate remedial steps to seek and secure permanency for [or meet the service needs of] these children.” The district court concluded that the claims underlying this requested relief satisfy the requirements of Rule 23(b)(2) because the relief (1) was intended to remedy the State’s systemic failure to adequately consider the class member’s needs and (2) would benefit all children in the PMC by improving the State’s foster care system. We disagree.
The requested “special expert panel” relief undermines the Named Plaintiffs’ argument that all of their claims seek to remedy “group as opposed to individual injuries.” Casa Orlando, 624 F. 3d at 198. By requesting an injunction creating a “special expert panel” to review the cases of individual class members and then “implement appropriate remedial steps” to remedy their individual injuries, the Named Plaintiffs have attempted to remove any force from the doctrine precluding certification “when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart, 131 S. Ct. at 2557; see id. at 2558 (holding that for a class certified under Rule 23(b)(2), “the relief sought must perforce affect the entire class at once”); see also Shook v. Bd. of Cnty. Comm’rs, 543 F.3d 597, 604 (10th
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Case: 11-40789 Document: 00511798331 Page: 23 Date Filed: 03/23/2012
No. 11-40789
Cir. 2008) (“Shook II”)(“A class action may not be certified under Rule 23(b)(2) if relief specifically tailored to each class member would be necessary to correct the allegedly wrongful conduct of the defendant.”) (citation omitted).6
A proposed class cannot avoid Rule 23(b)(2)’s prohibition on claims for individualized relief by petitioning the district court to order the defendant to craft individualized “injunctive-type” relief for certain class members. See Jamie S., 668 F.3d at 499 (holding that proposed injunctive relief did not satisfy Rule 23(b)(2) when the district court’s order “would merely initiate a process through which highly individualized determinations of liability and remedy are made; this kind of relief would be class-wide in name only, and it would certainly not be final”). Accordingly, we find that the requested individual relief implicitly establishes that at least some of the proposed class’s underlying claims allege individual injuries that are not uniform across the class; thus, as currently pleaded, the proposed class lacks cohesiveness to proceed as a 23(b)(2) class. Maldonado, 493 F.3d at 524–25 (holding district court did not abuse its discretion in denying class certification under Rule 23(b)(2) because “individualized issues here overwhelm class cohesiveness”).
On the other hand, we do not necessarily agree with Texas’s argument that the proposed class can only be certified under Rule 23(b)(2) if its claims are premised on a “specific policy [of the State] uniformly affecting—and injuring—each child.” Rather, the class claims could conceivably be based on an allegation that the State engages in a pattern or practice of agency action or inaction—including a failure to correct a structural deficiency within the agency, such as insufficient staffing—“with respect to the class,” so long as declaratory
6 Our holding is not intended to limit a district court’s ability to appoint special masters or other parties to monitor a defendant’s compliance with qualifying court-ordered classwide relief, see Ayers v. Thompson, 358 F.3d 356, 365 nn.8–9 (5th Cir. 2004), or to prevent courts from fashioning more specific relief in the face of a defendant’s failure to comply with a court’s earlier orders. See Wyatt v. Aderholt, 503 F.2d 1305, 1309–10 (5th Cir. 1974).
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No. 11-40789 or injunctive relief “settling the legality of the [State’s] behavior with respect to the class as a whole is appropriate.” FED. R. CIV. P. 23(b)(2) 1966 Amendment advisory committee note; see id. (“Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.”).7 See also DG, 594 F.3d at 1201 (“Here the ‘grounds’ that have general application to the class are that all class members have been placed in [Oklahoma’s] foster care program and, as such, caseworkers monitor all class members in a system that allegedly fails to ensure they do not carry caseloads so demanding that they cannot monitor class members adequately.”).
However, that relief must comply with the requirements of Rule 23(b)(2). In addition to demonstrating that the requested relief does not require individualized determinations and that the class members “have been harmed in essentially the same way,” Maldonado, 493 F.3d at 524, we find that Named Plaintiffs must make an “effort to give content to what it would mean to provide adequate . . . or ‘appropriate’ levels of services” so that “final injunctive relief may be crafted to ‘describe in reasonable detail the acts required.’” Shook II, 543 F.3d at 605–06 (citations omitted); see id. (“The problem in our case is that plaintiffs have eschewed any effort to give content to what it would mean to provide adequate mental health staff, adequate screening, or an adequate system of mental education.”).
7 Indeed, it is not clear how several of the State’s alleged failures, such as its failure to (1) maintain sufficient licensing standards for its placements, (2) maintain an adequate number and array of placements, or (3) employ a sufficient number of caseworkers, can be considered “day-to-day, case-by-case operational failures.”
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No. 11-40789
III The common thread running through the proposed class’s current deficiencies under both Rule 23(a)(2) and 23(b)(2) is that it has attempted to aggregate a plethora of discrete claims challenging aspects of Texas’s PMC into one “super-claim.” Yet the only element that these various claims unequivocally share is that they allege the State’s administration of the PMC harms or presents a risk of harm to some children in the class. Given the complexity of performing the required “rigorous analysis” under Rule 23 when faced with such an “amorphous” super-claim, we note that the Second Circuit directed the district court in a similar case to certify subclasses under Rule 23(c)(4) on remand.8 Marisol A., 126 F.3d at 378 (holding that each of the certified subclasses actually “consists of smaller groups of children, each of which has separate and discrete legal claims pursuant to particular federal and state constitutional, statutory, and regulatory obligations of the defendants”). Although we take no position regarding whether the district court should certify subclasses on remand, we note that if the district court decides to do so, it should (1) perform a rigorous analysis regarding whether the class claims of each of the subclasses meets the requirements of Rule 23 and (2) comply with the instructions for certifying subclasses contained in Marisol A. See id. at 378–79.9 Lastly, if the district court decides to certify subclasses, it should
8 We acknowledge that the Marisol A. court found that the district court did not abuse its discretion by certifying a similar class action. But the court did acknowledge that the proposed class “stretche[d] the notions of commonality and typicality,” 126 F.3d at 377, and it was decided before the Supreme Court’s opinion in Wal-Mart.
9 We further note that in the only circuit case involving a similar challenge to a State’s foster care system, DG, 594 F.3d 1188, the district court (1) noted that “many of the questions of fact and law plaintiffs allege to be common do not appear to be, in fact, common,” and (2) only explicitly found that the class claims presented one common question of fact and one common question of law. DG ex rel. Stricklin v. Henry, No. 08-cv-074-GKF-FHM, at *8–10 (N.D. Okla. May 5, 2009) (order granting motion to certify class).
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specifically identify the applicable requested relief for each of the certified subclass claims.
IV We VACATE the district court’s class certification order and REMAND to the district court for proceedings consistent with this opinion.
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 Case 2:11-cv-00084 Document 130 Filed in TXSD on 06/01/12 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend, Sarah R. Stukenberg, )

D.I., by his next friend, Nancy G. Pofahl,

)

Z.H., by his next friend, Carla B. Morrison,

)

S.A., by her next friend, Javier E. Solis,

)

A.M., by her next friend, Jennifer Talley,

)

J.S., H.V., P.O., and J.V., by their next friend, )

Anna J. Ricker,

)

K.E., by her next friend, John W. Cliff, Jr., and )

D.P., by her next friend, Karen J. Langsley,

)

individually and on behalf of all others similarly )

situated,

)

)

Plaintiffs,

)

v.

) )

CASE NO. 2:11-cv-00084

)

RICK PERRY, in his official capacity as

)

Governor of the State of Texas,

)

THOMAS SUEHS, in his official capacity as )

Executive Commissioner of the Health )

and Human Services Commission of the )

State of Texas, and

)

HOWARD BALDWIN, in his official capacity )

as Commissioner of the Department of )

Family and Protective Services of the

)

State of Texas,

)

)

Defendants.

)

PLAINTIFFS’ AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION

Case 2:11-cv-00084 Document 130 Filed in TXSD on 06/01/12 Page 2 of 37
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 JURISDICTION AND VENUE ......................................................................................................3 PARTIES .........................................................................................................................................3
A. Named Plaintiffs ......................................................................................................3 B. Defendants ...............................................................................................................5 CLASS DEFINITIONS ...................................................................................................................6 COUNT I: SUBSTANTIVE DUE PROCESS UNDER THE U.S. CONSTITUTION ..................8 A. Structural Deficiencies That Harm All Putative Members of the
General Class ...........................................................................................................8 B. Structural Deficiencies that Harm All Putative Members of the
Licensed Foster Care Subclass...............................................................................10 C. Structural Deficiencies That Harm All Putative Members of the
Foster Group Home Subclass.................................................................................16 D. Structural Deficiencies That Harm All Putative Members of the
Basic Care GRO Subclass......................................................................................17 E. Structural Deficiencies That Harm All Putative Members of the
Unverified Kinship Subclass..................................................................................19 COUNT II: FIRST, NINTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION ..........................................................................................................................20 CLASS ACTION ALLEGATIONS ..............................................................................................22 PRAYER FOR RELIEF ................................................................................................................30
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INTRODUCTION 1. The entire foster care system in Texas is administered by the Department of Family and Protective Services (“DFPS”). Within DFPS, the Child Protective Services Division (“CPS”) is required to investigate reports of child abuse and neglect. When CPS determines that a child has been maltreated and that he is not safe in his own home, CPS removes the child and petitions the appropriate court for Temporary Managing Conservatorship (“TMC”) of the child. If the court grants TMC, DFPS is required to provide a temporary placement and to try to reunify the child with his family, if it is safe and appropriate to do so, or to try to place the child with a new, permanent family. DFPS may retain TMC of a child for up to one year (or 18 months with court approval). After that time, if the child has not been reunited with his birth family or provided with some other permanent family, the child is formally placed into the Permanent Managing Conservatorship (“PMC”) of the State. The children who are now or will be in the PMC of the State are the sole focus of this lawsuit. 2. Already vulnerable from having suffered the abuse or neglect that brought them into the foster care system in the first place, children in the PMC of the State are at risk of further maltreatment while in the State’s care because of structural deficiencies in the Texas foster care system. For example, children whose caseworkers carry excessive caseloads suffer longer stays in state custody, placements that are not suited to their needs, frequent moves from one placement to another, and maltreatment and a higher risk of maltreatment in care. 3. Once children enter the State’s PMC, the likelihood that they exit from State custody and into a permanent home drops off markedly. The median length of stay for children who were in the State’s PMC at the end of August 2011 was more than three years. These children languish in State care even though, as of July 2011, more than half of the children in the State’s PMC
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were legally free for adoption. Each year, far too many children leave the State’s PMC only when they turn 18 and “age out.” In state Fiscal Year 2011, 1,202 children in the State’s PMC aged out, or 17.5 percent of all children who exited the State’s PMC in 2011. 4. Further, while the State retains legal responsibility for each child in its conservatorship, Texas relies heavily on private child placing agencies who contract with the State to provide foster care for these children. As of March 31, 2011, 82 percent of the children in the State’s PMC who were in foster family homes, and 98 percent of the children in the State’s PMC who were in foster group homes, were in homes administered by private child placing agencies. 5. Approximately one-third of children in the custody of Texas and one-quarter of all children in PMC were placed in unlicensed and unreimbursed “kinship” care with relatives as of August 31, 2011. The State’s failure to require licensing of all kinship placements, and its failure to provide foster care payments to unlicensed kinship homes, deprives all children who are or will be in such placements of the safety and well-being to which they are entitled. 6. Texas policies and practices result in structural deficiencies that put all children who are or will be in the State’s PMC at an unacceptable risk of harm, including abuse and neglect, while in care. Among other deficiencies, Texas employs an insufficient number of caseworkers; has an insufficient number, geographic distribution, and array of placement options; and fails to monitor and enforce compliance with the licensing standards for its foster care placements. Additionally, Texas places a significant percentage of the children in its PMC in unlicensed kinship placements and inappropriate group care settings that do not meet accepted professional standards. Collectively, these structural deficiencies lead to grim consequences: children in the State’s PMC suffer maltreatment at an unacceptable rate, are subjected to frequent and repeated
2

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moves among placements, and too often are separated from their siblings and home communities.
JURISDICTION AND VENUE 7. Because this action is brought pursuant to 42 U.S.C. § 1983, this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 8. Venue is proper in this judicial district, pursuant to 28 U.S.C. § 1391(b), because a substantial portion of the events or omissions giving rise to the claims occurred in this district, in that:
a. Named Plaintiff M.D. is a legal resident of this Division and entered Department of Family and Protective Services custody in this Division;
b. Named Plaintiff D.I. is a legal resident of this District and, along with Named Plaintiff S.A., entered DFPS custody in this District;
c. Named Plaintiffs M.D., D.I., S.A., J.S., K.E., and D.P. have been, at times, placed in this District; and
d. Named Plaintiff D.I. is currently placed in this District. PARTIES
A. Named Plaintiffs 9. M.D. is a fifteen-year-old girl from Corpus Christi, in Nueces County, who is in the Permanent Managing Conservatorship of the State of Texas. She is currently at a residential treatment center (“RTC”) in New Ulm, in Austin County, about four hours from her hometown. M.D. appears by her next friend, Sarah R. Stukenberg. Ms. Stukenberg is suited to represent M.D.’s best interests in this case. 10. D.I. is a ten-year-old boy from Houston, in Harris County, who is in the Permanent Managing Conservatorship of the State of Texas. D.I. currently resides in a family foster home. D.I. appears by his next friend, Nancy Pofahl. Ms. Pofahl is suited to represent his best interests
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in this case. 11. Z.H. is an eleven-year-old boy from San Antonio, in Bexar County, who is in the Permanent Managing Conservatorship of the State of Texas. He currently resides in an RTC in Nacogdoches, about 300 miles from his home community of San Antonio. Z.H. appears by his next friend, Carla B. Morrison. Ms. Morrison is suited to represent his best interests in this case. 12. S.A. is a sixteen-year-old girl who came into DFPS custody in Brownsville, in Cameron County. S.A. currently resides at an RTC in Harris County, six hours from Brownsville. S.A. is in the Permanent Managing Conservatorship of the State of Texas. S.A. appears by her next friend, Javier E. Solis. Mr. Solis is suited to represent her best interests in this case. 13. A.M. is a fourteen-year-old girl from Canton, in Van Zandt County, who is in the Permanent Managing Conservatorship of the State of Texas. A.M. is currently living in an unverified kinship placement with her great-grandmother in DeKalb, Bowie County. A.M. appears by her next friend, Jennifer Talley. Ms. Talley is suited to represent her best interests in this case. 14. J.S. is a ten-year-old boy from Morton, in Cochran County, who is in the Permanent Managing Conservatorship of the State of Texas. He currently resides in an RTC in Goldthwaite, approximately 325 miles from Morton. J.S. appears by his next friend, Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 15. H.V. is a twelve-year-old boy from Levelland, in Hockley County, who is in the Permanent Managing Conservatorship of the State of Texas. H.V. is in a foster group home in Lubbock. H.V. appears by his next friend Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 16. P.O. is a nine-year-old boy from Levelland, in Hockley County, who is in the Permanent
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Managing Conservatorship of the State of Texas. P.O. is in a foster group home in Lubbock. P.O. appears by his next friend Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 17. J.V. is an eleven-year-old boy from Levelland, in Hockley County, who is in the Permanent Managing Conservatorship of the State of Texas. J.V. is receiving basic child care services in a non-emergency general residential operation in Lubbock. J.V. appears by his next friend Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 18. K.E. is a seventeen-year-old girl from Odessa, in Ector County, who is in the Permanent Managing Conservatorship of the State of Texas. K.E. is currently residing in an RTC in New Ulm, in Austin County, nearly eight hours from Odessa. K.E. appears by her next friend John W. Cliff, Jr. Mr. Cliff is suited to represent her best interests in this case. 19. D.P. is a seventeen-year-old girl from Lockhart, in Caldwell County, who is in the Permanent Managing Conservatorship of the State of Texas. She currently resides in an RTC in San Antonio. D.P. appears by her next friend, Karen J. Langsley. Ms. Langsley is suited to represent her best interests in this case. B. Defendants 20. Defendant RICK PERRY is the Governor of Texas, and is sued in his official capacity. He is responsible for ensuring that all Texas agencies comply with applicable federal and state law, and he oversees and directs the activities of the Texas Health and Human Services Commission and the Department of Family and Protective Services, pursuant to the Texas Constitution Article IV Sections 1 and 10, and to the Texas Government Code Title 4, Chapter 531. His business address is Office of the Governor, State Insurance Building, 1100 San Jacinto Boulevard, Austin, Texas 78701.
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21. Defendant THOMAS SUEHS is the Executive Commissioner of the Texas Health and Human Services Commission, and is sued in his official capacity. Pursuant to Texas Government Code Section 531.0055 et seq., the Executive Commissioner has broad policy and rule-making authority for the commission and its constituent agencies, including DFPS. Executive Commissioner Suehs reports to the Governor, Rick Perry, and serves at his pleasure. Defendant Suehs’ business address is Texas Health and Human Services Commission, BrownHeatly Building, 4900 North Lamar Boulevard, 7th Floor, Austin, Texas 78751. 22. Defendant HOWARD BALDWIN is the Commissioner of DFPS, and is sued in his official capacity. Pursuant to the Texas Government Code Title 4, Chapter 531, he is responsible for administering properly and efficiently all DFPS child welfare services and programs; providing for the care of the children served by the department; directing the placement of children in appropriate state programs and/or facilities; and assuring that all contracted and other programs and facilities providing child welfare services operate in conformity with constitutional, statutory, and regulatory requirements. Pursuant to Texas Government Code Section 531.0056(a), the Commissioner is appointed by the Executive Commissioner of the Texas Health and Human Services Commission, with the approval of the Governor, and serves at the pleasure of the Executive Commissioner. His business address is Texas Department of Family and Protective Services, 701 West 51st Street, Austin, Texas 78751.
CLASS DEFINITIONS 23. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution on behalf of:
a. a class comprised of all children who are now or will be in the Permanent Managing Conservatorship of the State of Texas’s Department of Family and Protective 6

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Services (“General Class”); b. a subclass comprised of all members of the General Class who are now or will be in a
licensed or verified foster care placement, except those members of the General Class who are now or will be in a verified kinship placement (CPS Handbook § 6322.1213) (“Licensed Foster Care Subclass”); c. a subclass comprised of all members of the General Class who are now or will be in a foster group home, defined by state law as a facility that is the primary residence of the caregiver(s) and provides 24-hour residential care for seven to 12 children, Tex. Hum. Res. Code § 42.002(5) (“Foster Group Home Subclass”); d. a subclass comprised of all members of the General Class who are now or will be in a general residential operation (“GRO”), defined by state law as a residential child care operation that provides child care for 13 or more children or young adults, Texas Hum. Res. Code § 42.002(4), 40 Tex. Admin. Code § 748.43(23), and who are or will be receiving solely non-emergency, basic child care services, which the state defines as “[s]ervices that meet a child’s basic need for shelter, nutrition, clothing, nurture, socialization and interpersonal skills, care for personal health and hygiene, supervision, education, and service planning,” 40 Tex. Admin. Code § 748.61 (“Basic Care GRO Subclass”); and e. a subclass comprised of all members of the General Class who are or will be in an unverified kinship placement, defined by state policy as a placement with a relative or other person who has a longstanding and significant relationship with the child, but is not verified, licensed, or certified as a foster parent, CPS Handbook § 6322.12-13 (“Unverified Kinship Subclass”).
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COUNT I: SUBSTANTIVE DUE PROCESS UNDER THE U.S. CONSTITUTION (Asserted by the Named Plaintiffs on behalf of all Plaintiff Children in the General Class
and in every Subclass) 24. State officials assume affirmative duties under the Fourteenth Amendment to the United States Constitution to protect from harm all children taken into foster care custody, and to provide them appropriate care, treatment, and services through the exercise of accepted professional judgment. 25. Defendants, in their official capacities, have failed and continue to fail to discharge their affirmative duties because their actions and inactions constitute state policies or practices that substantially depart from accepted professional judgment, practice, and standards as to demonstrate that Defendants did not base their conduct on such a judgment and/or shock the conscience by constituting deliberate indifference to the constitutionally protected rights and liberty and privacy interests of children who are now or will be in the State’s PMC. More specifically, Plaintiffs complain of the following actions and inactions of Defendants that have produced structural deficiencies in the State’s foster care system that harm children who are now or will be in the PMC of the State. A. Structural Deficiencies That Harm All Putative Members of the General Class 26. Texas employs an insufficient number of caseworkers. Caseworkers are responsible for many of the critical tasks upon which the Plaintiff Children depend: placing children in the least restrictive placements that are safe and meet their needs; regularly visiting children in those placements; ensuring the development and implementation of case plans needed by Plaintiff Children; ensuring children receive needed services; and developing and implementing a permanency plan for each child to ensure that they leave State custody for permanent families
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whenever possible. 27. Professional standards, as promulgated by the Child Welfare League of America, require that caseworkers have caseloads that range from 12 to 15 children in order to fulfill their responsibilities, Standards of Excellence for Family Foster Care Services 3.48, and Texas state law requires that DFPS worker caseloads be consistent with “professional caseload standards,” Tex. Gov’t Code § 531.048(b)(3), which are defined to include caseload standards established by the Child Welfare League of America, Tex. Gov’t Code § 531.001(5). Texas employs too few caseworkers to provide General Class members with caseworkers whose caseloads meet professional standards. The average caseload for DFPS substitute care caseworkers for state Fiscal Year 2011 was 32.0 cases and has been rising for several years. Indeed, as of August 31, 2011, 55 percent of the caseworkers serving children in the State’s PMC had caseloads that exceeded 30 cases, which is substantially above professional standards; and 322 workers, or 24 percent of the caseworkers serving those children, had caseloads of more than 40 cases. 28. As Defendants have admitted, workers are less able to fulfill their responsibilities and ensure the safety of the children in their care, as required by Texas state policy and professional standards, when they carry excessive caseloads. For example, children whose workers carry excessive caseloads are harmed by and put at risk of harm by placement decisions made without adequate information. Excessive caseloads cause children in the State’s PMC to experience longer stays in State custody without the opportunity for a permanent family; placements not suited to their needs; frequent and repeated moves from one placement to another; and maltreatment and higher risk of maltreatment in care. High caseloads also contribute to high employee turnover rates, exacerbating systemic instability. 29. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-28, all Plaintiff
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Children in the General Class have been harmed and are at continuing risk of harm, including abuse and neglect. 30. Defendants’ actions and inactions listed above in ¶¶ 1-6, 24-28 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the General Class. 31. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-28, all Plaintiff Children in the General Class have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. B. Structural Deficiencies that Harm All Putative Members of the Licensed Foster
Care Subclass 32. Texas maintains an insufficient number, geographic distribution, and array of placements. Texas state policy expressly provides that it is preferable that all children be placed in the least restrictive placement appropriate to the needs of a child and that a child be placed in the child’s home community with the child’s sibling group intact. However, for a long period of time, and with knowledge of widespread structural deficiencies, Defendants have failed to maintain a sufficient number, geographic distribution, and array of foster care placements to meet the reasonably anticipated needs of Plaintiff Children in the Licensed Foster Care Subclass. In a September 2010 report to the legislature, DFPS acknowledged that “[f]inding appropriate placements for children who come into foster care remains difficult because the needs of the children do not always match the number, type, and location of the placement options available.”
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More recently, DFPS, in explaining why its foster care system needed to be redesigned, pointed to some of the structural deficiencies in its placement array, including an “[i]mbalance in geographic distribution of services and providers” and an “[i]nsufficient number of residential providers that offer a full continuum of services,” resulting in the placement of children outside of their home communities, an increased number of changes in placement, separation from siblings and family, lack of educational continuity, and a fractured support system. 33. Texas’s insufficient placement array leads to the following inappropriate placements:
a. The State inappropriately places children in non-therapeutic, non-emergency group care. Due to the insufficient number and array of foster family homes, the State places children in group care placements when they should be placed in the least restrictive, most family-like settings where their needs can be met. As of March 31, 2011, approximately 13 percent of children in the State’s PMC resided either in foster group homes or were receiving basic child care services in non-emergency general residential operations. DFPS policy explicitly recognizes that foster group homes and general residential operations are more restrictive placements than foster family homes.
b. Children are placed, or are at an unreasonable risk of being placed, far from their home communities. The unavailability of suitable placements also puts children in placements far from their home communities. As of February 29, 2012, 6,626 children, or 55 percent of the children in the State’s PMC, had been placed outside of their home counties, and 2,986 children, or 25 percent of the children in the State’s PMC, had been placed not only outside of their home counties but also outside of their large multi-county DFPS Regions. In addition to these overall statistics, another 11

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manifestation of this structural deficiency in Texas foster care policies and practices is that, as of August 31, 2011, Harris County and its neighboring counties of Brazoria, Fort Bend, and Galveston had 36 of the 85 RTCs operating in the State. In June 2010 legislative testimony, then-Commissioner Heiligenstein recognized that six out of ten children placed in Houston-area RTCs were from other regions across the state. She described the State’s network of residential treatment centers as a “scatter-gram” that unnecessarily complicates the lives of already troubled youth. c. Children are subject to, or are at an unreasonable risk of being subjected to, frequent moves from one placement to another. The unavailability of appropriate foster care placements also subjects children in the Licensed Foster Care Subclass to frequent and repeated moves from one placement to another and to an unreasonable risk of these placement moves. As of August 31, 2011, 35 percent of the children in the State’s PMC had been in five or more placements while in State custody. d. Children are separated from, or are at an unreasonable risk of being separated from, their siblings. Federal and state policy, as well as accepted professional standards, dictate that children be placed with their siblings while in foster care unless there is a therapeutic or safety-related reason to separate them. However, due to the unavailability of suitable placements, siblings in Texas foster care are too often separated for no therapeutic or safety-related reason. As of March 31, 2011, almost two-thirds of the children in the State’s PMC were part of sibling groups. Yet only 53.6 percent of these sibling groups were intact—that is, all of the children in the sibling group were placed together. In 26 percent of the sibling groups, none of the siblings were placed together.
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34. The inadequate number, geographical distribution, and array of placements causes harm to children in the Licensed Foster Care Subclass. The lack of appropriate placement options causes all children in the Licensed Foster Care Subclass to be placed inappropriately, or to be at an unreasonable risk of being placed inappropriately. Licensed Foster Care Subclass members are improperly placed in group care settings, thus deprived of the family-like settings mandated both by accepted professional standards and Texas’s own policies. Frequent and/or distant placement moves result in educational discontinuity and a deficient social support system. It is well-established that each move that a foster child experiences interrupts normal development and adds psychological trauma, with long-term implications for the child’s ability to develop healthy interpersonal relationships, good self-esteem, and even a conscience. Moreover, the health and safety of children placed far from their home communities may not be monitored by anyone with whom the children have a trusting relationship, as it is difficult for family members, court advocates, and even the children’s primary DFPS caseworkers to visit distant placements. Further, according to a December 2010 report to the Legislature by the Adoption Review Committee, the members of which were appointed by Governor Perry and Executive Commissioner Suehs, inappropriate sibling placement decisions “hinder and delay a child’s path to permanency.” Then-Commissioner Heiligenstein similarly acknowledged in a February 2011 presentation to the Texas House Human Services Committee that sibling separation negatively impacts children’s well-being and permanency outcomes. 35. Texas is deficient in its oversight and monitoring of foster care placements and fails to enforce compliance with its licensing standards. Texas fails to adequately monitor and oversee the child placing agencies and residential child care facilities that it licenses to take care of the children in foster care because it does not allocate sufficient resources to such oversight and
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because it does not enforce compliance with its own licensing standards. Instead of providing sufficient oversight of the safety of the children in their custody, Defendants rely too heavily upon the child placing agencies and residential facilities (almost all of which are private contractors) to “verify” the suitability of the thousands of homes and facilities that they manage and to monitor the safety of the children who reside in them. 36. The Residential Child Care Licensing division (“RCCL”) of DFPS is charged with licensing and regulating all child placing agencies and residential child care facilities in Texas. In 2011, those agencies and facilities included approximately 350 child placing agencies (including branch offices), 85 RTCs, and 160 other types of GROs (e.g., group care facilities, including emergency shelters and campus-type settings). Those agencies and facilities were responsible for approximately 8,200 children in foster care placements in the State’s PMC. RCCL was tasked with overseeing more than 600 operations (which include more than 10,000 individual homes and facilities) with a staff of only 124 caseworkers and 24 supervisors. In state Fiscal Year 2011, RCCL found “deficiencies” in minimum standards of care in about 30 percent of the investigations it conducted at licensed agencies and facilities. The most common of these “deficiencies” involved use of corporal punishment; failure to complete required background checks; and deficiencies in the competency, judgment, and level of supervision of employees and caregivers. In response to these 816 findings of minimum standards deficiencies, Texas initiated only 16 “corrective actions” (13 “evaluations” and three “probations”) and took only two “adverse actions” (one permit suspension and one permit denial) against these 600 agencies and facilities. 37. Texas’s failure to adequately oversee and monitor its child placing agencies and residential facilities results in an unacceptable level of abuse and neglect for foster children in
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the State’s PMC. Defendants’ own data shows that, for the period of October 25, 2010 to October 25, 2011, children in foster care in the State’s PMC were abused at an unacceptable rate. 38. Defendants’ deficient oversight of its agencies and residential facilities includes Defendants’ failure to enforce their own licensing standards and policies designed to ensure the safety and well-being of the children in their custody: For example, in early 2011, DFPS’s Child Care Licensing Division’s Performance Management Unit issued a report identifying numerous deficiencies in RCCL’s oversight and monitoring of the State’s residential child care operations. These deficiencies included a failure to do timely or effective follow-up inspections in more than a third of the residential operations with deficiencies that were sampled; an over-reliance on child placing agencies to investigate the foster homes they manage, apparently resulting in increased risk to the children in those homes; and the failure of virtually all of the corrective actions reviewed by the Performance Management Unit to reduce risk to children. In other words, Defendants do not have an adequate system or sufficient resources to ensure or enforce compliance with their own licensing standards, standards ostensibly designed to protect the safety and well-being of children cared for in foster care placements. 39. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, and 32-38, all Plaintiff Children in the Licensed Foster Care Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 40. Defendants’ actions and inactions listed above in ¶¶ 1-6, 24-25, and 32-38 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Licensed Foster Care Subclass. 41. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, and 32-38, all Plaintiff Children in the Licensed Foster Care Subclass have been and are at continuing risk of
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being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. C. Structural Deficiencies That Harm All Putative Members of the Foster Group
Home Subclass 42. Foster group homes do not conform to accepted professional standards in several significant respects:
a. Foster group homes have insufficient staffing ratios. In Texas, the permissible ratio in foster group homes of caregiver to child (who does not require specialized care) is one to eight, or one to five if any child is under five years old. These caregiver-tochild ratios do not conform to accepted professional standards for child care facilities with the capacity permitted in Texas’s foster group homes (seven to 12 children).
b. Foster group home caregivers have insufficient training. The training and qualifications required by Texas for caregivers in foster group homes fall short of those required by accepted professional standards for caregivers in group living facilities. Even though twice as many children may be placed in a Texas foster group home than may be placed in a Texas foster family home, Texas requires no additional training for foster group home caregivers beyond that which is required for foster family home caregivers.
c. Foster group homes have insufficient professionals on staff. Texas does not require caregivers in foster group homes to be professionals, nor does it require that medical professionals be on staff or on call at foster group homes, contrary to accepted
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professional standards for group living facilities. d. Foster group homes do not require waking caregivers. Accepted professional
standards require that at least one caregiver be awake at all times in any group care facility. In Texas, there is no policy or practice requiring at least one caregiver to remain awake at all times in a foster group home. 43. Defendants’ placement of children in foster group homes results in harm and risk of harm to the safety and well-being of the children housed in such facilities. 44. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, 32-35, and 4243, all Plaintiff Children in the Foster Group Home Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 45. Defendants’ actions and inactions listed above in ¶¶ 1-6, 24-25, 32-35, and 42-43 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Foster Group Home Subclass. 46. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, 32-35, and 4243, all Plaintiff Children in the Foster Group Home Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive care, treatment, and services determined and provided through the exercise of accepted professional judgment. D. Structural Deficiencies That Harm All Putative Members of the Basic Care GRO Subclass 47. Texas uses general residential operations to house children who should not be placed in large group living facilities. Accepted professional standards discourage the use of non-
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emergency group living facilities for children who need only basic child care services because such facilities are not the least restrictive, most family-like setting that meets the needs of these children. Texas’s own policy also discourages the use of restrictive, non-family placement settings like GROs, but they are used by DFPS for children needing only basic child care services because Texas has no appropriate placements for these children. Texas places children who need only basic child care services in large group care institutions, which it calls “general residential operations.” Moreover, there are no limits on the numbers of children that can be housed in a GRO, effectively turning some of these GROs into modern-day orphanages, with more than a hundred children in residence. 48. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, 32-35, and 47, all Plaintiff Children in the Basic Care GRO Subclass have been harmed and are at continued risk of harm, including abuse and neglect. 49. Defendants’ actions and inactions listed above in ¶¶ 1-6, 24-25, 32-35, and 47 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Basic Care GRO Subclass. 50. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, 32-35, and 47, all Plaintiff Children in the Basic Care GRO Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment.
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E. Structural Deficiencies That Harm All Putative Members of the Unverified Kinship Subclass
51. Texas fails to require that its kinship homes be licensed or verified. Under Texas policy and practice, a kinship caregiver for a child in State custody is not required to be licensed or verified as a foster parent. Accepted professional standards require that such kinship homes meet the same standards as a licensed or verified foster home. 52. Unverified kinship providers do not receive necessary training. Under Texas policy and practice, unverified kin providers do not receive the same training for the care of children in State custody that is provided to licensed and verified foster parents. Accepted professional standards recognize that all kin providers should undergo such training for the care of children. 53. Children in unverified kinship care receive insufficient monetary assistance. Under Texas policy and practice, children in unverified kinship placements do not receive the monthly foster care financial support that the State provides to children living with licensed foster parents. Accepted professional standards recognize that all children in kinship care should receive foster care financial support to help cover costs for food, clothing, and other necessities. 54. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, and 51-53, all Plaintiff Children in the Unverified Kinship Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 55. Defendants’ actions and inactions listed above in ¶¶ 1-6, 24-25, and 51-53 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Unverified Kinship Subclass. 56. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 24-25, and 51-53, all Plaintiff Children in the Unverified Kinship Subclass have been and are at continuing risk of
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being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive care, treatment, and services determined and provided through the exercise of accepted professional judgment.
COUNT II: FIRST, NINTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
(Asserted by Named Plaintiffs M.D., D.I., Z.H., S.A., J.S., H.V., P.O., J.V., K.E., and D.P. on behalf of all Plaintiff Children in the Licensed Foster Care Subclass)
57. Each of the foregoing allegations is incorporated as if fully set forth herein. 58. A right of family integrity and a right to a permanent family derive from the First Amendment’s right of association, the Ninth Amendment’s reservation of rights to the people, and the Fourteenth Amendment’s substantive due process protections. 59. The foregoing and following actions and inactions of Defendants Rick Perry, Thomas Suehs, and Howard Baldwin, in their official capacities, constitute a policy or practice that is such a substantial departure from accepted professional judgment, practice, and standards as to demonstrate that Defendants did not base their conduct on such a judgment and/or shock the conscience by constituting deliberate indifference to the constitutionally protected rights of all Plaintiff Children in the Licensed Foster Care Subclass in the following respects: 60. Texas fails to maintain a sufficient number, geographic distribution, and array of placements. For many years and with knowledge of structural deficiencies, Defendants have maintained an insufficient number, geographic distribution, and array of foster care placements to meet the reasonably anticipated needs of Plaintiff Children in the Licensed Foster Care Subclass. 61. Children are placed far from their home communities. The lack of suitable placements
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subjects children to the risk of being placed far from their home communities. As of February 29, 2012, 6,626 children, or 5 percent of all children in the State’s PMC, had been placed outside of their home counties, and 2,986 children, or 25 percent of children in the State’s PMC, had been placed not only outside of their home counties but also outside of their large multi-county DFPS Regions. 62. Sibling groups are separated. The lack of suitable placements causes siblings to be separated for no therapeutic or safety reason, contrary to federal and state law, Texas’s own policy, and accepted professional standards. As of March 31, 2011, almost two-thirds of the children in the State’s PMC were part of sibling groups. Yet only 53.6 percent of these sibling groups were intact, that is, all of the children were placed together. In 26 percent of the sibling groups, none of the siblings were placed together. 63. Distant moves and family separation cause harm. Children moved to locations distant from their home communities are subject to a fractured social support system and erosion of familial connections. It is difficult for any family member to visit far-away placements. Further, sibling separation can “hinder and delay a child’s path to permanency,” according to a December 2010 report to the Texas legislature by the Adoption Review Committee. Then-Commissioner Heiligenstein reported to the legislature in February 2011 that sibling separation harms children’s well-being and permanency outcomes. 64. As a result of Defendants’ conduct, all Plaintiff Children in the Licensed Foster Care Subclass have been and are at further risk of being harmed and deprived of the liberty interests, privacy interests, and associational rights not to be deprived of a family relationship where safe and appropriate, as conferred on them by the First, Ninth, and Fourteenth Amendments to the United States Constitution.
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CLASS ACTION ALLEGATIONS 65. This action is properly maintained as a class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 66. As to the General Class of All Plaintiff Children:
a. Numerosity. As of March 31, 2011, there were approximately 12,196 children in the State’s Permanent Managing Conservatorship. The General Class is sufficiently numerous as to make joinder impracticable.
b. Common Question of Fact. Determination of the following common question of fact will resolve in one stroke the following issue that is central to the validity of each one of the individual Class member’s claims: Does the State fail to employ a sufficient number of caseworkers to comply with state policies and accepted professional standards?
c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Class member’s claims: Does the State’s failure to employ a sufficient number of caseworkers mean that children in the General Class have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
d. Typicality. The claims alleged by the Named Plaintiffs and the resultant harms are typical of the claims of each member of the putative General Class. Typicality exists because all absent General Class members have been injured, or are at risk of injury,
as a result of the same harmful state policies and practices.
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e. Adequacy of Representation. Adequacy of representation exists because the Named Plaintiffs will fairly and adequately protect the interests of the General Class. There are no conflicts of interest between any of the Named Plaintiffs and the other General Class members. Moreover, the Named Plaintiffs’ proposed Next Friends, who sue on their behalf, are dedicated to the Named Plaintiffs’ best interests, familiar with this litigation, and willing and able to pursue this case on behalf of the Named Plaintiffs and the General Class that the Named Plaintiffs seek to represent.
67. As to the Licensed Foster Care Subclass: a. Numerosity. As of March 31, 2011, there were approximately 8,200 children in the State’s Permanent Managing Conservatorship who were in licensed or verified foster care, not including those children who were in verified kinship placements. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of fact will resolve in one stroke the following issues that are central to the validity of each one of the individual Subclass member’s claims: i. Does the State fail to maintain an adequate number, geographic distribution, and array of licensed foster care placements to ensure that the needs of the children in the Subclass are met in conformity with accepted professional standards? ii. Does the State fail to maintain oversight and monitoring of its licensed foster care placements sufficient to ensure compliance with its own licensing standards and accepted professional standards for maltreatment in care?
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c. Common Questions of Law. Determination of the following common questions of law will resolve the following legal issues that are central to the validity of each one of the individual Subclass member’s claims: i. Does the State’s failure to maintain an adequate number, geographic distribution, and array of licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? ii. Does the State’s failure to maintain sufficient oversight and monitoring of its licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
iii. Does the State’s failure to maintain an adequate number, geographic distribution, and array of licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the right of family integrity and the right to a permanent family, as conferred on them by the First, Ninth, and Fourteenth Amendments to the United States Constitution?
d. Typicality. The claims alleged by M.D., D.I., Z.H., S.A., J.S., H.V., P.O., J.V., K.E., and D.P. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Licensed Foster Care Subclass
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members have been injured, or are at risk of injury, as a result of the same harmful state policies and practices. e. Adequacy of Representation. Adequacy of representation exists because M.D., D.I., Z.H., S.A., J.S., H.V., P.O., J.V., K.E., and D.P. will fairly and adequately protect the interests of the Licensed Foster Care Subclass. There are no conflicts of interest between M.D., D.I., Z.H., S.A., J.S., H.V., P.O., J.V., K.E., D.P., and the other Licensed Foster Care Subclass members. Moreover, M.D.’s, D.I.’s, Z.H.’s, S.A.’s, J.S.’s, H.V.’s, P.O.’s, J.V.’s, K.E.’s, and D.P.’s proposed Next Friends, who sue on their behalf, are dedicated to M.D.’s, D.I.’s, Z.H.’s, S.A.’s, J.S.’s, H.V.’s, P.O.’s, J.V.’s, K.E.’s, and D.P.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of M.D., D.I., Z.H., S.A., J.S., H.V., P.O., J.V., K.E., D.P., and the Licensed Foster Care Subclass that M.D., D.I., Z.H., S.A., J.S., H.V., P.O., J.V., K.E., and D.P. seek to represent. 68. As to the Foster Group Home Subclass a. Numerosity. As of March 31, 2011, 1,184 children in the State’s Permanent Management Conservatorship were placed in foster group homes. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of fact will resolve in one stroke the following issues that are central to the validity of each one of the individual subcass member’s claims: i. Does the State’s operation of foster group homes constitute a significant
deviation from accepted professional standards regarding staffing ratios? ii. Does the State’s operation of foster group homes constitute a significant
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deviation from accepted professional standards regarding caregiver training? iii. Does the State’s operation of foster group homes constitute a significant
deviation from accepted professional standards regarding staffing of professionals? iv. Does the State’s operation of foster group homes constitute a significant deviation from accepted professional standards regarding waking caregivers? c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Do the State’s policies and practices with respect to the operation of its foster group homes mean that children in the Foster Group Home Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by H.V. and P.O. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Foster Group Home Subclass members have been injured, or are at risk of
injury, as a result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because H.V. and P.O. will fairly and adequately protect the interests of the Foster Group Home Subclass. There are no conflicts of interest between H.V., P.O., and the other Foster Group Home Subclass members. Moreover, H.V. and P.O.’s proposed Next Friend, who sues on their behalf, is dedicated to H.V.’s and P.O.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of H.V., P.O., 26

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and the Foster Group Home Subclass that H.V. and P.O. seek to represent. 69. As to the Basic Care GRO Subclass:
a. Numerosity. As of March 31, 2011, 395 children in the State’s Permanent Management Conservatorship were placed in non-emergency general residential operations and receiving only basic child care services. The Subclass is sufficiently numerous as to make joinder impracticable.
b. Common Question of Fact. Determination of the following common question of fact will resolve in one stroke an issue that is central to the validity of each one of the individual Subclass member’s claims: Does the State’s placement of children needing only basic child care services in non-emergency general residential operations constitute a significant departure from accepted professional standards?
c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Does the State’s placement of children needing only basic child care services in non-emergency general residential operations mean that children in the Basic Care GRO Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
d. Typicality. The claims alleged by J.V. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Basic Care GRO Subclass members have been injured, or are at risk of injury, as a
result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because J.V. will 27

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fairly and adequately protect the interests of the Basic Care GRO Subclass. There are no conflicts of interest between J.V. and the other Basic Care GRO Subclass members. Moreover, J.V.’s proposed Next Friend, who sues on his behalf, is dedicated to J.V.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of J.V. and the Basic Care GRO Subclass that J.V. seeks to represent. 70. As to the Unverified Kinship Subclass: a. Numerosity. As of August 31, 2011, 2,994 children in the State’s Permanent Management Conservatorship were placed in unverified kinship placements. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of fact will resolve in one stroke the following issues that are central to the validity of each one of the individual Subclass member’s claims: i. Do the State’s policies and practices with respect to kinship homes constitute a
significant deviation from accepted professional standards regarding licensing and verification? ii. Do the State’s policies and practices with respect to kinship homes constitute a significant deviation from accepted professional standards regarding training of caregivers? iii. Do the State’s policies and practices with respect to kinship homes constitute a significant deviation from accepted professional standards regarding monthly foster care financial support? c. Common Question of Law. Determination of the following common question of law
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will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Does the State’s use of unverified kinship placements mean that children in the Unverified Kinship Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by A.M. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Unverified Kinship Subclass members have been injured, or are at risk of injury, as a
result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because A.M. will fairly and adequately protect the interests of the Unverified Kinship Subclass. There are no conflicts of interest between A.M. and the other Unverified Kinship Subclass members. Moreover, A.M.’s proposed Next Friend, who sues on her behalf, is dedicated to A.M.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of A.M. and the Unverified Kinship Subclass that A.M. seeks to represent.
71. Each Named Plaintiff appears by a Next Friend, and each Next Friend is sufficiently familiar with the facts of the child’s situation to fairly and adequately represent the child’s interests in this litigation. 72. Plaintiffs’ counsel are:
a. attorneys from the firm Canales & Simonson, P.C., a law firm in Corpus Christi; b. attorneys from the firm Haynes and Boone, LLP, an international law firm with Texas
offices in Austin, Dallas, Fort Worth, Houston, and San Antonio;
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c. attorneys from the firm Yetter Coleman LLP, a Texas law firm with offices in Houston and Austin; and
d. attorneys from Children’s Rights, a non-profit advocacy organization with its office in New York.
73. These lawyers have extensive experience litigating complex class action lawsuits in
federal court, including substantial experience in child welfare class action institutional reform
litigation. Plaintiffs’ attorneys have committed sufficient resources to represent the General
Class and Subclasses. Plaintiffs’ counsel therefore are well-suited to fairly and adequately
represent the interests of the General Class and the Subclasses.
74. Defendants have acted or failed to act on grounds generally applicable to the General
Class and the Subclasses, necessitating declaratory and injunctive relief for the General Class
and the Subclasses. Plaintiffs’ counsel know of no conflicts among General Class or Subclass
members.
PRAYER FOR RELIEF
75. WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action;
b. Order that Plaintiff Children 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’ violation of Plaintiff Children’s substantive right to be free from harm under the due process clause of the Fourteenth Amendment to the United States Constitution, and Defendants’ violation of Plaintiff Children’s rights under the First, Ninth and Fourteenth Amendments to the United States Constitution;
d. Enter a permanent injunction as to all children in the General Class requiring Defendants to ensure that all children in the General Class are assigned DFPS caseworkers whose individual caseloads do not exceed the caseload standards established by the Child Welfare League of America and/or the Council on Accreditation;
e. Enter a permanent injunction as to all children in the Licensed Foster Care Subclass 30

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requiring that an assessment by qualified professionals be conducted to determine (i) the aggregate need of all children in the Subclass for additional placements that will provide the necessary number, geographic distribution, and array of placement options for all children in the Subclass; (ii) the time period during which these placements will be developed; and (iii) the steps necessary to implement these placement options;
f. Enter a permanent injunction as to all children in the Licensed Foster Care Subclass requiring that an assessment by qualified professionals be conducted to determine (i) the resources and processes necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to Defendants’ foster care placements; (ii) the time period during which these resources and processes will be developed and implemented; and (iii) the steps necessary to develop and implement these resources and processes;
g. Enter a permanent injunction as to all children in the Foster Group Home Subclass requiring that Defendants cease placing children in foster group homes until those foster group homes are operated in compliance with accepted professional standards;
h. Enter a permanent injunction as to all children in the Basic Care GRO Subclass requiring that Defendants cease placing children needing only basic child care services in non-emergency general residential operations;
i. Enter a permanent injunction as to all children in the Unverified Kinship Subclasss as follows:
i. Requiring that kinship homes be licensed or verified in accordance with the same standards used by Defendants to license or verify foster care placements;
ii. Requiring that kinship caregivers receive the same training for the care of children that is provided by Defendants to licensed and verified foster parents; and
iii. Requiring that children in kinship homes receive the same monthly foster care financial support that Defendants provide to children living with licensed or verified foster parents;
j. Appoint a Neutral Monitor to oversee the implementation of this order and to issue periodic reports to the Court.
k. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920, 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and
31

Case 2:11-cv-00084 Document 130 Filed in TXSD on 06/01/12 Page 34 of 37
l. Grant such other and further equitable relief as the Court deems just, necessary, and proper to protect Plaintiff Children from further harm by Defendants.

DATED: June 1, 2012

Respectfully submitted:
/s/ Marcia Robinson Lowry Marcia Robinson Lowry (admitted pro hac vice) Philip G. Barber (admitted pro hac vice) Stephen A. Dixon (admitted pro hac vice) Patrick Almonrode (admitted pro hac vice) Adam Dembrow (admitted pro hac vice) Melissa Cohen (admitted pro hac vice) Christina Wilson (admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 mlowry@childrensrights.org pbarber@childrensrights.org sdixon@childrensrights.org palmonrode@childrensrights.org adembrow@childrensrights.org mcohen@childrensrights.org cwilson@childrensrights.org
J.A. “Tony” Canales State Bar No. 03737000 S.D. Tex. Bar No. 1163 Hector Canales State Bar No. 24005961 S.D. Tex. Bar No. 29396 Patricia C. Bell State Bar No. 00793455 S.D. Tex. Bar No. 19506 CANALES & SIMONSON, P.C. 2601 Morgan Avenue Corpus Christi, Texas 78467-5624 Phone: (361) 883-0601 Facsimile: (361) 884-7023
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Case 2:11-cv-00084 Document 130 Filed in TXSD on 06/01/12 Page 35 of 37
tonycanales@canalessimonson.com hacanales@canalessimonson.com pmcanales@canalessimonson.com Attorneys-in-Charge
Barry F. McNeil State Bar No. 13829500 S.D. Tex. Bar No. 14914 R. Thaddeus Behrens State Bar No. 24029440 S.D. Tex. Bar No. 916025 David Dodds State Bar No. 00790595 S.D. Tex. Bar No. 35024 Amelia J. Cardenas State Bar No. 24056681 S.D. Tex. (admitted pro hac vice) HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Phone: (214) 651-5000 Facsimile: (214) 200-0535 barry.mcneil@haynesboone.com thad.behrens@haynesboone.com david.dodds@haynesboone.com amelia.cardenas@haynesboone.com
R. Paul Yetter State Bar No. 22154200 S.D. Tex. Bar No. 3639 Dori K. Goldman State Bar No. 24041274 S.D. Tex. Bar No. 591632 Christopher D. Porter State Bar No. 24070437 S.D. Tex. Bar No. 1052367 April L. Farris State Bar No. 24069702 S.D. Tex. Bar No. 1133331 YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 Facsimile: (713) 632-8002 pyetter@yettercoleman.com
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Case 2:11-cv-00084 Document 130 Filed in TXSD on 06/01/12 Page 36 of 37 dgoldman@yettercoleman.com cporter@yettercoleman.com afarris@yettercoleman.com Attorneys for Plaintiffs and the Proposed General Class and Subclasses
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Case 2:11-cv-00084 Document 130 Filed in TXSD on 06/01/12 Page 37 of 37
CERTIFICATE OF SERVICE I hereby certify that on this 1st day of June, 2012, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to all CM/ECF participants, and that I have mailed by United States Postal Service the pleading to all non-CM/ECF participants.
/s/ Marcia Robinson Lowry Marcia Robinson Lowry

 
 I

CaCsaes2e::1111-c-4v-007080984 DDooccuummeennt:t 010353117F9il8e3d9in8 TXPSaDgeo:n106/1D4a/1te2 FPileadg:e013/o2f3/22012

I , United States Court of Appeals

Fifth Circuit

I
1
I

UNITED STATES COURT OF APPEALS

Clerk U.s. District eourt Southern District of Texas
FILED
JUN 14 2012

FOR THE FIFTH CIRCUIT
No. 11-40789

F I LED
March 23, 2012
Lyle W. Cayce Clerk

f

David J. Bradley, Clerk of Court

D.C. Docket No. 2:11-CV-84

M.D., by next friend Sarah R. Stukenberg; D.l., by next friend Nancy G. Pofahl; Z.H., by next friend Carla B. Morrison; S.A., by next friend Javier Solis; A.M., by next friend Jennifer Talley; J.S., by next friend Anna J. Ricker; K.E., by next friend John W. Cliff, Jr.; D.P., by next friend Karen J. Langsley; T.C., by next friend Paul Swacina,

Plaintiffs - Appellees v.

RICK PERRY, in his official capacity as Governor of the State of Texas; THOMAS SUEHS, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; HOWARD BALDWIN, in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,

Defendants - Appellants

Appeal from the United States District Court for the Southern District of Texas, Corpus Christi

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and was argued by counsel.

It is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further
proceedings in accordance with the opinion of this Court.

CaCseas2e::111-1c-v4-007080984 DDooccuummeennt:t 10303511F79ile8d39in8 TXSPDagoen: 206/1D4/a1t2e FPileadg:e023/o2f32/2012
IT IS FURTHER ORDERED that appellees pay to appellants the costs on appeal to be taxed by the Clerk of this Court. ISSUED AS MANDATE:
A True Copy Attest
Clerk, U.S. Court of Appeals, Fifth Circuit By: _____________________
Deputy New Orleans, Louisiana

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
RICK PERRY, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-11-84 § § § §

ORDER

On this day came on to be considered Plaintiffs’ Motion for Class Certification

and Appointment of Class Counsel. (D.E. 15.) For the reasons stated herein, Plaintiffs’

Motion is hereby GRANTED.

I. Jurisdiction

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331 (federal question), as Plaintiffs bring claims under 42 U.S.C. § 1983. (D.E. 1 at 9.)

II. Factual and Procedural Background

Plaintiffs M.D., D.I., Z.H., S.A., A.M., J.S., K.E., D.P., and T.C. are minor

children in the custody of the Permanent Managing Conservatorship (“PMC”) of the

Texas Department of Family and Protective Services (“DFPS”). Through their next friends, Plaintiffs filed this action in this Court on March 29, 2011. (D.E. 1.)1 In essence,

Plaintiffs complain that children within PMC custody are subjected to a variety of harms

(such as repeated placements, abuse, and neglect) due to certain deficiencies in the Texas

foster care system. They claim that they “were brought into state custody because they

1 Plaintiffs’ next friends are Sarah R. Stukenberg (M.D.), Nancy G. Pofahl (D.I.), Carla B. Morrison (Z.H.), Javier E. Solis (S.A.), Jennifer Talley (A.M.), Anna J. Ricker (J.S.), John W. Cliff, Jr. (K.E.), Karen J. Langsley (D.P.), and Paul Swacina (T.C.). The Court approved these next friends at the initial pretrial conference held on May 26, 2011. (D.E. 48.)

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were abused and neglected at home, but then are left to languish for years, too many of them suffering further abuse and neglect while the state does little to seek and secure permanent homes for them.” Plaintiffs claim violations of substantive and procedural due process, along with certain rights of familial association, derived from the First, Ninth, and Fourteenth Amendments to the U.S. Constitution, and seek declaratory and injunctive relief on behalf of a putative class defined as “all children who are now and all those who will be in the Permanent Managing Conservatorship of the Texas Department of Family and Protective Services.” (D.E. 1 at 83-85; D.E. 15 at 7.)
Approximately 12,000 children are in Texas’s PMC. (D.E. 1.) In Texas, children who cannot remain safely at home are taken into DFPS custody and placed in the state’s Temporary Managing Conservatorship (“TMC”). While in TMC, the state has one year (which may be extended to 18 months) in which to return a child to his or her home, or to place him or her with a relative or adoptive family. Tex. Fam. Code § 263.401(a), (b). Those who remain in the system after the time period expires are placed in the state’s PMC, which is responsible for the children’s safety, permanency, and well-being. The details of each Plaintiff Child’s experience in PMC are discussed in the Complaint and in Plaintiffs’ Motion, as well as the voluminous exhibits that Defendants have submitted with their response. (D.E. 15 at 9-12; D.E. 30, Exh. A-I.)
On April 5, 2011, Plaintiffs filed their Motion for Class Certification and Appointment of Class Counsel. (D.E. 15.) Defendants responded on May 16, 2011, and Plaintiffs submitted a Reply on May 24, 2011. (D.E. 30; D.E. 44.)2
2 Plaintiffs’ Motion for Leave to File Reply is GRANTED. (D.E. 44.)
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III. Discussion A. Background Federal class actions are governed by Federal Rule of Civil Procedure 23. The
Supreme Court requires district courts to conduct a “rigorous analysis of Rule 23 prerequisites,” taking a “close look” at the parties’ claims and evidence in making [a] Rule 23 decision.” Unger v. Amedisys Inc., 401 F.3d 316, 320–21 (5th Cir. 2005) (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)). It is well established that “the party seeking certification . . . bears the burden of establishing that the requirements of Rule 23 have been met.” Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 301 (5th Cir. 2003) (citing O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737–38 (5th Cir. 2003)). Ultimately, “[t]he decision to certify is within the broad discretion of the court, but that discretion must be exercised within the framework of Rule 23.” Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996); see Benavides v. Chicago Title Ins. Co., __ F.3d __, 2011 WL 1107009, at *3 (5th Cir. Mar. 23, 2011).
Rule 23(a) provides four prerequisites to a class action: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 606–08 & nn. 8, 9, 11, 13, (1997); see Casa Orlando Apts., Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185, 190 (5th Cir. 2010). In addition, a class may be certified only if it fits within one of the three categories outlined in Rule 23(b). Casa Orlando Apts., Ltd., 624 F.3d at 190. Relevant here, Rule 23(b)(2) provides,
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“[a] class action may be maintained if Rule 23(a) is satisfied and if: . . . (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
Under Rule 23(c)(1)(A), “[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Fed. R. Civ. P. 23(c)(1)(A). The rules also provide that “[a]n order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).” Fed. R. Civ. P. 23(c)(1)(B). Notice to the class may be issued after certification under Rule 23(b)(2). Fed. R. Civ. P. 23(c)(2)(A).
B. Application Plaintiffs claim that they satisfy the four requirements of Rule 23(a), and fit easily within Rule 23(b)(2). Defendants disagree. In essence, they contend that because each child is unique, and has a unique experience in the DFPS system, the proposed class cannot possibly satisfy the typicality or commonality requirements of Rule 23(a). In this regard, they also contend that neither the named Plaintiffs nor their next friends will adequately represent the interests of the proposed class, as they have different goals and interests than the proposed class members and the next friends have little incentive to direct the litigation in a way that advances the best interests of the proposed class members as a whole (as opposed to their own individual interests). Finally, Defendants argue that Plaintiffs have failed to show that they satisfy Rule 23(b)(2), because the
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requested class-wide injunctive relief would not be appropriate in light of the insufficiently cohesive class. (D.E. 30.)
The Court first considers Plaintiffs’ proposed class definition, and then evaluates each factor in turn.
1. Proposed Class Definition Before considering the factors under Rule 23(a), a court must evaluate the proposed class definition. Plaintiffs proposed class definition is as follows: “All children who are now and all those who will be in the Permanent Managing Conservatorship of the Texas Department of Family and Protective Services.” (D.E. 15 at 1.) As the Fifth Circuit has explained, “the class sought to be represented must be adequately defined and clearly ascertainable.” DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); see John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The existence of an ascertainable class of persons to be represented by the proposed class representatives is an implied prerequisite of Federal Rule of Civil Procedure 23.”) (citing DeBremaecker). A “precise class definition is necessary to identify properly those entitled to relief, those bound by the judgment, and those entitled to notice.” In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004). Defendants argue that the “defined class is overly broad because it includes members whose underlying circumstances do not relate to the claims pleaded by the class representatives, and the broadly defined class includes members who lack standing to bring the claims alleged. A review of the injunctive relief requested by Plaintiffs reveals that it is meant to redress alleged injuries suffered by only certain members of the proposed class, such as those children who have been in substitute care for a lengthy time
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and/or have had numerous placements outside the familial home.” (D.E. 30 at 17.) The proposed class would include many members whose circumstances differ greatly from those of the class representatives, in terms of placements or supervision. Because of this diversity, Defendants argue, Plaintiffs cannot demonstrate that all of the members of the broadly defined class have standing to bring the claims at issue in this action. (D.E. 30 at 18.)
The Court finds that the proposed class definition is sufficient. While it is beyond dispute that each child is unique, and no two children will have the same experience while in the PMC, this does not preclude Plaintiffs’ class definition. Defendants contend that Plaintiffs’ requests for injunctive relief demonstrate that the suit is meant “to redress alleged injuries suffered by only certain members of the proposed class.” (D.E. 30 at 17.) Not so. Most of the injunctive relief focuses on reform within the DFPS system, not dependent upon any particular child. For example, Plaintiffs request a permanent injunction “[r]equiring Defendants to ensure that all children in the plaintiff class are assigned DFPS workers whose overall caseloads do not exceed the caseload standards established by the Child Welfare League of America and the Council on Accreditation,” or “[r]equiring that all substitute care placements be licensed or verified according to state law,” or “[p]rohibiting Defendants from placing Plaintiff Children in foster homes, foster group homes, emergency shelters, group residential operations, or residential treatment centers that do not meet the standards for such homes or facilities set by the Child Welfare League of America and the Council on Accreditation,” or “[r]equiring Defendants to ensure that their practices and procedures for monitoring and oversight of privately operated placement facilities protect the safety of Plaintiff Children.” (D.E. 1 at
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86.) These requests for relief focus upon improvements to the system as a whole, which would have an impact on all class members, albeit in different ways.
While certain types of relief, such as those requesting reforms for the way in which Defendants deal with “all class members who have been in the PMC of the state for more than two years,” or “all class members who have had more than four placements during their most recent placement episode,” (D.E. 1 at 86) would appear to be targeted at a more specific group of class members, the mere fact that some injunctive relief may not immediately apply to all class members is not fatal to the class definition. Certainly, the majority of injunctive relief would seek to improve the system as a whole, to the benefit of all class members. Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 63 (3d Cir. 1994) (“While it is true that not all of the orders issued will immediately benefit every plaintiff, every plaintiff will benefit from relief designed to assure [Philadelphia Department of Human Services (“DHS”)] compliance with the applicable standards.”).). Moreover, the mere fact that certain future members of the putative class are not yet ascertainable does not cut against class certification. Rather, “the fact that the class includes unknown, unnamed future members also weighs in favor of certification.” Pederson v. Louisiana State Univ., 213 F.3d 858, 868, n.11 (5th Cir. 2000).
While courts may find a class definition overly broad where the putative class “contains members lacking Article III standing,” or where the “class encompasse[s] persons who have not suffered any injury,” Allen v. Holiday Universal, 249 F.R.D. 166, 171 (E.D. Pa. 2008), the Court does not find this concern present here. The class action allegations, as well as the relief sought, relate to the PMC system as a whole. Based upon the allegations, all class members are injured simply due to their presence in that system.
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Certainly each class member may be injured in a different way (and some more substantially than others), but all have an injury. Class definitions similar to that proposed here have been approved by other courts. See Dwayne B. v. Grandholm, No. 06-13548 (E.D. Mich. Feb. 15, 2007) (approving class defined as “all children who are now or will be in the foster care custody of Michigan’s Department of Human Services in in-home or out-of-home placements”) (available at D.E. 15-2); Olivia Y. v. Barbour, No. 3:04-cv-251LN (S.D. Miss. Mar. 11, 2005) (approving class defined as “all children who are or will be in the legal and/or physical custody of [the Mississippi Division of Family and Children’s Services (“DFCS”)].”).
Having determined that Plaintiffs’ proposed class definition is proper, the Court next turns to the factors under Rule 23(a).
2. Rule 23(a) Factors a. Numerosity (Rule 23(a)(1))
The numerosity factor requires Plaintiffs to demonstrate that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “To satisfy the numerosity prong, ‘a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.’” James v. City of Dallas, Tex., 254 F.3d 551, 570 (5th Cir. 2001). There is no doubt that a class of approximately 12,000 children in the Texas PMC satisfies the numerosity element. See, e.g., James, 254 F.3d at 570 (finding 100 potential class members to satisfy the numerosity requirement); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624-25 (5th Cir. 1999) (“[T]he size of the class in this case – 100 to 150 members – is within the range that generally satisfies the numerosity requirement.”); Zeidman v. J. Ray
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McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981) (“[C]lasses with as few as twenty-five or thirty members have been certified by some courts.”). Moreover, it is also clear that joinder is “impracticable,” because the number of Plaintiff children change over time, as new children enter the PMC and others leave. (D.E. 15 at 16.) Defendants concede this element. (D.E. 30 at 18.) The numerosity element is easily satisfied.
b. Commonality (Rule 23(a)(2)) The commonality factor requires the Plaintiffs to demonstrate that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “The test for commonality is not demanding.” James, 254 F.3d at 570 (citing Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999); Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993)). As the Fifth Circuit has explained, “[a]ll that is required for each class is that there is one common question of law or fact: ‘The interests and claims of the various plaintiffs need not be identical. Rather, the commonality test is met when there is ‘at least one issue whose resolution will affect all or a significant number of the putative class members.’” 254 F.3d at 570 (emphasis added); see Doiron v. Conseco Health Ins. Co., 279 Fed. Appx. 313, 316 (5th Cir. 2008) (citing James). That “some of the plaintiffs may have different claims, or claims that may require some individualized analysis, is not fatal to commonality.” James, 254 F.3d at 570. Plaintiffs argue that the proposed class meets the commonality requirement “because Named Plaintiffs challenge system-wide failures in the way that DFPS treats children in the state’s PMC, and they do not seek redress for individual grievances.” (D.E. 15 at 17.) They state that DFPS’s failures raise numerous questions of fact
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common to all class members, mainly related to Defendants’ management of the state system. (D.E. 15 at 18-19.) They also state that there are a number of questions of law common to the entire Class, such as whether Defendants’ actions violate Plaintiff Children’s procedural and substantive due process rights, and their right to family association. (D.E. 15 at 19.) Defendants respond that there “are no common questions of fact because each child’s needs, entry into PMC, particular placements by DFPS, and movement within the system differ dramatically,” and Plaintiffs cannot “advance a discrete question of law.” (D.E. 30 at 19.)
Defendants argue at length that each child’s placement “is specifically tailored to meet the child’s needs, behavior, risks, age, placement history, and permanency goal,” and placements change depending on circumstances. For example, each named Plaintiff was removed from his or her home for different reasons (D.E. 30 at 20-22), the named Plaintiffs have different permanency goals, parental rights to the children have not all been terminated (D.E. 30 at 22-23), the named Plaintiffs have different placement histories (D.E. 30 at 23-25), different medical diagnoses and behavioral problems (D.E. 30 at 25-26) and have different levels of DFPS services (D.E. 30 at 26). Due to these unique circumstances, Defendants argue that commonality is lacking, and assuming it to exist would deny children who come before the courts the individualized review to which they are entitled. (D.E. 30 at 27.)
It should come as no surprise that the individual circumstances of each named Plaintiff (or each putative class member) is unique. No two children or situations are exactly alike. Plaintiffs’ common questions of fact, however, relate not to the individual story of each child, but rather the alleged shortcomings of the DFPS system. While it
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may be true that each Plaintiff would experience those shortcomings in a different way, depending on their own particular backgrounds, these alleged deficiencies would exist for all those in the system. All class members are within the same system and subject to the same alleged deficiencies in that system. To require more for the “common question” analysis would run afoul of the Fifth Circuit’s dictate that “[t]he test for commonality is not demanding,” and that merely having “different claims, or claims that may require some individualized analysis, is not fatal to commonality.” James, 254 F.3d at 570. The common questions of fact at issue here include (1) whether Defendants failed to maintain a caseworker staff of sufficient size and capacity to perform properly, (2) whether Defendants failed to provide sufficient numbers and types of foster care placements necessary to the Plaintiffs’ needs, (3) whether Defendants provided sufficient monitoring and oversight to prevent abuse while in state custody, and (4) whether Defendants’ actions in general caused harm or risk of harm to Plaintiffs.
To the extent that factual distinctions between Plaintiffs exist, the Supreme Court has recognized that such factual differences do not prevent class action certification when “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue.” Califano v. Yamasaki, 442 U.S. 682, 701 (1979). Relying on Califano, the Third Circuit in Baby Neal for and by Kanter v. Casey, rejected the same argument Defendants now advance here. The court held, “[t]o the extent that the defendants assert that commonality requirements cannot be met in this case because of the individualized circumstances of the children, their argument has been squarely rejected by the Supreme Court . . . .” 43 F.3d 48, 57 (3d Cir. 1994). The court further explained, “class members can assert . . . a single common complaint even if they have
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not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice.” Id. at 56. Moreover, it noted that “[Rule 23] (b)(2) classes have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.” Id. at 57. The Second and Tenth Circuits have come to similar conclusions. See Marisol A. v. Guiliani, 126 F.3d 372, 377 (2d Cir. 1997) (affirming class certification and stating, “[t]he plaintiffs allege that their injuries derive from a unitary course of conduct by a single system, and the district court agreed. At this stage of the litigation, we see no basis for finding that the district court abused its discretion in this regard.”); D.G. ex rel Stricklin v. Devaughn, 594 F.3d 1188, 1196 (10th Cir. 2010) (see further discussion below). District courts have likewise rejected arguments that individualized experiences in state foster care custody preclude a finding of commonality. See, e.g., Olivia Y., No. 3:04-CV-251LN, at 6 (“[E]ven though each plaintiff and each proposed class member may not yet have suffered the same type or degree of harm (though some surely have), because it appears that defendants’ alleged acts and omissions pose a significant risk of similar harm to all (or at least the requisite ‘significant number’ of) children in DHS custody, the court concludes that the requirements of commonality and typicality are satisfied.”) (see D.E. 15-1); Dwayne B., No. 06-13548, at 5-7 (“A few of the questions of fact common to all Class members include whether Defendants failed to provide Plaintiff Children with (1) safe, appropriate and stable foster care placements as required by law and reasonable professional standards, (2) services necessary to keep them safe and
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properly cared for . . . (3) timely and appropriate services necessary to ensure that they are either safety reunited with their families or promptly freed for adoption . . . .”).
The Court recognizes that the Tenth Circuit in J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1989) came to a different conclusion. In that case, the panel found commonality lacking, and explained, “[w]e refuse to read an allegation of systematic failures as a moniker for meeting the class action requirements. . . . We refuse to hold, as a matter of law, that any allegation of a systematic violation of various laws automatically meets Rule 23(a)(2).”; Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456 (D. Neb. 2007) (citing J.B.). Nevertheless, as noted above, another panel of the Tenth Circuit, in D.G., sided with the Second and Third Circuits in finding commonality. There, “[n]ine Oklahoma foster children, acting through their next friends, filed suit under 42 U.S.C. § 1983 against members of the Oklahoma Commission for Human Services and the Director of the Oklahoma Department of Human Services [OKDHS] in their official capacities, seeking declaratory and injunctive relief.” 594 F.3d at 1192. The “Named Plaintiffs sought certification of a class of all children who are or will be in the legal custody of OKDHS due to a report or suspicion of abuse or neglect or who are or will be adjudicated deprived due to abuse or neglect - approximately 10,000 children.” Id. The Court found commonality satisfied, explaining:
Named Plaintiffs presented more than conclusory statements that OKDHS's agency-wide monitoring policies and practices, or lack thereof, create a risk of harm shared by the entire class. All class members, by virtue of being in OKDHS's foster care, are subject to the purportedly faulty monitoring policies of OKDHS, regardless of their individual differences; therefore, all members of the class are allegedly exposed to the same unreasonable risk of harm as a result of Defendants' unlawful practices. Though each class member may not have actually suffered abuse, neglect, or the risk of such harm, Defendants' conduct
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allegedly poses a risk of impermissible harm to all children in OKDHS custody.
Id. at 1196 (emphasis added). Notably, the D.G. court distinguished the earlier J.B.
decision, explaining, “[t]he named plaintiffs in J.B. alleged multiple state agencies
violated their rights; whereas, here Named Plaintiffs only allege one state agency and its
policies violated their rights. Second, the class of plaintiffs in J.B. was far broader. The
proposed class consisted of all children, custodial and non-custodial (those at risk of
being taken into state custody), who had any form of developmental or mental disability.”
Id. at 1197. The case before the Court is far closer to D.G. than it is to J.B.3
In light of the decisions of three Circuit Courts of Appeal (in Baby Neal, Marisol,
and D.G.), each of which have found commonality in cases such as the one before the
Court, and the lack of any controlling precedent to the contrary in this Circuit, the Court
concludes that there are sufficient common questions of fact to satisfy Rule 23(a)(2).4
While Plaintiffs do not also need common questions of law to satisfy the
commonality requirement, such common questions exist. Defendants, again relying upon
the Tenth Circuit’s decision in J.B., argue that no common legal questions exist, and that
Plaintiffs have succeeded only in attempting to “broadly conflate a variety of claims to
establish commonality via an allegation of systemic failures.” (D.E. 30 at 31-32 (citing
3 While the D.G. class definition limited class members to those in foster custody “due to a report or suspicion of abuse or neglect,” and indeed Plaintiffs here state that they “are prepared to stipulate to a class definition specifying that these children entered DFPS custody due to reports of abuse or neglect,” (D.E. 44-2 at 9 n.2) the Court does not find this limitation necessary. Regardless of how a child enters DFPS custody, he or she is subject to the same system, with the same alleged deficiencies that are the subject matter of this lawsuit. 4 The leading decision in this area, Baby Neal, has in fact been cited favorably by several courts in this Circuit, including this one. In re Lease Oil Antitrust Litig., 186 F.R.D. 403, 421 (S.D. Tex. 1999) (Jack, J.); In re Enron Corp. Sec., Derivative & ERISA Litig., 2004 WL 405886, at *25 (S.D. Tex. Feb. 25, 2004); City of San Antonio v. Hotels.com, 2008 WL 2486043, at *6 (“Even relatively pronounced factual differences between the individual claims will not defeat typicality as long as the claims are woven from the same legal fabric and arise from the same event, practice or course of conduct.”). The J.B. decision, in contrast, does not appear to have been cited by any court within this Circuit, and it has received little attention anywhere outside the Tenth Circuit.
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J.B.).) In the alternative, they argue that any common legal issues would be dependent on individual factual determinations, which would be different for each class member. (D.E. 30 at 32.)
The Court rejects Defendants’ arguments. As the Third Circuit explained in Baby Neal, “[i]nsofar as the children challenge the scheme for the provision of child welfare services, their claims share a common legal basis.” Baby Neal, 43 F.3d at 61. Further, “[t]he differing degree and nature of the plaintiffs’ injuries also do not preclude a finding of commonality. . . . [T]he putative class members in this case share the common legal claim that DHS’s systemic deficiencies result in widespread violations of their statutory and constitutional rights, irrespective of their varying individual needs and complaints. . . . [T]he children here challenge DHS’s conduct, which is generally applicable to them. Also, . . . it does not matter here that the children suffer in varying ways from the DHS's violation of its statutory mandates.” 43 F.3d at 61 (citing Califano). District courts have also found common questions of law in analogous cases. See Olivia Y., No. 3:04-CV251LN at 6 (“[T]he court . . . is persuaded that plaintiffs have sufficiently identified issues common to all or most of the proposed class members. These include . . . the legal questions whether defendants’ actions and inactions have violated the substantive due process rights of children in DHS custody to be safe from harm while in state custody . . .”); Dwayne B., No. 06-13548 at 6 (“A few of the questions of law common to all Class members include whether Defendants’ actions and inactions violate Plaintiff Children’s (1) right to be free from harm as guarded under the Substantive Due Process Clause of the Fourteenth Amendment, . . . (3) rights guaranteed under the First, Ninth, and Fourteenth Amendments, (4) rights to procedural due process . . . .”). The Court is
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persuaded by the reasoning in Baby Neal and the district court opinions cited above. It therefore finds common questions of law, based upon Plaintiffs’ claims of constitutional violations, namely substantive and procedural due process, along with associational rights.
In sum, the Court concludes that there exist common questions of both law and fact, necessary to satisfy Rule 23(a)(2).
c. Typicality (Rule 23(a)(3)) Under Rule 23(a)(3), the moving party must demonstrate that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Like commonality, the test for typicality is not demanding. It focuses on the similarity between the named plaintiffs’ legal and remedial theories and the theories of those whom they purport to represent. Typicality does not require a complete identity of claims. Rather, the critical inquiry is whether the class representative’s claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.” James, 254 F.3d at 571 (citations omitted; emphasis added). The Supreme Court has explained, “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982).
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As with commonality, Plaintiffs argue that they “have had similar harmful experiences while in the state’s custody,” which are “a direct result of the systemic failings alleged in the Complaint.” (D.E. 15 at 21.) Plaintiff lists examples of this harm, such as instability in placements, unnecessary placements in congregate care, abuse, deprivation of necessary mental health or educational services, and separation from siblings. (D.E. 15 at 22-23.) All of the claims arise from the same factual and legal foundations as do the claims of other class members, namely “the alleged failures of the state’s foster care system,” and liability for these failures are premised on the same legal grounds. (D.E. 15 at 23.) Defendants’ argument in response mirrors that made with respect to commonality, focusing on the unique circumstances of each child. For example, Defendants note that while named Plaintiffs complain about placement in congregate care, numerous placements while in PMC, or abuse, this is by no means typical. The same is true of unnecessary hospitalizations in psychiatric facilities, or separation from siblings while in custody. (D.E. 30 at 32-35.) Thus, “the experiences of the named Plaintiffs are not typical of the experiences of the majority of other children in the PMC,” Defendants argue. (D.E. 30 at 35.)
After considering the arguments, the Court here finds that typicality is satisfied, essentially for the same reasons as stated with respect to commonality. Plaintiff’s claims all arise from the same system and share the same legal theory, even if their individual injuries may differ. As the Third Circuit explained in Baby Neal, “cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims. Actions requesting declaratory and injunctive relief
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to remedy conduct directed at the class clearly fit this mold.” 43 F.3d at 58 (citations omitted; emphasis added); see In re Lease Oil Antitrust Litig., 186 F.R.D. 403, 421 (S.D. Tex. 1999) (Jack, J.) (citing Baby Neal). Further, “[f]actual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory. . . . Indeed, even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories.” 43 F.3d at 58. (emphasis added). Therefore, “[w]here an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.” Id.; see, e.g., In re Enron Corp. Sec., Derivative & ERISA Litig., 2004 WL 405886, at *25 (S.D. Tex. Feb. 25, 2004) (citing Baby Neal); City of San Antonio v. Hotels.com, 2008 WL 2486043, at *6 (“Even relatively pronounced factual differences between the individual claims will not defeat typicality as long as the claims are woven from the same legal fabric and arise from the same event, practice or course of conduct.”) (citing Baby Neal). Likewise, the Tenth Circuit in D.G. reasoned, “[t]he harm and threat of harm suffered by the Named Plaintiffs as a result of OKDHS’s allegedly deficient monitoring practices is typical of the harm and threat of harm suffered by all children in the class because all foster children are subject to OKDHS’s challenged, agency-wide monitoring policies. Additionally, Named Plaintiffs allege OKDHS’s monitoring policies violate their substantive due process rights to be free from harm while in state custody, the same legal theory that underlies class members’ corresponding claims.” D.G., 594 F.3d at 1199. District courts have similarly rejected arguments against typicality that
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have focused on the varying facts of each individual child’s experiences in foster care. See Connor B. ex rel. Vigurs v. Patrick, __ F.R.D. __, 2011 WL 693223, at *7 (D. Mass. 2011) (“[T]he fact that the harms alleged by named Plaintiffs may differ in some respects from those suffered by unnamed Plaintiffs does not undermine typicality”); Dwayne B., No. 06-13548 at 8 (D.E. 15-2) (finding typicality and explaining, “Defendants assert that ‘the vast majority of the putative class receives appropriate services, treatment, and placement.’ This argument ignores that Plaintiff Children’s common theme of attacking DHS’s systemwide failure to comply with its legal mandates is equally central to the claims of the named plaintiffs as it is to the claims of the absent class members.”); Olivia Y., 3:04-CV-251LN at 7 (D.E. 15-1) (finding typicality satisfied “because it appears that defendants’ alleged acts and omissions pose a significant risk of similar harm to all (or at least the requisite ‘significant number’ of) children in DHS custody”).
Here, Plaintiffs allege to have had harmful experiences while in PMC custody, due to various systemic failures. While the specific nature of these harmful experiences may vary, each experience is allegedly due to deficiencies in the DFPS system. For example, Plaintiffs M.D., S.A., J.S., K.E., D.P. and T.C. have been moved to multiple placements and have been placed hundreds of miles from their home communities. (D.E. 1 ¶¶ 23, 57, 59, 61, 89, 95-96, 100, 104, 108, 111, 122, 125, 128-31, 134.) Several have also been placed in so-called congregate care, which should normally only be a placement of last resort. (D.E. 1 ¶¶ 24-25, 27, 47-48, 51-53, 59-62, 75-76, 83-84, 94-96, 109, 11, 117-118, 125, 128-133.) Abuse in state custody is also reported. (D.E. 1 ¶¶ 38, 113.) Z.H., A.M., and D.P. have been placed far away from their respective siblings, in violation of state policy. (D.E. 1 ¶¶ 46, 70, 107.) As a final example, several Plaintiffs,
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including S.A., A.M., K.E., D.P. and T.C. have remained in state custody for at least seven years, and are likely to leave only by aging out. (D.E. 1 ¶¶ 57, 68, 93, 104, 125.)
In sum, the factual differences between the named Plaintiffs or other proposed class members are not sufficient to demonstrate a lack of typicality. As Plaintiffs themselves put it, “their claims arise from the same factual and legal foundations as do the claims of other members of the putative class: Defendants’ operation of a dysfunctional child welfare system that causes unconstitutional harm to the children in its care.” (D.E. 44-2 at 18.) The Court concludes that Plaintiffs have satisfied Rule 23(a)(3)’s typicality requirement.
d. Adequacy (Rule 23(a)(4)) Plaintiffs must demonstrate, pursuant to Rule 23(a)(4), that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Fifth Circuit has explained, “Rule 23(a)’s adequacy requirement encompasses class representatives, their counsel, and the relationship between the two. We must consider “[1] the zeal and competence of the representative[s’] counsel and . . . [2] the willingness and ability of the representative[s] to take an active role in and control the litigation and to protect the interests of absentees[.]” Stirman v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002) (citations omitted); see also Feder v. Electronic Data Systems Corp., 429 F.3d 125, 130 (5th Cir. 2005). Importantly, “[d]ifferences between named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts between the named plaintiffs’ interests and the class members’ interests.” James, 254 F.3d at 571 (emphasis added).
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Plaintiffs contend that the Named Plaintiffs’ proposed Next Friends are dedicated to the Named Plaintiffs’ best interests, are familiar with the litigation, and are able to assist in the case. Also, there is no conflict of interest between the Named Plaintiffs and the other Class members, as the Named Plaintiffs only seek declaratory and injunctive relief to correct flaws in the DFPS PMC system. The relief they seek would “benefit all members of the proposed class,” and there is no foreseeable conflict between class members. (D.E. 15 at 24.) Plaintiffs also argue that they are represented by counsel who possess “extensive experience in complex litigation, including class actions and civil rights litigations.” They outline the experience of law firms Canales & Simonson, P.C., Haynes & Boone, LLP, Yetter Coleman, LLP, and attorneys for Children’s Rights, a nonprofit organization “with extensive experience in complex class action litigation involving child welfare systems.” In this regard, they note that Children’s Rights attorneys “have served as class counsel on much of the major child welfare litigation in the United States.” (D.E. 15 at 25.) They also pledge that counsel has sufficient resources to “thoroughly and expeditiously bring this action.” (D.E. 15 at 25.)
Defendants concede that class counsel is competent (D.E. 30 at 35 n.14), but argue that the adequacy requirement is not met because “(1) the Plaintiffs cannot adequately represent the class because their interests and claims are significantly different from those of the class and (2) the next friends have neither the incentive nor the ability to direct this litigation.” (D.E. 30 at 35.) The Court takes each objection in turn.
As to Defendants’ first objection (which is essentially no different from that raised with respect to commonality and typicality), the Court does not find that any speculative conflicts between class members renders the named Plaintiffs inadequate
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class representatives. Plaintiffs seek systemic changes and improvements in the DFPS system, which would aid all children. All Plaintiff Children have an interest in a child welfare system that meets children’s needs, even if those needs may vary. While the improvements will certainly mean different things to different children in the system, the Court sees no direct conflict in light of the fact that the named Plaintiffs seek to improve the system as a whole. Similar arguments as to adequacy have been rejected in the past. In Dwayne B., the court explained that the plaintiffs satisfied the adequacy requirement because their “interests do not conflict with those of absent class members,” as “[t]hey seek broad declaratory and injunctive relief addressing systematic problems in a unitary executive agency that will provide all Class members with the protection, care, treatment, and services to which all are equally entitled under the Constitution and federal law. All Class members share the same federal statutory and constitutional rights and a common interest in a child welfare system that meets its legal obligations to keep them safe from harm. Appropriate remedial relief will ensure that Defendants meet their legal obligations to all Class members in all counties of the State, irrespective of relative costs.” Dwayne B., No. 06-13548 at 10; see also, Marisol A., 126 F.3d at 378 (affirming finding of adequacy and stating, “Plaintiffs seek broad based relief which would require the child welfare system to dramatically improve the quality of all of its services, including proper case management. In this regard, the interests of the class members are identical.”); Patrick, __ F.R.D. __, 2011 WL 693223, at *8 (Class members “each have alleged significant harms, often taking multiple forms, all of which are alleged to be attributable to failures within [the Massachusetts Department of Children and Families]. Thus, because . . . named Plaintiffs’ interests are entirely consistent with those of the
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class, Plaintiffs meet the requirements of Rule 23(a)(4).”)). The court concludes that Defendants’ concerns as to a conflict of interest do not warrant a finding of inadequacy.
Defendants’ second objection is that Plaintiffs’ proposed next friends have “irreconcilable conflicts” that prevent them from representing the interests of the class, in light of the fact that they acquiesced to the placements now at issue when representing the children as ad litems in the state court proceedings. (D.E. 30 at 36-37.) Defendants also argue that the “conflict between [the next friends’] appointed role in the state court and in this law suit renders the ‘next friends’ entirely inadequate to represent the class.” (D.E. 30 at 37.) This Court has already concluded that the proposed next friends can adequately represent the minors on whose behalf they have filed suit. (D.E. 48.) The Court finds that any concerns as to conflict of interest between next friends and Named Plaintiffs, or with class members is wholly speculative and unsubstantiated. Their prior involvement in the respective child’s case does not render them inadequate next friends, but rather just the opposite. These individuals advocated on behalf of their clients, and there is no indication to the contrary. Ultimately, Defendants are responsible for the alleged conditions in the system, and the next friends do not have a conflict of interest merely because they had to operate in that system.
The Court also finds that counsel has the necessary “zeal and competence,” to adequately protect class interests. The firm resumes of all counsel in this matter demonstrate their prior involvement in class action litigation, and in many cases, particular experience with child advocacy. (D.E. 15-3 (Canales & Simonson, P.C. firm resume); 15-4 (Hayes & Boone firm resume); 15-5 (Yetter & Coleman firm resume; 15-6 (Marcia Robinson Lowry Declaration).) Notably, Marcia Robinson Lowry, Executive
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Director of Children’s Rights, states in her declaration, “[f]or more than 35 years, I have been litigating and directing the litigation of class action child welfare reform cases alleging claims similar to those alleged by Plaintiff Children in the present action. Other Children’s Rights attorneys assigned to this case also have years of experience with Children’s Rights prosecuting similar cases in other jurisdictions.” (D.E. 15-6 at 2.) She details other cases in which Children’s Rights attorneys were involved, and notes that Children’s Rights attorneys “have engaged in a two-year long, in-depth investigation of the child welfare system in Texas.” (D.E. 15-6 at 3.) As noted above, Defendants concede that class counsel is competent. (D.E. 30 at 35 n.14.)
In light of the foregoing, the Court finds that the adequacy requirements of Rule 23(a)(4) are satisfied.
3. Rule 23(b)(2) Requirements In addition to satisfying the requirements of Rule 23(a), a class action must also satisfy one of the categories of Rule 23(b). Relevant here, Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). As compared to Rule 23(b)(3), Rule 23(b)(2) “was intended primarily to facilitate civil rights class actions, where the class representatives typically sought broad injunctive or declaratory relief against discriminatory practices.” Penson v. Terminal Transport Co., Inc., 634 F.2d 989, 993 (5th Cir. 1981). The Fifth Circuit has explained that Rule 23(b)(2) “seeks to redress what are really group as opposed to individual injuries. The uniformity of the injury across the class is what renders the notice and opt-out provisions
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of (b)(3) unnecessary. . . . A Rule 23(b)(2) inquiry requires considering two factors: 1)
whether the defendant’s behavior is generally applicable to the class as a whole, and 2)
whether injunctive relief predominates over monetary relief.” Casa Orlando Apts., Ltd.,
624 F.3d at 198; Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 n. 22 (5th Cir. 2000).
“To qualify for class-wide injunctive relief, class members must have been harmed in
essentially the same way . . . . This qualification differs from a predominance of common
issues that Rule 23(b)(3) requires. Instead of requiring common issues, 23(b)(2) requires
common behavior by the defendant towards the class.” Casa Orlando Apts., Ltd., 624
F.3d at 198. Importantly, the Fifth Circuit has also noted:
Actions for class-wide injunctive or declaratory relief are intended for (b)(2) certification precisely because they involve uniform group remedies. Such relief may often be awarded without requiring a specific or time-consuming inquiry into the varying circumstances and merits of each class member's individual case. When it does, the relatively complex calculations typically required in class actions for money damages are unnecessary. For these reasons, proposed (b)(2) classes need not withstand a court's independent probe into the superiority of the class action over other available methods of adjudication or the degree to which common issues predominate over those affecting only individual class members, as (b)(3) classes must.
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 414 (5th Cir. 1998) (emphasis added).
As one court has stated, “[t]he requirement of 23(b)(2) is almost automatically fulfilled
in actions where the relief sought is primarily injunctive.” San Antonio Hispanic Police
Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 443, 444 (W.D. Tex. 1999) (citing
Baby Neal, 43 F.3d at 58) (emphasis added).
Similar to Defendants’ other arguments with respect to Rule 23(a), Defendants
essentially contend that class certification under Rule 23(b)(2) should be denied because
the class is not sufficiently cohesive, and the propriety of any relief would depend on the
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unique circumstances of the children at issue. (D.E. 30 at 37.) Once again, the Court is
not persuaded by Defendants’ position. As the Baby Neal court has explained, “[w]hat is
important is that the relief sought by the named plaintiffs should benefit the entire class.
The general applicability requirement of (b)(2) also aims to prevent prejudice to
absentees by mandating that the putative class demonstrate that the interests of the class
members are so like those of the individual representatives that injustice will not result
from their being bound by such judgment in the subsequent application of principles of
res judicata. But injunctive actions, seeking to define the relationship between the
defendant and the world at large, will usually satisfy this requirement.” 43 F.3d at 59.
Thus, when faced with arguments similar to those advanced by Defendants here, the
court ultimately found that the district court abused its discretion in denying certification
under Rule 23(b)(2). The court explained:
Plaintiffs have alleged that systemic failure causes the DHS to violate various mandates under federal statutory and constitutional provisions. Because the children in the system are comparably subject to the injuries caused by this systemic failure, even if the extent of their individual injuries may be affected by their own individual circumstances, the challenge to the system constitutes a legal claim applicable to the class as a whole. An order forcing the DHS to comply with their statutory and constitutional mandates would constitute relief generally applicable to the entire putative class. Indeed, the violations alleged here are precisely the kinds targeted by Rule 23(b)(2). . . .
The fact that the plaintiffs in this case seek only injunctive and declaratory relief, not individual damages, further enhances the appropriateness of the class treatment. Clearly, this action aims to define the relationship of the defendants to the universe of children with whose care the defendants are charged. Plaintiffs simply ask the district court to declare the DHS’s current provision of child welfare services to the plaintiffs to be violative of the cited statutory and constitutional provisions and to order DHS to implement a system that would enable it to comply with its legal mandates in the provision of these services. Furthermore, all of the class members will benefit from relief which forces the defendant to provide, in the
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manner required by law, the services to which class members either are currently or at some future point will become entitled. 43 F.3d at 63-64 (emphasis added). The Tenth Circuit in D.G. arrived at a similar conclusion. That court explained, “[s]o long as OKDHS's challenged practices are based on grounds that apply generally to the class, class certification under Rule 23(b)(2) is proper even if at the class certification stage it is conceivable some class members have not been actually abused, neglected, or exposed to a risk of harm. Here the ‘grounds’ that have general application to the class are that all class members have been placed in OKDHS's foster care program and, as such, caseworkers monitor all class members in a system that allegedly fails to ensure they do not carry caseloads so demanding that they cannot monitor class members adequately.” D.G., 594 F.3d at 1200; see also Dwayne B., No. 06-13548 at 11 (D.E. 15-2) (“Plaintiffs seek relief from Defendants’ systematic failures to provide and maintain the legally mandated services, processes, and placements critical to the safety and well-being of putative Class members in Michigan’s foster care system. These failures generally affect all Class members, and the declaratory and injunctive relief sought here is intended to provide class-wide relief.”); Xiufang Situ v. Leavitt, 240 F.R.D. 551, 562 (N.D. Cal. 2007) (finding Rule 23(b)(2) satisfied, and explaining, “Plaintiffs ask the Court to order Defendant to comply with his statutory obligations regarding implementation of the Part D program for dual eligibilities. If Plaintiffs were to prevail on the merits, the Court would not need to engage in individualized inquiries regarding which class members have been denied benefits. . . . Plaintiffs have complained of conduct by Defendant that is applicable to the class generally and that may be remedied by class-wide relief.”); Gaskin v. Com. of Pa., 1995 WL 355346, at *5 (E.D. Pa. June 12, 1995) (“In the present case, the plaintiffs are
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seeking systemic injunctive relief . . . . This relief, if gained, would benefit the entire
class. The Court therefore finds that the plaintiffs have satisfied the Rule 23(b)(2)
requirement.”).
Here, most of the injunctive relief aims to improve the DFPS PMC system as a
whole, not to afford relief to individual Plaintiffs. The general relief sought includes, for
example:
(1) Requiring Defendants to ensure that all children in the plaintiff class are assigned DFPS workers whose overall caseloads do not exceed the caseload standards established by the Child Welfare League of America and the Council on Accreditation (D.E. 1, Prayer for Relief ¶ 355(d)(i));
(2) Requiring Defendants to establish, within DFPS, an administrative accountability structure to ensure that all caseworkers, using professionally accepted case practices, fully identify and address Plaintiff Children’s need for:
1. timely permanency; 2. placement in the least restrictive, most family-like placements that are suited to their needs; and 3. mental health services suited to their needs (Id. ¶ 355(d)(ii));
(3) Requiring Defendants to establish a process for ensuring that state standards for foster homes, foster group homes, emergency shelters, group residential operations, and residential treatment centers in which Plaintiff Children are placed are consistent with the standards set by the Child Welfare League of America and the Council on Accreditation and, if they are not, for taking necessary steps to have the state’s standards modified (Id. ¶ 355(d)(vi));
(4) Prohibiting Defendants from placing Plaintiff Children in foster homes, foster group homes, emergency shelters, group residential operations, or residential treatment centers that do not meet the standards for such homes or facilities set by the Child Welfare League of America and the Council on Accreditation (Id. ¶ 355(d)(vii));
(5) Prohibiting DFPS from placing any children in privately operated residential facilities or CPAs not accredited by the Council on Accreditation ((Id. ¶ 355(d)(ix)).
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The Court does not believe that these forms of relief would require an investigation into the individualized circumstances of each child. Rather, the requested relief “applies to the proposed class as a whole without requiring differentiation between class members.” D.G., 594 F.3d at 1201. While certain forms of relief, such as the creation of “expert panels to review the cases of all class members who have had more than four placements,” or “expert panels to review the cases of all class members who have been in the PMC of the state for more than two years,” (Id. ¶ 355(d)(iii), (iv)) would certainly not apply to all class members, this is not fatal to Rule 23(b)(2) certification. Baby Neal, 43 F.3d at 63 (“While it is true that not all of the orders issued will immediately benefit every plaintiff, every plaintiff will benefit from relief designed to assure DHS compliance with the applicable standards.”); D.G., 594 F.3d at 1200-01 (affirming confirmation, and noting, “the district court found that at least one of the Named Plaintiffs’ requested injunctions remedies OKDHS’s conduct based on grounds generally applicable to the class.”) (emphasis added).
Defendants cite several cases arguably supporting the conclusion that Rule 23(b)(2) certification should be denied “where individualized issues overshadow[] the cohesiveness of the proposed class.” (D.E. 30 at 38 (citing Maldonado v. Ochsner Clinic Foundation, 493 F.3d 521 (5th Cir. 2007); In re Katrina Canal Breaches Litig., 401 Fed. App’x 884 (5th Cir. 2010), In re Vioxx Products Liability Litig., 2008 WL 4681369 (E.D. La. Oct. 21, 2008), and Shook v. Board of County Commissions of County of El Paso, 543 F.3d 597 (10th Cir. 2008).) This line of argument, however, misses the mark. While it is true that these cases denied certification under Rule 23(b)(2) due to the individualized issues involved, they say nothing about whether the type of class action at
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issue here can proceed under Rule 23(b)(2); in other words, they did not involve the foster care system, or anything close to it.5 These cases are therefore much less relevant than those involving class actions closely analogous to that proposed here. The few cases directly on point, such as Baby Neal and others discussed above, reject Defendants’ concerns as to individualized relief in the context of class actions challenging government foster care systems. 43 F.3d at 64 (“Plaintiffs simply ask the district court to declare the DHS’s current provision of child welfare services to the plaintiffs to be violative of the cited statutory and constitutional provisions and to order DHS to implement a system that would enable it to comply with its legal mandates in the provision of these services. Furthermore, all of the class members will benefit from relief which forces the defendant to provide, in the manner required by law, the services to which class members either are currently or at some future point will become entitled.”). Moreover, the Court does not find cases to the contrary (such as J.B.) to be persuasive, and again notes that they have received little attention in this Circuit or elsewhere.
Defendants also contend that Plaintiffs’ proposed injunctive relief fails to describe the requested relief in reasonably particular detail so that the court can conceive of an injunction that would satisfy Rule 65(d)’s requirements,6 as well as those of Rule 23(b)(2). For example, Defendants argue that Plaintiffs’ request for “appropriate remedial steps,” or determination as to whether class members’ needs are being “adequately addressed,” is problematic. (D.E. 30 at 44.) Nevertheless, the Court understands Plaintiffs to primarily seek injunctive relief to improve the DFPS system as a
5 Importantly, Plaintiffs in Maldonado also sought monetary damages. 493 F.3d at 524. 6 Federal Rule of Civil Procedure 65(d)(1) provides, “[e]very order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail--and not by referring to the complaint or other document--the act or acts restrained or required.”
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whole, and the relief would not require investigating how each individual child’s conditions are (or are not) improved. As in Baby Neal, “the court can fashion precise orders to address specific, system-wide deficiencies and then monitor compliance relative to those orders.” 43 F.3d at 64. The Court has no difficulty envisioning the relief requested in this lawsuit, and concludes that it is permissible under Rule 23(b)(2).
4. Discretionary Factors Finally, Defendants contend that the Court should exercise its discretion to deny certification to Plaintiffs’ proposed class, for several reasons. First, the Texas state court system is involved in the oversight of the placement and service needs that DFPS provides in each case. Given the continual state court jurisdiction over the children at issue, Plaintiffs’ claims should in fact be litigated before the state courts that are responsible for them; this Court should not intervene. (D.E. 30 at 46.) Second, there are other organizations designed to oversee the policy-related relief Plaintiffs seek to obtain through the suit, and the initiatives at issue recognize the essential role that the state courts of continuing jurisdiction have over each child’s case. (D.E. 30 at 47.) Defendants conclude that “this Court does not need to interfere with supervision that already exists to ensure compliance with federal and state law.” (D.E. 30 at 47.) Defendants essentially ask this Court to defer to a state oversight system that, at least according to Plaintiffs’ allegations, is insufficient to address the problem in the first place. It makes little sense to deny class certification to a lawsuit challenging the state foster care system on the sole basis that the system is already being adequately supervised. Moreover, to do so would nearly constitute an impermissible ruling on the
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merits in the context of a Rule 23 class certification order.7 As the Fifth Circuit has explained, “[i]n determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met. The Rule 23 analysis must focus on the requirements of the rule, and if findings made in connection with those requirements overlap findings that will have to be made on the merits, such overlap is only coincidental.” Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 229 (5th Cir. 2009) (citations and quotation marks omitted). The Court will not address arguments that go to the merits of the dispute, as opposed to class certification.
5. Class Counsel (Rule 23(g)) As noted above, Rule 23 requires that the Court appoint class counsel, consistent with Rule 23(g). Fed. R. Civ. P. 23(c)(1)(B). Rule 23(g)(1) provides: Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
(A) must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class;
(B) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class;
7 In fact, Defendants have filed a Rule 12(b)(1) Motion to Dismiss presenting arguments similar to those advanced here. (D.E. 43.)
32 / 35

(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney’s fees and nontaxable costs; (D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and (E) may make further orders in connection with the appointment. Fed. R. Civ. P. 23(g)(1). Rule 23(g)(2) sets out the standard for appointing class counsel, stating, “[w]hen one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.” Fed. R. Civ. P. 23(g)(2). Rule 23(g)(4) requires that “[c]lass counsel must fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4); see generally In re Enron Corp. Securities, 529 F. Supp. 2d 644, 674 (S.D. Tex. 2006) (addressing Rule 23(g)). The Court finds counsel for Named Plaintiffs to be proper class counsel, consistent with Rule 23(g). The Court first considers the factors under Ruler 23(g)(1). First, Counsel for Children’s Rights notes that they have investigated the claims raised in this litigation for over two years, and are thoroughly familiar with the claims at issue. D.E. 15 at 24-25; see also Patrick, 2011 WL 693223, at *7 (“Children’s Rights’ attorneys have served as class counsel on much of the major child welfare litigation in the United States. The attorneys at Children’s Rights have many years of experience litigating similar class actions across the country, asserting constitutional and statutory claims on behalf of children in foster care to obtain system-wide injunctive and declaratory relief.”). Second, as noted above, all class counsel have significant experience in handling class actions, having each been involved with several such actions. Third, counsel clearly
33 / 35

possess sufficient knowledge of the applicable law, having dealt generally with civil rights actions in the past, and the rights of children in foster care specifically. Finally, counsel will certainly commit sufficient resources to represent the class, as they have already demonstrated with the investigation leading up to the Complaint in this action, the Complaint itself, and their representations before the Court at the initial pretrial conference. These considerations also support the conclusion that class counsel will “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4). In light of their qualifications, previous work in this litigation, experience with similar litigation, and all other factors discussed above, the Court finds that class counsel will “fairly and adequately” represent the class interests, consistent with Rule 23(g)(4).
The Court therefore concludes that counsel for Named Plaintiffs shall be appointed as Class Counsel pursuant to Rule 23(g). IV. Conclusion
For the reasons stated above, the Court GRANTS Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel. (D.E. 15.) The Court ORDERS as follows:
(1) This action shall proceed as a class action with the members of the Class consisting of: “All children who are now and all those who will be in the Permanent Managing Conservatorship of the Texas Department of Family and Protective Services.”
(2) The following Named Plaintiffs, by their next friends, are appointed as Class Representatives: a. Plaintiff M.D., by next friend Sarah R. Stukenberg;
34 / 35

b. Plaintiff D.I., by next friend Nancy G. Pofahl; c. Plaintiff Z.H., by next friend Carla B. Morrison; d. Plaintiff S.A., by next friend Javier E. Solis; e. Plaintiff A.M., by next friend Jennifer Talley; f. Plaintiff J.S., by next friend Anna J. Ricker; g. Plaintiff K.E., by next friend John W. Cliff, Jr.; h. Plaintiff D.P., by next friend Karen J. Langsley; and i. Plaintiff T.C., by next friend, Paul Swacina. (3) The following attorneys are appointed as co-counsel for the class: a. Canales & Simonson, P.C.; b. Haynes & Boone, LLP; c. Yetter Coleman, LLP; and d. Attorneys from Children’s Rights, a non-profit organization with its
office in New York. SIGNED and ORDERED this 2nd day of June, 2011.
___________________________________ Janis Graham Jack
United States District Judge
35 / 35

 
 Case 2:11-cv-00084 Document 134 Filed in TXSD on 06/14/12 Page 1 of 1

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a: Case: 11-40789 Document: 00511 B98836 Page: 1 Date Filed: 03/93/2012 Ii UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BILL OF COSTS

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opinion, See FED. R. App. P. & 5TH CIR. R. 39. Untimely bills of costs must be
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The Clerk is requested to tax the following costs against: ---------- Plaintiffs-Appellees ------------------------------------

COSTS TAXABLE UNDER Fed. R. App. P. & S'h Cir. R. 39

REQUESTED
No. of Copies Pages Per Copy I Cost per Page*

ALLOWED (If different from amount requested)
Cost per Page* Total Cost

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Costs are hereby taxed in the amount of $

this 3rd

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State of Texas
County - of Travis - - - - - -

LYLE W.CA YCE, CLERK
By _ _ _ _ _ _~~~-----Deputy Clerk

I Sean D. Jordan

,do hereby swear under penalty of perjury that the services for which fees have been charged were

incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to

opposing counsel, with postage fully prepaid thereon. This 3rd

day of April

, -=:2;:.0.:.1=2_ _ _----'

Is/ Sean D. Jordan

*SEE REVERSE SIDE FOR RULES

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 Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend, Sarah R. Stukenberg, D.I., by his next friend, Nancy G. Pofahl, Z.H., by his next friend, Carla B. Morrison, S.A., by her next friend, Javier E. Solis, A.M., by her next friend, Jennifer Talley, J.S., by his next friend, Anna J. Ricker, K.E., by her next friend, John W. Cliff, Jr., D.P., by her next friend, Karen J. Langsley, and T.C., by his next friend, Paul Swacina, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
RICK PERRY, in his official capacity as Governor of the State of Texas,
THOMAS SUEHS, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas, and
ANNE HEILIGENSTEIN, in her official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:11-cv-00084 ) ) ) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL AND MEMORANDUM OF LAW IN SUPPORT

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 2 of 32
TABLE OF CONTENTS I. PRELIMINARY STATEMENT .........................................................................................1
II. STATEMENT OF FACTS ..................................................................................................2
A. Defendants Are Causing Harm and Risk of Harm to Plaintiff Children, Who Are in the State‟s Permanent Managing Conservatorship. ......................................................................................................2
B. Defendants‟ Dysfunctional System Harms the Named Plaintiffs ...................................................................................................................3
C. DFPS Is Legally Obligated to Provide for Plaintiff Children‟s Health, Safety and Welfare...................................................................................................6
III. ARGUMENT AND AUTHORITIES..................................................................................7
A. Legal Standard for Class Certification.....................................................................7 B. The Class Satisfies Rule 23(a)‟s Numerosity, Commonality,
Typicality and Adequacy Requirements ..................................................................9
1. Numerosity: The Class Is So Numerous that Joinder Is Impracticable..........................................................................................10
2. Commonality: There Are Questions of Law and Fact Common to the Class .................................................................................11
3. Typicality: Named Plaintiffs‟ Claims Are Typical of the Class‟s Claims......................................................................................15
4. Adequacy of Representation: Named Plaintiffs and Their Counsel Are Adequate Representatives ...........................................17
C. The Class, Which Seeks Only Declaratory and Injunctive Relief for Civil Rights Violations, Satisfies Rule 23(b)(2)‟s Requirements ....................19
D. Class Certification Would Promote Judicial Economy and Cost Efficiency ...............................................................................................................22
E. Named Plaintiffs‟ Counsel Will Fairly and Adequately Represent the Class‟s Interests and Should Be Appointed Class Counsel .............................23
IV. CONCLUSION..................................................................................................................23
i

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 3 of 32

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Adver. Specialty Nat’l Ass’n v. Fed. Trade Comm’n, 238 F.2d 108 (1st Cir. 1956) ....................................................................................................11

Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) .........................................................................................8, 20, 22

Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994).........................................................................................8, 11, 12, 21

Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290 (5th Cir. 2001) .....................................................................................................8

Boykin v. Ga.-Pac. Corp., 706 F.2d 1384 (5th Cir. 1983) .................................................................................................10

Brian A. v. Sundquist, 149 F. Supp. 2d 941 (M.D. Tenn. 2000)....................................................................................6

Carson P. v. Heineman, 240 F.R.D. 456 (D. Neb. 2007)..................................................................................................9

Casa Orlando Apts., Ltd. v. Fed. Nat’l Mortgage Ass’n, 624 F.3d 185 (5th Cir. 2010) .................................................................................................7, 8

Charlie & Nadine H. v. Whitman, No. 99-3678 (D.N.J. Mar. 7, 2002)............................................................................................9

Chisholm v. Jindal, 1998 U.S. Dist. LEXIS 2521 (E.D. La. Feb. 27, 1998) .....................................................13, 14

Connor B. v. Patrick, No. 10-cv-30073-MAP, --- F. Supp. 2d ---, 2011 WL 31343 (D. Mass. Jan. 4, 2011) ...................................................................................6

Connor B. v. Patrick, No. 10-cv-30073-MAP, 2011 WL 693223 (D. Mass. Feb. 28, 2011) .................................9, 12

D.G. v. DeVaughn, 594 F.3d 1188 (10th Cir. 2010) ...............................................................................8, 11, 15, 21

ii

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 4 of 32
Danielle v. Adriazola, 284 F. Supp. 2d 1368 (S.D. Fla. 2003) ......................................................................................6
David C. v. Leavitt, No. 93-C-206 W, 1993 WL 764518 (D. Utah May 7, 1993).....................................................9
DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007) ................................................................................... passim
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980).................................................................................................................22
Dwayne B. v. Granholm, No. 06-13548 (E.D. Mich. Feb. 15, 2007) .................................................................................9
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).................................................................................................................22
Eric L. v. Bird, 848 F. Supp. 303 (D.N.H. 1994)................................................................................................6
Forbush v. J.C. Penney Co., 994 F.2d 1101 (5th Cir. 1993) .................................................................................................11
G.L v. Zumwalt, 564 F. Supp. 1030 (W.D. Mo. 1983) .........................................................................................9
Griffith v. Johnston, 899 F.2d 1427 (5th Cir. 1990) ...................................................................................................6
Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., 380 F.3d 872 (5th Cir. 2004) .....................................................................................................6
Hodgson v. Minnesota, 497 U.S. 417 (1990)...................................................................................................................6
Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982) ...................................................................................................17
James v. City of Dallas, 254 F.3d 551 (5th Cir. 2001) ........................................................................................... passim
Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995)..........................................................................................9
Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975).........................................................................19
iii

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 5 of 32
K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990) .....................................................................................................6
Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. 2003)................................................................................................9
Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299 (5th Cir. 2007) ...................................................................................................17
LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C. 1991) ............................................................................................6, 9
Lightbourn v. Cnty. of El Paso, 118 F.3d 421 (5th Cir. 1997) .............................................................................................15, 20
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997).................................................................................................8, 21
Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) ............................................................................................6
Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999) .............................................................................................10, 17
Murillo v. Musegades, 809 F. Supp. 487 (W.D. Tex. 1992).........................................................................................20
Neff v. VIA Metro. Transit Auth., 179 F.R.D. 185 (W.D. Tex. 1998) .....................................................................................17, 20
Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289 (8th Cir. 1993) .....................................................................................................6
Olivia Y. v. Barbour, 351 F. Supp. 2d 543 (S.D. Miss. 2004)......................................................................................6
Olivia Y. v. Barbour, No. 3:04-cv-251-LN (S.D. Miss. Mar. 11, 2005) ....................................................9, 13, 14, 21
Penson v. Terminal Transport Co., Inc., 634 F.2d 989 (5th Cir. 1981) ...................................................................................................19
Phillips v. Joint Legislative Comm., 637 F.2d 1014 (5th Cir. 1981) .................................................................................................11
iv

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 6 of 32
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...................................................................................................................6
Sam M. v. Carcieri, 608 F.3d 77 (1st Cir. 2010) ......................................................................................................18
Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) ...................................................................................................6
Wilder v. Bernstein, 499 F. Supp. 980 (S.D.N.Y. 1980) ............................................................................................9
Youngberg v. Romeo, 457 U.S. 307 (1982)...................................................................................................................6
Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883 (10th Cir. 1992) ...................................................................................................6
Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981) .................................................................................................10
FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS FED. R. CIV. P. 23................................................................................................................... passim
OTHER: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS TEX. FAM. CODE ANN. § 263.401(a), (b) (West 2010).....................................................................2
v

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 7 of 32

The Plaintiffs identified in the Original Complaint in this action (the “Named Plaintiffs”)

file this Motion for Class Certification and Appointment of Class Counsel and Memorandum of

Law in Support. In support of their Motion, Named Plaintiffs state as follows:

I.

PRELIMINARY STATEMENT

This action seeks declaratory and injunctive relief on behalf of a class defined as “all

children who are now and all those who will be in the Permanent Managing Conservatorship of

the Texas Department of Family and Protective Services” (“DFPS”). These are the “forgotten

children” of Texas – children who were brought into state custody because they were abused and

neglected at home, but then are left to languish for years, too many of them suffering further

abuse and neglect while the state does little to seek and secure permanent homes for them.

Named Plaintiffs, and the similarly situated class of approximately 12,000 Texas children

in the state‟s Permanent Managing Conservatorship they seek to represent (collectively,

“Plaintiff Children” or “the Class”), are entirely dependent on Defendants – the Governor of

Texas, the Executive Commissioner of the Texas Health and Human Services Commission, and

the Commissioner of DFPS. Defendants are required by law to provide children in the

Permanent Managing Conservatorship of DFPS with necessary care, protection, and services.

However, as set forth in Plaintiffs‟ Original Complaint, Defendants fail to meet their

constitutional obligations and instead expose these children to ongoing harm and risk of harm

through the very system that is designed to protect them. Plaintiffs challenge the systemic

conditions that subject them to harm while in DFPS custody and seek injunctive relief to remedy

those chronic problems.

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Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 8 of 32

Pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure, Plaintiffs seek

an order certifying the Class. Named Plaintiffs also request that the Court appoint the

undersigned counsel to represent the Class.

II.

STATEMENT OF FACTS

A. Defendants Are Causing Harm and Risk of Harm to Plaintiff Children, Who Are in the State’s Permanent Managing Conservatorship.

Abused and neglected children who cannot remain safely at home are brought into

custody by DFPS and are placed in the state‟s Temporary Managing Conservatorship (“TMC”).

As Temporary Managing Conservator, under Texas law, DFPS has one year to reunite the

children with their families, if safe and appropriate, and if not, to place the children permanently

with a relative or adoptive family. This one-year period may be extended to 18 months. See

TEX. FAM. CODE ANN. § 263.401(a), (b) (West 2010).

Children for whom DFPS fails to find a permanent home within the period of TMC are

placed in the Permanent Managing Conservatorship (“PMC”) of the state. (Plaintiffs‟ Original

Complaint for Injunctive and Declaratory Relief and Request for Class Action, Docket Entry No.

1, hereinafter “Compl. [DE #1],” ¶ 168). As Permanent Managing Conservator, the state is

responsible for the safety, permanency, and well-being of Plaintiff Children. (Compl. [DE #1]

¶¶ 4, 168-74, 177.) However, Defendants, through their actions and inactions, expose Plaintiff

Children to harm and the risk of harm, including the following: (a) Defendants frequently move

Plaintiff Children from placement to placement; (b) Defendants make inappropriate use of

congregate placements for Plaintiff Children; (c) Plaintiff Children suffer abuse and neglect in

state custody; (d) Defendants deny Plaintiff Children necessary services while in state custody;

(e) Defendants frequently and unnecessarily separate Plaintiff Children from their siblings and

fail to ensure that children can visit with their families; and (f) Defendants allow Plaintiff

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Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 9 of 32
Children to languish in foster care for years and eventually to age out of state custody ill-
prepared for independent adult life.
These harms are a direct result of Defendants‟ failures, including at least the following:
(a) failure to maintain a caseworker staff sufficient, in both size and capacity, to perform the
tasks critical to Plaintiff Children‟s safety, permanency, and well-being; (b) failure to focus
resources on permanency planning, with the result that Plaintiff Children languish in state
custody for years; (c) failure to establish and maintain an adequate number and array of
placements and services, with the result that Plaintiff Children are subjected to unstable and
inappropriately restrictive placements, many of which are far from their families and
communities; and (d) failure to adequately oversee substitute care providers, with the result that
Plaintiff Children are exposed to harm and risk of harm.
B. Defendants’ Dysfunctional System Harms the Named Plaintiffs.
Defendants‟ conduct with respect to each Named Plaintiff illustrates the harms faced by
all children in the state‟s PMC. Named Plaintiffs and Plaintiff Children entered state custody
because they needed the state‟s protection. Instead, as set forth below, the state has subjected
them to further harm and risk of harm while in its custody:
 M.D. is a fourteen-year-old girl who was first brought into state custody six years ago. (Compl. [DE #1] ¶ 21.) M.D.‟s aunt and uncle were given permanent managing conservatorship of the child, but she was brought back into state custody in 2007 after she was sexually assaulted by a cousin who lived in the home. (Id. ¶ 22.) In the four years since she came back into state custody, M.D. has been cycled through at least seven different foster placements, most of them institutions, and some more than 300 miles from her home. (Id. ¶¶ 23-27.) She spent more than two years at a residential treatment center (“RTC”), where her mental state steadily deteriorated and she became suicidal. (Id. ¶ 24.) She was raped when she left the grounds of a subsequent RTC placement, but she was not given any special counseling to deal with the resultant trauma. (Id. ¶ 26.) M.D. has been treated with numerous psychotropic medications. (Id. ¶ 29.) She was not freed for adoption until July 2010, and Defendants have failed to seek and secure a permanent family for her. (Id. ¶¶ 31-32.)
3

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 10 of 32
 D.I. is a nine-year-old boy who has been in the state‟s PMC since August 2010. (Compl. [DE #1] ¶¶ 34, 41.) Defendants put D.I. in an ill-matched foster home where he was sexually abused by older boys. (Id. ¶¶ 34, 38.) When DFPS removed D.I. from that placement, it sent him to a foster home that housed at least five other boys. That inappropriate placement disrupted after only ten days, necessitating another move for D.I. (Id. ¶ 39.) While in the state‟s custody, D.I. has been administered psychotropic medications but has not been given adequate counseling to address either the severe neglect he suffered before removal or the trauma he has suffered while in state custody. (Id. ¶¶ 34, 40.) Defendants have failed to provide D.I. with the supports and services he needs to be able to become part of a safe and nurturing family. (Id. ¶ 43.)
 Z.H. is a 10-year-old boy who was brought into state custody in February 2009. (Compl. [DE #1] ¶¶ 45-46.) He was removed from his home after being sexually molested by his mother‟s boyfriends, but he was not given appropriate services or therapy when he was brought into custody, and was instead prescribed powerful psychotropic drugs. (Id. ¶ 47.) In his two years in state custody, Z.H. has had at least five placements and three hospitalizations, some of them over 300 miles from his home. (Id. ¶¶ 46-53.) While in state custody, he has been overmedicated to the point of needing emergency medical attention. (Id. ¶ 50.) DFPS has failed to develop and implement an appropriate plan for him to leave state custody and grow up in a safe and nurturing family. (Id. ¶¶ 54-55.)
 S.A. is a 14-year-old girl who entered state custody in November 2001. (Compl. [DE #1] ¶ 57.) After ten years in DFPS custody, this young girl, who had no acute emotional or mental problems when she came into care, is currently placed in an RTC and is receiving multiple psychotropic medications to address what DFPS recognizes as her “anxiety and grief/loss issues.” (Id. ¶¶ 62, 63.) DFPS‟s poor child-to-placement matching has resulted in great instability and frequent moves for this child. S.A. has endured at least 24 placements across the state and has had twelve different caseworkers – one for only a month. (Id. ¶¶ 57, 65.) Some of her placements have lasted only weeks or even days. (Id. ¶ 61.) Though S.A. has been legally eligible for adoption for almost eight years, Defendants have not made any individualized effort to find her a permanent home. (Id. ¶¶ 59, 66.)
 A.M. is a 13-year-old girl who has been in the state‟s custody since she was six. (Compl. [DE #1] ¶ 68.) DFPS has separated A.M. from her sisters and shuffled her from one placement to another, including one foster home where she was subjected to abusive discipline. (Id. ¶¶ 68-73.) She spent three years at an RTC 300 miles from her home community and from the only relative who could visit her. (Id. ¶¶ 76-81.) While in that institution, A.M. was given psychotropic drugs and her face and arm were injured when she was improperly restrained by staff. (Id. ¶ 79.) During her stay at this institution, far from the DFPS Region where her case was being managed, her case was reassigned five times. (Id. ¶ 81.) She was
4

Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 11 of 32
never visited by a DFPS caseworker during the three years she spent there. (Id.) A.M. was finally removed from this institution, and placed in a foster home after only one telephone conversation with the foster mother. (Id.)
 J.S. is a nine-year-old boy who entered foster care at age five, and has been shuffled by DFPS among RTCs, a group home, and several foster homes. (Compl. [DE #1] ¶¶ 83-84.) Early on, DFPS placed the young boy in a residential treatment center more than 500 miles from his home. (Id. ¶ 84.) He was the youngest child in this facility, which also housed adult mental patients. (Id.) DFPS later moved him to another institution, this one 300 miles from his home. (Id. ¶ 89.) J.S. is frequently restrained and as of October 2010 was receiving four psychotropic medications. (Id. ¶ 90.) Foster parents with whom he was previously placed want to adopt him, but DFPS still has not taken steps to make this legally possible. (Id. ¶¶ 88-89, 91.)
 K.E. is a 16-year-old girl who has been in state custody since she was eight. (Compl. [DE #1] ¶ 93.) Since then, Defendants have subjected K.E. to at least nineteen far-flung placements, many of them institutions. (Id. ¶¶ 93, 95.) At one point, DFPS kept her in an emergency shelter for almost three months, in violation of state law. (Id. ¶ 94.) Between July 2008 and January 2011, DFPS moved K.E. among numerous placements, not one of which was a foster family home. (Compl. [DE #1] ¶ 97.) While in foster care, K.E.‟s condition has deteriorated markedly, and she is now medicated with powerful psychotropic drugs. (Id. ¶¶ 93, 98.) During the eight years that K.E. has been in the state‟s custody, Defendants have failed to find her a permanent home. (Id. ¶ 102.) K.E. will likely age out of care. (Id.)
 D.P. is a 16-year-old girl who entered state custody at age six. (Compl. [DE #1] ¶ 104.) During her ten years in its care, DFPS has moved D.P. through at least 28 placements, many of them institutions. (Id.) In fact, D.P. spent the entire fivemonth period from October 2007 through February 2008 in emergency shelters, contrary to Texas law. (Id. ¶ 111.) DFPS has separated D.P. from her sisters. (Id. ¶ 107.) DFPS placed D.P. in an unsupervised, unregulated kinship placement with her aunt and uncle where she was sexually abused. (Id. ¶ 113.) When she ran away from that placement to escape the abuse, DFPS sent D.P. to a detention center. (Id. ¶ 114.) Later, D.P. was shuffled among different institutional placements, and at one point was kept in a hospital a week past her discharge date simply because DFPS had no other placement for her. (Id. ¶¶ 115-17.) Defendants have failed to provide D.P. with critically needed mental health services, instead allowing her to be overmedicated with psychotropic medications and subjected to chemical restraints. (Id. ¶¶ 115, 119.)
 T.C. is a 16-year-old boy who entered Texas foster care when he was eight years old. (Compl. [DE #1] ¶ 125.) Since then, DFPS has moved T.C. through at least twenty placements across the state. (Id.) T.C. has spent almost five of his eight years in state custody in institutions. (Id.) Though he has been legally free for adoption for more than six years, T.C. remains in foster care without a permanent
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home. (Id.) DFPS has separated T.C. from his siblings (Id. ¶¶ 126, 134), and his current placement in an institution is more than 450 miles from his home – too far for any visits. (Id. ¶ 133.) C. DFPS Is Legally Obligated to Provide for Plaintiff Children’s Health, Safety and Welfare. As Plaintiff Children‟s legal custodian, DFPS is required by law to provide Plaintiff Children with care and services that ensure their safety and well-being, and to return them home where safe and appropriate or, when that is not possible, to timely find them alternative permanent homes. (Compl. [DE #1] ¶ 4.) Defendants‟ specific constitutional obligations to Plaintiff Children are based in the First, Ninth, and Fourteenth Amendments to the United States Constitution. See, e.g., Hodgson v. Minnesota, 497 U.S. 417, 447-48 (1990); Roberts v. U.S. Jaycees, 468 U.S. 609, 617-20 (1984); Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982); Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990) (holding that taking children into state foster care custody imposes upon the state “the responsibility to provide constitutionally adequate care” under the Fourteenth Amendment); see also Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., 380 F.3d 872, 880-83 (5th Cir. 2004) (assuming without deciding that the state had “an affirmative duty” to protect a child in its foster care custody from violence in a foster home).1 Named Plaintiffs seek to enforce these federal due process rights, as well as Plaintiff Children‟s federal procedural due process rights to certain entitlements conferred by state statutes. (Compl. [DE #1] ¶¶ 347-50, 352, 354.)
1 Courts across the country have applied the holding of Youngberg in cases involving children in foster care. Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 291-93 (8th Cir. 1993); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir. 1992); K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); Taylor v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987); Connor B. v. Patrick, No. 10-cv-30073-MAP, --- F. Supp. 2d ---, 2011 WL 31343, at *13 (D. Mass. Jan. 4, 2011); Olivia Y. v. Barbour, 351 F. Supp. 2d 543, 555-56 (S.D. Miss. 2004); Danielle v. Adriazola, 284 F. Supp. 2d 1368, 1373-75 (S.D. Fla. 2003); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 953 (M.D. Tenn. 2000); Marisol A. v. Giuliani, 929 F. Supp. 662, 674-77 (S.D.N.Y. 1996), aff’d, 126 F.3d 372 (2d Cir. 1997); Eric L. v. Bird, 848 F. Supp. 303, 307 (D.N.H. 1994); LaShawn A. v. Dixon, 762 F. Supp. 959, 993-96 (D.D.C. 1991), aff’d in relevant part, 990 F.2d 1319 (D.C. Cir. 1993).
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Defendants have long known of the failures of their foster care system, yet have failed to

take effective, necessary actions to address those failures. As Plaintiff Children‟s legal

custodians, Defendants have knowingly failed to meet their constitutional obligations to ensure

their safety, permanency, and well-being. Until the system designed to protect them is

fundamentally changed, Plaintiff Children will continue to be harmed and placed at risk of harm.

Named Plaintiffs have commenced this action to stop these and other ongoing legal

violations by Defendants and the harms and risk of harm they impose on the entire proposed

Class. Because these violations affect the entire Class, Named Plaintiffs seek declaratory and

injunctive relief on behalf of the Class to end these violations and to ensure that Defendants

comply with their constitutional obligations to Plaintiff Children.

III.

ARGUMENT AND AUTHORITIES

Because the proposed class as defined in Plaintiffs‟ Original Complaint meets all the

requirements of Rules 23(a) and 23(b)(2), the Court should grant certification.

A. Legal Standard for Class Certification.

Named Plaintiffs seek certification of a class consisting of “all children who are now and

all those who will be in the Permanent Managing Conservatorship of DFPS.” (Compl. [DE #1] ¶

156.) To obtain class certification, Plaintiff Children first must satisfy the four threshold

requirements of Rule 23(a). See Casa Orlando Apts., Ltd. v. Fed. Nat’l Mortgage Ass’n, 624

F.3d 185, 190 (5th Cir. 2010). Rule 23(a) requires that:

(i) the class is so numerous that joinder of all members is impracticable;

(ii) there are questions of law or fact common to the class;

(iii) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(iv) the representative parties will fairly and adequately protect the interests of the class.

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FED. R. CIV. P. 23(a). Once the threshold requirements of Rule 23(a) have been met, the Court must then decide
whether the proposed class satisfies the requirements of at least one of Rule 23(b)‟s three subsections. See Casa Orlando, 624 F.3d at 190. Because Named Plaintiffs seek only injunctive and declaratory relief for civil rights violations, certification is appropriate under Rule 23(b)(2). This subsection “was promulgated essentially as a tool for facilitating civil rights class actions.” DeHoyos v. Allstate Corp., 240 F.R.D. 269, 284 (W.D. Tex. 2007) (citations and internal quotation marks omitted). It “focus[es] on cases where broad, class-wide injunctive or declaratory relief is necessary.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 412 (5th Cir. 1998). Plaintiff Children comprise “the prototypical class” under Rule 23(b)(2): they are “a large group . . . seeking injunctive relief that benefits the group as a whole.” See Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 299 (5th Cir. 2001).
Courts nationwide, including three circuit courts, have supported certification of classes of foster children in lawsuits that, like this one, challenge systemic violations of these children‟s rights under federal law. See, e.g., D.G. v. DeVaughn, 594 F.3d 1188, 1193-94 (10th Cir. 2010) (affirming certification of class of “all children who are or will be in the legal custody of [the Oklahoma Department of Human Services] due to a report or suspicion of abuse or neglect or who are or will be adjudicated deprived due to abuse or neglect,” in lawsuit alleging agencywide deficiencies); Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir. 1997) (upholding certification of class of “[a]ll children who are or will be in the custody of the New York City Administration for Children‟s Services („ACS‟), and those children who . . . are or will be at risk of neglect or abuse and whose status is or should be known to ACS,” in lawsuit challenging systemic violations of children‟s rights); Baby Neal v. Casey, 43 F.3d 48, 60-65 (3d Cir. 1994)
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(reversing denial of certification of class of “all children in Philadelphia who have been abused
or neglected and are or should be known to the Philadelphia Department of Human Services,” in
lawsuit alleging systemic violations of federal statutory and constitutional law); Olivia Y. v.
Barbour, No. 3:04-cv-251-LN, slip op. at 10 (S.D. Miss. Mar. 11, 2005) (Ex. A)2 (certifying
class in lawsuit challenging systemic deficiencies in state‟s child welfare system).3
B. The Class Satisfies Rule 23(a)’s Numerosity, Commonality, Typicality and Adequacy Requirements.
Plaintiff Children satisfy each of the requirements of numerosity, commonality,
typicality, and adequacy.
2 Named Plaintiffs have attached certain unpublished court opinions as exhibits to this Motion that are not available in the LEXIS or Westlaw databases. 3 See also Connor B. v. Patrick, No. 10-cv-30073-MAP, 2011 WL 693223, at *1, 10 (D. Mass. Feb. 28, 2011) (certifying class of “all children who have been (or will be) placed in the custody of the Massachusetts Department of Children and Families („DCF‟) as a result of a state juvenile court order adjudicating them in need of „care and protection‟ due to abuse or neglect by their parents”); Dwayne B. v. Granholm, No. 06-13548, slip op. at 1-2 (E.D. Mich. Feb. 15, 2007) (Ex. B) (certifying class of “all children who are now or will be in the foster care custody of Michigan‟s Department of Human Services”); Kenny A. v. Perdue, 218 F.R.D. 277, 299-302 (N.D. Ga. 2003) (certifying class of “[a]ll children who have been, are, or will be alleged or adjudicated deprived who (1) are or will be in the custody of any of the State Defendants; and (2) have or will have an open case in Fulton County DFCS or DeKalb County DFCS”); Charlie & Nadine H. v. Whitman, No. 99-3678, slip op. at 3, 18 (D.N.J. Mar. 7, 2002) (certifying classes of “(1) all children who are or will be in the involuntary custody of New Jersey DYFS; and (2) all African-American and Hispanic children who are or will be in the custody of the New Jersey DYFS, and who have been or are subject to the risk of being denied or delayed adoption placement in a proper foster home based on their race, color or national origin”); Jeanine B. v. Thompson, 877 F. Supp. 1268, 1288 (E.D. Wis. 1995) (certifying class of “(1) children who are in foster care custody in Milwaukee County and who come into foster care custody in Milwaukee County; and (2) children who are not in foster care custody in Milwaukee County, but about whom the County Department of Human Services has received reports of abuse or neglect, and children who become the object of such reports” in lawsuit challenging systemic violations of children‟s rights); David C. v. Leavitt, No. 93C-206 W, 1993 WL 764518, at *2 (D. Utah May 7, 1993) (certifying class of: “(1) All children who are now or who will be in the custody of DHS and who have been or who will be placed by DHS in a shelter care facility, fosterfamily home, group home or institutional care; and, (2) All children who are or who will be known to DHS by virtue of a report of abuse or neglect” in lawsuit challenging systemic violations of children‟s rights); LaShawn A., 762 F. Supp. at 994 n.28 (noting certification of class of all children in foster care custody of D.C. Department of Human Services and all children known to DHS because of reported abuse or neglect, in suit challenging systemic violations of children‟s rights); G.L v. Zumwalt, 564 F. Supp. 1030, 1031 (W.D. Mo. 1983) (noting certification of class of children in the custody of the Jackson County Office of the Missouri Division of Family Services in lawsuit alleging systemic violations of children‟s rights); Wilder v. Bernstein, 499 F. Supp. 980, 994 (S.D.N.Y. 1980) (certifying class defined as “all those New York City children who are black, and who are Protestant, of other non-Catholic or non-Jewish faiths, or are of no religion, and are in need of child-care services outside their home” in case alleging systemic racial and religious discrimination in foster care placements). But see Carson P. v. Heineman, 240 F.R.D. 456, 466 (D. Neb. 2007).
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1. Numerosity: The Class Is So Numerous that Joinder Is Impracticable. Rule 23(a)(1) requires that the Class be so numerous that joinder of all members is impracticable. To satisfy the numerosity requirement, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of putative class members. James v. City of Dallas, 254 F.3d 551, 570 (5th Cir. 2001). Approximately 12,000 children are in the state‟s PMC. (Compl. [DE #1] ¶¶ 1, 156.) Fifth Circuit courts have consistently certified classes that are much less numerous than the proposed Class. See, e.g., James, 254 F.3d at 570 (class of 580); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624-25 (5th Cir. 1999) (class of 100150); Boykin v. Ga.-Pac. Corp., 706 F.2d 1384, 1386 (5th Cir. 1983) (class of 317). Indeed, “classes with as few as twenty-five or thirty members have been certified by some courts.” Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981). The number of Plaintiff Children is therefore large enough to satisfy the numerosity requirement. The numerosity of the proposed Class here makes joinder of all members impracticable. In determining impracticability, Fifth Circuit courts consider class size along with other relevant factors, including “the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of the plaintiff‟s claim.” Mullen, 186 F.3d at 624-25 (citations and internal quotation marks omitted). Joinder is impracticable in this case because Plaintiff Children are geographically dispersed across Texas and are frequently moved from placement to placement. See id. (holding that it was within district court‟s discretion to find joinder impracticable; transient nature of class members‟ employment made it likely that some were not available for joinder). Joinder is also impracticable because the number of Plaintiff Children changes over time. Virtually every day, new children enter the state‟s PMC; similarly, virtually every day, some children exit state custody to be reunified with their parents, adopted, or placed in guardianship, or by aging out without a permanent family.
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Where, as here, the class members are difficult to identify because they change over time, joinder is impracticable. Cf. Adver. Specialty Nat’l Ass’n v. Fed. Trade Comm’n, 238 F.2d 108, 119 (1st Cir. 1956) (stating that members of plaintiff class who were not fixed in number, but changed from year to year, supported numerosity finding). Moreover, the Class includes future wards of the State‟s PMC, who are necessarily unidentifiable at this time. Cf. Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981) (“joinder of unknown individuals is certainly impracticable.”) (citations and internal quotation marks omitted). Accordingly, Plaintiff Children satisfy the numerosity requirement.
2. Commonality: There Are Questions of Law and Fact Common to the Class. The test for commonality “is not demanding.” James, 254 F.3d at 570 (internal quotation marks and citations omitted); see also Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993) (“[t]he threshold of „commonality‟ is not high.”) (citation omitted). There need only be one question of law or fact common to the Class. James, 254 F.3d at 570. “As long as class members are allegedly affected by a defendant‟s general policy and the general policy . . . is the crux or focus of the litigation, the commonality requirement is satisfied.” DeHoyos, 240 F.R.D. at 280 (citation omitted). A commonality finding is especially warranted in cases where, as here, “plaintiffs request declaratory and injunctive relief against a defendant engaging in a common course of conduct toward them, and there is therefore no need for individualized determinations of the propriety of injunctive relief.” Baby Neal, 43 F.3d at 57 (emphasis in original). The proposed Class meets the commonality requirement because Named Plaintiffs challenge system-wide failures in the way that DFPS treats children in the state‟s PMC, and they do not seek redress for individual grievances. See D.G., 594 F.3d at 1196 (commonality requirement met where district court found at least one common issue of fact and law, namely, whether defendants risked harm to foster children due to “policy or practice of failing to
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adequately monitor the safety of plaintiff children,” and whether the “alleged policies or practices violate plaintiffs‟ . . . right to be reasonably free from harm . . . while in state custody”); Baby Neal, 43 F.3d at 60 (commonality met where foster children were “challenging common conditions and practices under a unitary regime,” and are “subject to the risk that they [would] suffer from the same deprivations resulting from the [child welfare agency‟s] alleged violations”); Connor B. v. Patrick, 2011 WL 693223, at *5 (“[T]he unreasonable risk of harm
created by these alleged systemic failures within [the Massachusetts Department of Children and
Families] and applicable to the entire Plaintiff class is sufficient to satisfy the requirement of commonality.” (emphasis in original)).
The proposed Class meets the commonality requirement because DFPS‟s failures raise
numerous questions of fact common to all Class members, including:
a. whether Defendants fail to maintain a caseworker staff of sufficient size and capacity to perform the tasks critical to Plaintiff Children‟s safety, permanency, and wellbeing;
b. whether Defendants fail to provide timely and appropriate permanency planning and services necessary to ensure that Plaintiff Children are either safely reunited with their families when appropriate or, when they cannot return home, that they are freed for adoption and promptly placed in a permanent home as required by law and by reasonable professional judgment;
c. whether Defendants fail to provide sufficient numbers and types of foster care placements necessary to assure Plaintiff Children safe, appropriate, and stable foster care placements;
d. whether Defendants fail to provide Plaintiff Children with appropriate monitoring and oversight necessary to keep them safe; ensure their well being; and prevent them from deteriorating physically, psychologically, or otherwise while in custody, as required by law and by reasonable professional judgment;
e. whether Defendants, by frequently placing Plaintiff Children far from their home communities, fail to provide Plaintiff Children with the supports necessary to maintain appropriate relationships with siblings, parents, and other family members;
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f. whether the actions or inactions of Defendants comprise a pattern or practice of depriving Plaintiff Children of the following, to which they are entitled under the laws of the State of Texas: (i.) the monitoring by DFPS of contracted substitute care, including that DFPS ensure that such services are provided in accordance with federal law, the laws of the State of Texas, and the rules of the Department of State Health Services and the Texas Commission on Environmental Quality; and (ii.) placement decisions made by DFPS using “clinical protocols to match a child to the most appropriate placement resource”; and
g. whether the foregoing actions or inactions of Defendants cause harm and risk of harm to Plaintiff Children.
(Compl. [DE #1] ¶ 158.) There are a number of questions of law common to the entire Class, including whether
Defendants‟ actions and inactions violate Plaintiff Children‟s rights (1) to be free from harm while in state custody as required by the Substantive Due Process clause of the Fourteenth Amendment to the United States Constitution; (2) to family association under the First, Ninth, and Fourteenth Amendments to the United States Constitution; and (3) to procedural due process under the Fourteenth Amendment to the United States Constitution, not to be deprived of a range of state-created legal entitlements. (Compl. [DE #1] ¶ 159.)
The aforementioned questions of fact and law satisfy Rule 23(a)(2)‟s commonality standard. Plaintiff Children are all wards of DFPS, a unitary state agency with specific affirmative duties to Plaintiff Children. Named Plaintiffs allege that DFPS‟s pervasive, longstanding, and well-documented failures in providing safe and adequate living situations, services, and monitoring violate Plaintiff Children‟s constitutional and statutory rights. Fifth Circuit courts have certified classes basing commonality on similar allegations. See, e.g., Olivia Y., No. 3:04-cv-251-LN, slip op. at 4-7, 10 (Ex. A); Chisholm v. Jindal, 1998 U.S. Dist. LEXIS 2521, at *10-13 (E.D. La. Feb. 27, 1998).
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In Olivia Y., a federal district court in Mississippi certified a Rule 23(b)(2) class of “all children who are or will be in the legal and/or physical custody of [Mississippi‟s Division of Family and Children‟s Services]” in a lawsuit challenging the operation of the state‟s child welfare system. Olivia Y., No. 3:04-cv-251-LN, slip. op. at 1 (Ex. A). The Olivia Y. class asserted that “systemic deficiencies . . . resulted and continue to result in violations of [the class‟s] federal and statutory and constitutional rights.” Id. at 4 (Ex. A). Because shortcomings in the state agency‟s staffing, policies, and practices “could readily be found to place every child in [the state‟s] custody at substantial risk of harm,” the court determined the class satisfied the commonality requirement “even though each plaintiff and each proposed class member may not yet have suffered the same type or degree of harm (though some surely have).” Id. at 7 (Ex. A). Similarly, Named Plaintiffs here allege that failures in Defendants‟ treatment and oversight of Plaintiff Children place every child in the Class at a substantial risk of harm.
Likewise, in Chisholm v. Jindal, a federal district court in Louisiana certified a Rule 23(b)(2) class of “[a]ll current and future recipients of Medicaid in . . . Louisiana under . . . twenty-one who are now and will in the future be placed in [a] waiting list.” Chisholm, 1998 U.S. Dist. LEXIS 2521, at *20. The lawsuit challenged the state‟s refusal to provide disabilityrelated services required by constitutional and statutory law. See id. at *2. Because the plaintiffs all “deal with the same system and seek to have that system so changed that it complies with federal . . . requirements,” the court held that the proposed class satisfied the commonality requirement of Rule 23(a). Id. at *11. In so deciding, the court emphasized the complaint “is not based on [the plaintiffs‟] individualized medical needs and the court will not need to review all class members‟ medical conditions in order to decide th[e] case.” Id. at *11-12. Similarly, Named Plaintiffs here claim that the constitutional and statutory rights of the members of the
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proposed Class are violated by systemic failures in Defendants‟ foster care system. The declaratory and injunctive relief that Named Plaintiffs request on behalf of the Class likewise focuses on reforming DFPS‟s systemic practices, not on redressing individual grievances.
Named Plaintiffs have identified common duties that Defendants owe to all Class members and specific systemic failures from which all unlawful harms to Named Plaintiffs and Plaintiff Children flow, thereby creating common questions of law and fact shared by all Class members. Accordingly, the commonality requirement is satisfied.
3. Typicality: Named Plaintiffs’ Claims Are Typical of the Class’s Claims. Rule 23(a)(3) requires that the Named Plaintiffs‟ claims be typical of the Class‟s claims. “The test for typicality, like the test for commonality, is not demanding.” Lightbourn v. Cnty. of El Paso, 118 F.3d 421, 426 (5th Cir. 1997). And as with commonality, “[t]ypicality does not require a complete identity of claims . . . . If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.” James, 254 F.3d at 571 (5th Cir. 2001) (citations and internal quotation marks omitted); see also D.G., 593 F.3d at 1195 (“[E]very member of the class need not be in a situation identical to that of the named plaintiff to meet Rule 23(a)‟s commonality or typicality requirements.”) (citations and internal quotation marks omitted). Named Plaintiffs “do not assert claims unique to themselves.” DeHoyos, 240 F.R.D. at 282. Rather, these children have had similar harmful experiences while in the state‟s custody. These harmful experiences are the direct result of the systemic failings alleged in the Complaint, and therefore are shared by other Plaintiff Children not named in the Complaint. For example:  M.D, S.A., J.S., K.E., D.P., and T.C. have suffered great instability in their
placements, moving frequently among multiple placements, often hundreds of miles from their home communities. (Compl. [DE #1] ¶¶ 23, 57, 59, 61, 89, 95-96, 100, 104, 108, 111, 122, 125, 128-31, 134.) Placement failures and consequent moves result from an overburdened and revolving DFPS workforce that does not timely and
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adequately assess children‟s needs, Defendants‟ failure to create and maintain placements adequate to meet the needs of children, and poor child-to-placement matching practices. (Id. ¶ 187.)
 M.D., Z.H., S.A., A.M., J.S., K.E., D.P., and T.C. have been unnecessarily placed in congregate care when their needs could have been met in less restrictive placements. (Compl. [DE #1] ¶¶ 24-25, 27, 47-48, 51-53, 59-62, 75-76, 83-84, 94-96, 109, 111, 117-18, 125, 128-33.) Although congregate settings should be placements of last resort, the Named Plaintiffs have been moved from one institution to another and often kept in group settings longer than appropriate. For instance, D.P. was kept in a hospital because DFPS had no other placement for her; K.E. and D.P. were kept in emergency shelters for multiple months, contrary to state law and DFPS policy; and M.D., A.M., and T.C. have each spent years in institutions. (Id. ¶¶ 24, 75-79, 94, 111, 117, 125, 130.) This inappropriate use and overuse of congregate care is a result of Defendants‟ failure to develop an appropriate array of placements and supportive services and of DFPS‟s intake and assessment failures. (Id. ¶ 203.)
 D.I., and D.P. have suffered abuse while in the state‟s custody. D.I. was sexually abused by older children in a foster home, and D.P. was sexually abused by the uncle with whom DFPS had placed her. (Compl. [DE #1] ¶¶ 38, 113.) The abuse and neglect suffered by Plaintiff Children is a result of a system in which caseworkers carry heavy caseloads that hamper their ability to visit children in their placements, placement capacity is inadequate to meet the needs of children and Defendants fail to adequately oversee the state‟s substitute care providers. (Id. ¶ 225.)
 Defendants have deprived all of the Named Plaintiffs of necessary mental health or educational services. (Compl. [DE #1] ¶¶ 21, 34, 46, 57, 68, 83, 94, 104, 136.) Each of the Named Plaintiffs has been prescribed psychotropic medications, and not provided with adequate counseling, therapy, and treatment that meet reasonable professional standards. (Id. ¶¶ 29, 40, 47, 50, 63, 78-79, 90, 98, 115, 137.) The academic progress of M.D., D.I., S.A., D.P., and T.C. has been hampered by frequent placement moves. (Id. ¶¶ 30, 42, 64, 121, 136.) Defendants‟ failure to provide Plaintiff Children with necessary services is the result of their failure to maintain an adequate array of services, exacerbated by poor matching of children to inadequate placement options. (Id. ¶ 234.)
 Defendants have separated Z.H., A.M., and D.P. from their respective siblings, neither placing them together nor affording them reasonable visits, even when such separation served no therapeutic purpose, and even though federal and state policy require that siblings be placed together except under limited circumstances. (Compl. [DE #1] ¶¶ 46, 70, 107.) Defendants have also placed A.M., K.E., and T.C. far from their families, preventing visits. (Id. ¶¶ 76, 80, 100, 133-34.) DFPS‟s separation of siblings and failure to provide visits for children with their families when appropriate results from an inadequate array of placement options as well as an overburdened workforce that does not timely and adequately assess children‟s needs, does not make timely quality visits with children, and fails to plan for children‟s permanent placements in suitable family homes. (Id. ¶ 241.)
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 S.A., A.M., K.E., D.P., and T.C. have each been in the state‟s custody for at least seven years. (Compl. [DE #1] ¶¶ 57, 68, 93, 104, 125.) These and other Plaintiff Children languish in the state‟s PMC and are likely to leave foster care only by aging out, because Defendants fail to adequately assess children‟s needs or to plan appropriately for their permanent placements in suitable family homes. (Id. ¶ 258.)
The Named Plaintiffs‟ claims arise from the same factual and legal foundations as do the claims of other members of the class: the alleged failures of the state‟s foster care system. See DeHoyos, 240 F.R.D. at 282; see also Neff v. VIA Metro. Transit Auth., 179 F.R.D. 185, 194 (W.D. Tex. 1998). Moreover, Named Plaintiffs and Plaintiff Children all premise liability for DFPS‟s systemic failures on the same constitutional and statutory grounds. Cf. Mullen, 186 F.3d at 625 (finding typicality where “the proposed class members‟ legal and remedial theories appear to be exactly the same”). Accordingly, the typicality requirement is satisfied.
4. Adequacy of Representation: Named Plaintiffs and Their Counsel Are Adequate Representatives.
Rule 23(a)(4) requires that Named Plaintiffs fairly and adequately protect the Class‟s interests. In determining adequacy, a court must consider “the zeal and competence of the representative‟s counsel and [] the willingness and ability of the representative to take an active role in and control the litigation and to protect the interests of absentees,” Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir. 1982), as well as any “conflicts of interest between the named plaintiffs and the class they seek to represent,” Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 314 (5th Cir. 2007) (citations and internal quotation marks omitted). Named Plaintiffs satisfy each of these requirements.
a. Adequacy of Named Plaintiffs. Named Plaintiffs‟ proposed Next Friends, who sue on their behalf, are dedicated to the Named Plaintiffs‟ best interests, familiar with this litigation, understand why the Named Plaintiffs seek relief, and are willing and able to pursue this case on the Named Plaintiffs‟ behalf.
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(Compl. [DE #1] ¶¶ 143-51, 161.) See Sam M. v. Carcieri, 608 F.3d 77, 92 (1st Cir. 2010) (defining these as “the hallmarks a Next Friend should bear”).
Moreover, there are no conflicts of interest between Named Plaintiffs and the other Class members. Cf. James, 254 F.3d at 571 (“Differences between named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts between the named plaintiffs‟ interests and the class members‟ interests.”) (internal quotation marks and citations omitted). Named Plaintiffs seek only declaratory and injunctive relief ordering Defendants to develop and maintain a system that will ensure that all Class members receive the protection, care, and services to which they are legally entitled. (See Compl. [DE #1] ¶ 355.) For example, Named Plaintiffs seek to be assigned DFPS caseworkers whose overall caseloads meet professional standards and to be placed in homes or facilities that are licensed or verified and that meet professional standards. (Id.) Accordingly, Named Plaintiffs “seek relief which would benefit all members of the proposed class.” See DeHoyos, 240 F.R.D. at 283, 316 (discussing Marisol A., 126 F.3d at 378, and noting that there was no conflict in Marisol between the class members and class representatives because “all class members shared [the] same interest in obtaining broad-based relief which would dramatically improve [the] quality of all services to beneficiaries of [the] child welfare system”).
b. Zeal and Competency of Named Plaintiffs’ Counsel. Named Plaintiffs are represented by counsel recognized for their extensive experience in complex litigation, including class actions and civil rights litigation. (Compl. [DE #1] ¶¶ 16263.) Named Plaintiffs are represented by Canales & Simonson, P.C., a Texas law firm based in Corpus Christi with substantial experience with complex litigation in federal courts. (See Ex. C [firm resume of Canales & Simonson, P.C.].) Named Plaintiffs are also represented by Haynes
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and Boone, LLP, an international law firm with offices in multiple Texas cities, and by Yetter Coleman LLP, a law firm with offices in Houston and Austin. (See Ex. D [firm resume of Haynes and Boone, LLP].; Ex. E [firm resume of Yetter Coleman LLP].) Both firms have extensive experience litigating class actions and other complex litigation. In addition, Named Plaintiffs are represented by attorneys from Children‟s Rights, a non-profit organization with extensive experience in complex class action litigation involving child welfare systems. (See Ex. F [Declaration of Marcia Robinson Lowry (the “Lowry Decl.”)] ¶¶ 2-5.) Children‟s Rights attorneys have served as class counsel on much of the major child welfare litigation in the United States. (See id. ¶¶ 2-5.) Named Plaintiffs‟ counsel have identified and thoroughly investigated all claims in this action and have committed sufficient resources to thoroughly and expeditiously bring this action. (See id. ¶¶ 6, 10-11.) C. The Class, Which Seeks Only Declaratory and Injunctive Relief for Civil Rights
Violations, Satisfies Rule 23(b)(2)’s Requirements. In addition to satisfying the threshold requirements of Rule 23(a), the Class also satisfies the requirements of Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate relating to the class as a whole.” FED. R. CIV. P. 23(b)(2). The archetypal case for Rule 23(b)(2) certification is one where, as here, the class challenges policies or practices that allegedly violate a large group‟s civil rights. See Penson v. Terminal Transport Co., Inc., 634 F.2d 989, 993 (5th Cir. 1981) (Rule 23(b)(2) “was intended primarily to facilitate civil rights class actions, where the class representatives typically sought broad injunctive or declaratory relief”); Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975), disapproved on other grounds, Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978) (“the 23(b)(2) class action is an effective weapon for an across-the-board attack against systemic abuse
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. . . [and is particularly] useful[] in the civil rights area”); see also Neff, 179 F.R.D. at 195 (“[a] class of cases found to fall squarely within the category authorized by subpart (b)(2) are civil rights cases which seek „broad declaratory or injunctive relief for a large and amorphous class‟”) (citations omitted); Murillo v. Musegades, 809 F. Supp. 487, 503 (W.D. Tex. 1992) (noting that a suit for injunctive relief to stop violations of the constitutional rights of a class “is precisely the type of remedial action for which Rule 23(b)(2) was designed”).
Fifth Circuit courts “readily” certify classes seeking, as Named Plaintiffs here do, only injunctive or declaratory relief. See Allison, 151 F.3d at 411. Those classes involve “uniform group remedies,” and therefore do not require “a specific or time-consuming inquiry into the varying circumstances and merits of each class member‟s individual case.” Id. at 414. Indeed, the Rule 23(b)(2) requirement is “almost automatically fulfilled in actions where the relief sought is primarily injunctive.” Neff, 179 F.R.D. at 195. And “because of the group nature of the harm alleged and the broad character of the relief sought, the (b)(2) class is, by its very nature, assumed to be a homogeneous and cohesive group with few conflicting interests among its members.” Allison, 151 F.3d at 413. As a result, “proposed (b)(2) classes need not withstand a court‟s independent probe into . . . the degree to which common issues predominate over those affecting only individual class members, as (b)(3) classes must.” Id. at 414. Because Named Plaintiffs seek only injunctive and declaratory relief on behalf of the Class, they are prime candidates for Rule 23(b)(2) certification.
Fifth Circuit courts have repeatedly certified Rule (b)(2) classes that, as in this case, seek injunctive relief remedying universal violations of federal constitutional and statutory law. See, e.g., James, 254 F.3d at 573; Lightbourn, 118 F.3d at 425-26; DeHoyos, 240 F.R.D. at 284-85; Neff, 179 F.R.D. at 196. In this case, as noted above at § III.B.4.a, Plaintiffs also seek such
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injunctive relief, for instance, relief requiring Defendants to limit DFPS workers‟ caseloads and to place Plaintiff Children in homes or facilities that are licensed or verified and that meet professional standards. (Compl. [DE #1] ¶ 355.) In similar lawsuits challenging violations of foster children‟s rights, courts have routinely certified classes seeking systemic relief to address chronic dysfunction. Thus, for instance, the Tenth Circuit certified a class of “all children who are or will be in the legal custody of [the Oklahoma Department of Human Services] due to a report of suspicion of abuse or neglect or who are or will be adjudicated or deprived due to abuse or neglect.” D.G., 594 F.3d at 1192. The court held that this class met Rule 23(b)(2) requirements where foster children requested relief including an injunction limiting caseworker caseloads, noting that “such an injunction applies to the proposed class as a whole without requiring differentiation between class members.” Id. at 1201. Similarly, the Third Circuit has certified a similar class, noting that, even if “not all of the orders issued will immediately benefit every plaintiff, every plaintiff will benefit from relief designed to ensure [the foster care agency‟s] compliance with the applicable standards.” Baby Neal, 43 F.3d at 64; see also Marisol A., 126 F.3d at 378 (affirming certification of class seeking broad declaratory or injunctive relief); Olivia Y., slip. op. at 7, 10 (Ex. A) (requirements of Rule 23(b)(2) satisfied where class of foster children sought declaratory and injunctive relief with respect to the class as a whole).
In sum, Named Plaintiffs seek injunctive and declaratory relief on behalf of the Class to address Defendants‟ failures to properly manage the DFPS foster care system. Those failures harm and place at risk of harm all Class members, and the injunctive and declaratory relief the Class seeks would have class-wide scope and effect. The proposed Class therefore satisfies Rule 23(b)(2).
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D. Class Certification Would Promote Judicial Economy and Cost Efficiency. “[T]he class action device exists primarily, if not solely, to achieve a measure of judicial
economy . . . preserv[ing] the resources of both the courts and the parties by permitting issues affecting all class members to be litigated in an efficient, expedited, and manageable fashion.” Allison, 151 F.3d at 410. The need for those economies is particularly apparent in this case. Each member of the Class has suffered or will suffer harm and imminent risk of harm resulting from DFPS‟s failure to maintain a child welfare agency that can provide safe and adequate living situations for Plaintiff Children, meet their service needs, adequately monitor their safety, and develop and implement plans to secure permanent families for them. But each of the thousands of Class members, as a child in state custody, faces profound impediments to bringing an individual federal case challenging DFPS‟s agency-wide deficiencies.
Rule 23 remedies this situation. “The class action is one of the few legal remedies the small claimant has against those who command the status quo.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186 (1974). And class actions enable individuals with legitimate claims but small resources to access the courts. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980) (“Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits . . . aggrieved persons may be without any effective redress unless they may employ the class-action device.”).
Certifying the Class would also promote judicial economy. Numerous individual suits attacking department-wide issues would require the Court to expend considerable resources to hear substantially the same evidence in each case. Certifying the Class would therefore conserve judicial resources by litigating the common questions of fact and law in a single proceeding.
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E. Named Plaintiffs’ Counsel Will Fairly and Adequately Represent the Class’s Interests and Should Be Appointed Class Counsel. An order that certifies a class action must appoint class counsel under Rule 23(g). See
FED. R. CIV. P. 23(c)(1)(B). Rule 23(g) mandates that class counsel “fairly and adequately represent the interests of the class.” FED. R. CIV. P. 23(g)(4). In making this determination, courts should consider four factors: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel‟s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel‟s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. FED. R. CIV. P. 23(g)(1)(A).
In this case, as noted above at § III.B.4.b, Named Plaintiffs‟ counsel are eminently qualified to represent the Class‟s interests fairly and adequately. Named Plaintiffs‟ counsel have identified and thoroughly investigated all claims in this action and have committed sufficient resources to thoroughly and expeditiously bring this action. (See Ex. F [Lowry Decl.] ¶¶ 10-11.) In addition, attorneys at Children‟s Rights and the law firms of Canales & Simonson, Haynes and Boone, and Yetter Coleman possess extensive experience in litigating class actions and other complex litigation. (Id. ¶¶ 7-9.) Moreover, the attorneys at Children‟s Rights possess extensive experience in complex class action litigation involving child welfare systems. (See id. ¶¶ 2-5.) Named Plaintiffs‟ counsel therefore satisfy Rule 23(g)‟s standard for appointment of class counsel.
IV. CONCLUSION As demonstrated above, this action satisfies the requirements of Rule 23(a) and Rule 23(b)(2). Named Plaintiffs request that the Court enter an order certifying this action as a class action for all purposes, with the Class composed of “all children who are now and those who will
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be in the Permanent Managing Conservatorship of DFPS.” Named Plaintiffs also request an

order appointing Named Plaintiffs‟ counsel as class counsel under Rule 23(g). Named Plaintiffs

further request that the Court hear oral argument with respect to this Motion.

DATED: April 5, 2011

Respectfully submitted:

/s/ J.A. “Tony” Canales J.A. “Tony” Canales State Bar No. 03737000 S.D. Tex. Bar No. 1163 Hector Canales State Bar No. 24005961 S.D. Tex. Bar No. 29396 Patricia C. Bell State Bar No. 00793455 S.D. Tex. Bar No. 19506 CANALES & SIMONSON, P.C. 2601 Morgan Avenue Corpus Christi, Texas 78467-5624 Phone: (361) 883-0601 Facsimile: (361) 884-7023 tonycanales@canalessimonson.com hacanales@canalessimonson.com pmcanales@canalessimonson.com Attorneys-in-Charge
Barry F. McNeil State Bar No. 13829500 S.D. Tex. Bar No. 14914 R. Thaddeus Behrens State Bar No. 24029440 S.D. Tex. Bar No. 916025 David Dodds State Bar No. 00790595 S.D. Tex. Bar No. 35024 Amelia J. Cardenas State Bar No. 24056681 S.D. Tex. Pro hac applicant HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Phone: (214) 651-5000 Facsimile: (214) 200-0535

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Case 2:11-cv-00084 Document 15 Filed in TXSD on 04/05/11 Page 31 of 32
barry.mcneil@haynesboone.com thad.behrens@haynesboone.com david.dodds@haynesboone.com amelia.cardenas@haynesboone.com
R. Paul Yetter State Bar No. 22154200 S.D. Tex. Bar No. 3639 Dori K. Goldman State Bar No. 24041274 S.D. Tex. Bar No. 591632 Christopher D. Porter State Bar No. 24070437 S.D. Tex. Bar No. 1052367 April L. Farris State Bar No. 24069702 S.D. Tex. Pro hac applicant YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 Facsimile: (713) 632-8002 pyetter@yettercoleman.com dgoldman@yettercoleman.com cporter@yettercoleman.com afarris@yettercoleman.com
Marcia Robinson Lowry (pro hac applicant) Stephen A. Dixon (pro hac applicant) Olivia Sohmer (pro hac applicant) Jessica Polansky (pro hac applicant) Patrick Almonrode (pro hac applicant) CHILDREN‟S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 mlowry@childrensrights.org sdixon@childrensrights.org osohmer@childrensrights.org jpolansky@childrensrights.org palmonrode@childrensrights.org Of Counsel
Attorneys for Plaintiffs and Proposed Class
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CERTIFICATE OF CONFERENCE On Monday, April 4, 2011, counsel for Plaintiffs conferred with James C. Todd, counsel for Defendants, by telephone regarding this Motion. Mr. Todd indicated that the Defendants will likely oppose this Motion.
/s/ Barry F. McNeil CERTIFICATE OF SERVICE I hereby certify that on this 5th day of April, 2011, I served the foregoing document by Certified Mail, Return Receipt Requested on the following counsel, who has not yet appeared in this action: James C. Todd (counsel for Defendants) Office of the Attorney General PO Box 12548 Capital Station Austin, TX 78711-2548
/s/ J.A. “Tony” Canales
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
RICK PERRY, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-11-84 § § § §

ORDER

On this day came on to be considered Defendants’ Rule 12(b)(1) Motion to

Dismiss. (D.E. 43.) For the reasons stated herein, Defendants’ Rule 12(b)(1) Motion to

Dismiss is DENIED. (D.E. 43.)

I. Jurisdiction

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331 (federal question), as Plaintiffs bring claims under 42 U.S.C. § 1983. (D.E. 1 at 9.)

II. Factual and Procedural Background

Plaintiffs filed this civil rights action in this Court on March 29, 2011, naming as

defendants Rick Perry (Governor of Texas), Thomas Suehs (Executive Commissioner of

the Texas Health and Human Services Commission), and Anne Heiligenstein

(Commissioner of the Texas Department of Family and Protective Services). (D.E. 1.)

The Court subsequent certified this lawsuit as a class action, consisting of “[a]ll children

who are now and all those who will be in the Permanent Managing Conservatorship

[(‘PMC’)] of the Texas Department of Family and Protective Services [(‘DFPS’)].”

(D.E. 49 at 34.) Plaintiffs seek injunctive and declaratory relief to remedy what they

claim is Defendants’ operation of the Texas foster care system in violation of certain

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federal constitutional mandates.1 As explained in the Court’s Order on class certification,
Plaintiffs complain that children within PMC custody are subjected to a variety of harms
(such as repeated placements, over-medication, abuse, neglect, and deprivation of
familial relationships with siblings) due to deficiencies in the Texas foster care system.
(D.E. 49 at 1-2.) Plaintiffs claim that they are “brought into state custody because they
were abused and neglected at home, but then are left to languish for years, too many of
them suffering further abuse and neglect while the state does little to seek and secure
permanent homes for them.” (D.E. 15 at 7.) Plaintiffs bring suit under 42 U.S.C. § 1983,
and claim violations of substantive and procedural due process, along with certain rights
of familial association, derived from the First, Ninth, and Fourteenth Amendments to the
U.S. Constitution. (D.E. 1 at 83-85.)
On May 24, 2011, Defendants filed their Rule 12(b)(1) Motion to Dismiss,
contending that this lawsuit “would effectively require the Court to takeover and
administer Texas’ foster care system despite the fact that regular and competent oversight
of Texas’ foster children has already been entrusted to the Texas district courts by the
Texas Legislature.” As such, they request that this Court abstain from exercising jurisdiction over this action pursuant to the Younger and Burford doctrines,2 so that “each
of the named Plaintiffs [can] seek the individualized relief he or she desires in the Texas
courts.” (D.E. 43 at 10.) Plaintiffs responded on June 14, 2011. (D.E. 55.)
1 For example, Plaintiffs request a permanent injunction “[r]equiring Defendants to ensure that all children in the plaintiff class are assigned DFPS workers whose overall caseloads do not exceed the caseload standards established by the Child Welfare League of America and the Council on Accreditation;” “[r]equiring that all substitute care placements be licensed or verified according to state law;” “[p]rohibiting Defendants from placing Plaintiff Children in foster homes, foster group homes, emergency shelters, group residential operations, or residential treatment centers that do not meet the standards for such homes or facilities set by the Child Welfare League of America and the Council on Accreditation;” and “[r]equiring Defendants to ensure that their practices and procedures for monitoring and oversight of privately operated placement facilities protect the safety of Plaintiff Children.” (D.E. 1 at 86.) 2 Younger v. Harris, 401 U.S. 37 (1971) and Burford v. Sun Oil Co., 319 U.S. 315 (1943).
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III. Discussion
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s subject
matter jurisdiction.3 Where a Rule 12(b)(1) motion to dismiss is filed, “[a] trial court
may find that subject matter jurisdiction is lacking based on (1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed
facts.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011).4
B. Younger Abstention
1. Background
Federal courts have a “virtually unflagging obligation” to exercise jurisdiction
granted to them. Deakins v. Monaghan, 484 U.S. 193, 203 (1988) (quoting Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 817 (1976)). Certain
doctrines, however, require abstention in “extraordinary circumstances.” Deakins, 484
3 There is some dispute as to whether a Younger or Burford abstention argument should be raised under Rule 12(b)(1) or Rule 12(b)(6). The Fifth Circuit has explained, “[f]ederal courts do not abstain on Younger grounds because they lack jurisdiction; rather, Younger abstention reflects a court’s prudential decision not to exercise [equity] jurisdiction which it in fact possesses.” Weekly v. Morrow, 204 F.3d 613, 614-15 (5th Cir. 2000) (internal quotation marks omitted). Nevertheless, Younger abstention is “often raised through a Rule 12(b)(1) motion,” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1350 at 96–100, and the parties do not dispute Defendants’ use of Rule 12(b)(1) in this context. This is also consistent with recent practice in this District. See Shipula v. Tex. Dep’t of Fam. & Protective Servs., 2011 WL 1882521, at *7 (S.D. Tex. May 17, 2011) (addressing Younger abstention doctrine under Rule 12(b)(1)). Courts also favor Rule 12(b)(1) when evaluating Burford abstention. See, e.g., High Peak Partners, LLC v. Bd. of Supervisors of Prince George Cty., 2008 WL 1733605, at *3 (E.D. Va. Apr. 14, 2008); Hanlin Group, Inc. v. Power Authority of State of New York, 703 F. Supp. 305, 306 (S.D.N.Y. 1989) (“This motion is granted pursuant to Fed. R. Civ. P. 12(b)(1) on the ground that this Court refuses jurisdiction over this action pursuant to the Burford abstention doctrine.”). This Court will therefore evaluate both arguments under Rule 12(b)(1). 4 Defendants have submitted voluminous exhibits with their Motion (as have Plaintiffs with their response). As such, the Court understands Defendants to make a “factual” rather than “facial” attack to jurisdiction. See, e.g., Shipula, 2011 WL 1882521, at *3 (“A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. In a facial attack, allegations in the complaint are taken as true. If it is a factual attack, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction.”) (citations omitted).
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U.S. at 203. One such abstention doctrine originates from the Supreme Court’s decision in Younger v. Harris. In Younger, the Supreme Court reversed a district court decision enjoining a state district attorney (Younger) from prosecuting Harris under the California Criminal Syndicalism Act (which Harris claimed ran afoul of certain constitutional rights) because that injunction violated a “national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.” Younger v. Harris, 401 U.S. 37, 39-41 (1971). As the Supreme Court has subsequently explained, Younger abstention “is reinforced by . . . an aspect of federalism which we have described as ‘the notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.’ Central to Younger was the recognition that ours is a system in which ‘the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.’” Huffman v. Pursue, Ltd., 420 U.S. 592, 601 (1975) (quoting Younger, 401 U.S. at 43-45).
The Fifth Circuit has noted that, “[a]lthough Younger abstention originally applied only to criminal prosecutions, it also applies when certain civil proceedings are pending, if the State’s interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government.” Health Net, Inc. v. Wooley, 534 F.3d 487, 494 (5th Cir. 2008) (citations omitted). Abstention under Younger v. Harris “is generally deemed appropriate [when]
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assumption of jurisdiction by a federal court would interfere with pending state proceedings, whether of a criminal, civil, or even administrative character.” Louisiana Debating and Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995). In determining whether Younger abstention is warranted, courts apply a three factor test derived from Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S. 423, 432 (1982). The Middlesex factors are: “(1) the dispute must involve an ‘ongoing state judicial proceeding,’ (2) an important state interest in the subject matter of the proceeding must be implicated, and (3) the state proceedings must afford an adequate opportunity to raise constitutional challenges.” Texas Ass’n of Business v. Earle, 388 F.3d 515, 519 (5th Cir. 2004) (citing Wightman v. Tex. Supreme Ct., 84 F.3d 188, 189 (5th Cir. 1996)); see Middlesex, 457 U.S. at 432. “When these requirements are met, the federal district court has no choice but to dismiss the federal action; it may not abstain, nor may it stay the federal action pending resolution of the state proceedings.” Nall v. Stringer, 4 F.3d 989, 1993 WL 360771, at *3 (5th Cir. 1993). “[A] district court’s decision to abstain [is reviewed] for abuse of discretion, provided that the elements for Younger abstention are present.” Earle, 388 F.3d at 518.
Defendants contend that Younger abstention is appropriate here. In essence, they argue that Texas district courts exercise continuing jurisdiction over each child in foster care, and this federal class action would interfere with that jurisdiction. Defendants also cite relevant precedents to have applied Younger in similar contexts, and contend that the Middlesex factors are satisfied. (D.E. 43.) In response, Plaintiffs point out that Texas receives federal funding and submits to federal oversight; as such, this case does not offend principles of comity and federalism. They also contend that none of the
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Middlesex factors are satisfied, and that numerous precedents around the nation support rejection of Younger abstention in the context of cases challenging state foster care systems. (D.E. 55.)
The Court begins with a review of the Middlesex factors, then turns to relevant precedent and other arguments the parties raise.
2. Middlesex Factors The parties dispute whether the Middlesex factors are satisfied, thus warranting Younger abstention. Defendants contend that all three factors are satisfied; Plaintiffs contend that none are. The Court addresses each in turn.
a. First Middlesex Factor i. Ongoing State Judicial Proceeding
The first consideration under Middlesex is whether the dispute involves an “ongoing state judicial proceeding.” Earle, 388 F.3d at 519. “State judicial proceedings” generally include criminal, civil, and “administrative proceedings that are ‘judicial’ in nature.” Id. at 520.
In support of their position on this point, Defendants describe in detail the legal procedures governing foster care in Texas, which themselves are not in dispute. In essence, the Texas district court to which a child’s suit affecting the parent child relationship (“SAPCR”) is assigned has a “continuing statutory duty to oversee” the child’s case. (D.E. 43 at 10 (citing Tex. Fam. Code §§ 101.032; 155.001(a); 161.001 et seq.; 262.001 et seq.; 263.001 et seq.; 264.001 et seq.).) This oversight begins with a hearing, held within 14 days after a child is removed from his parent’s custody, and once a child is placed with DFPS, a “service plan” for the child is developed, with a goal of
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finding a permanent placement for the child. The court must review that plan. (D.E. 43 at 11 (citing Tex. Fam. Code §§ 263.304 - .305; 263.101; 263.105(a); 263.105(b); 263.102; 263.106.)) DFPS also prepares a “permanency plan” for each child, and the district court reviews DFPS’s “permanency progress reports” in relation to the permanency plan at regular intervals. (D.E. 43 at 11 (citing Tex. Fam. Code §§ 263.3025; 263.304; 263.305; 263.306; 40 Tex. Admin. Code §§ 700.1202; 700.1205).). If parental rights to a child are terminated, and DFPS is named as the child’s managing conservator, the court holds placement reviews every six months until the child is adopted or reaches adulthood. Persons interested in the child’s welfare are provided notice, and the child must also attend the hearing, unless excused. (D.E. 43 at 11-12 (citing Tex. Fam. Code §§ 263.501(a), (b), (d), (f).) Placement review reports are prepared by DFPS and filed with the court prior to the hearing. This report reviews the placement, considers its appropriateness, addresses other services, and makes other findings. At the hearing, the court must decide whether the child’s placement is safe and appropriate to the child’s needs, whether the child is receiving needed services, adoption issues, and other considerations. Appeals of district court decisions are allowed in certain circumstances. (D.E. 43 at 13-14 (citing Tex. Fam. Code §§ 263.502(a), (c); 263.503; § 201.015; In re Tex. Dep’t of Fam. & Protective Servs., Relator, 255 S.W.3d 613 (Tex. 2008); In re Cochran, 151 S.W.3d 275 (Tex. App. – Texarkana 2004).) Thus, Defendants conclude that Texas courts “have authority over a child’s SAPCR from the moment the suit is filed until the child is either adopted or becomes an adult. Within that authority, the court reviews the child’s special needs and circumstances, listens to any requests of the child’s caseworker, attorney ad litem, or other person with an interest in the child, and
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speaks directly to the child to ascertain what is in his or her best interests.” (D.E. 43 at 14.) Defendants also point to certain standing orders adopted in some Texas counties to address cases in which DFPS is a child’s conservator. These standing orders prescribe certain procedures to be followed under particular circumstances, such as a change in a child’s level of care, prescription of new medications, and other significant events. (D.E. 43 at 15-16; see also D.E. 43-2 (Bexar County Standing Order); D.E. 43-3, 43-4 (Travis County Standing Order); D.E. 43-5 (Nueces County Standing Order).) In light of these procedures, Defendants conclude that this lawsuit implicates ongoing state judicial proceedings.
In response, Plaintiffs first note that the Court’s exercise of jurisdiction will not undermine federalism and comity principles, since Texas participates in the federal Title IV-E program,5 under which it receives federal funds in exchange for submitting its foster care system to federal law and policy. Specifically, under the “2009 State Plan for Title IV-E of the Social Security Act,” executed between the U.S. Department of Health and Human Services (“HHS”) and Texas, the state elected to subject the administration of its child welfare system to the regulatory and policy oversight of HHS “in exchange for the uncapped flow of federal entitlement dollars under the Title IV-E program.” In light of this agreement, the Court’s exercise of jurisdiction will not offend notions of comity or federalism, Plaintiffs argue. (D.E. 55 at 8-9.) Plaintiffs further contend that this class action will not interfere with any ongoing state proceedings, as the only ongoing proceedings at issue are SAPCR enforcement proceedings (or placement review hearings), which primarily review DFPS actions in relation to the foster child at issue.
5 This refers to Title IV-E of the Social Security Act, 42 U.S.C. § 670 et seq.
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These “periodic state court reviews of executive action . . . are not the sort of ongoing
proceedings subject to Younger.” (D.E. 55 at 13.)
The Court does not find that the ongoing state proceedings at issue here satisfy the
first Middlesex factor. The children in this class action have already (or will be) placed
in the state PMC. When DFPS is “named as a child’s managing conservator in a final
order,” further “placement review hearings” are conducted on a regular basis, but such
hearings focus on a review of DFPS decisions, such as whether the child’s placement is
safe, whether it is in the “least restrictive environment,” and other issues. Tex. Fam.
Code §§ 263.501; 263.503. The Supreme Court in New Orleans Public Service, Inc. v.
Council of the City of New Orleans, et al., held that Younger abstention does not extend
to judicial proceedings that, like those at issue here, are focused solely upon review of
executive actions. The Court explained:
Although our concern for comity and federalism has led us to expand the protection of Younger beyond state criminal prosecutions, to civil enforcement proceedings, and even to civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions, it has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States.
491 U.S. 350, 367-68 (1989) (emphasis added; citations omitted) (“NOPSI”); see also
Connor B. ex rel. Vigurs v. Patrick, __ F. Supp. 2d ___, 2011 WL 31343, at *5 (D. Mass.
Jan. 4, 2011) (“Where, as here, the state court proceeding is limited to a review of
executive action, the Supreme Court has made clear that Younger abstention is
inappropriate.”). Further, the Fifth Circuit in Earle explained that while Younger extends
beyond criminal proceedings, “[i]t is the criminal law arena where the federal courts’
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deference to state courts has been most pronounced. Other proceedings have been found to be due the same deference because of analogy to, or nexus with, criminal proceedings.” Earle, 388 F.3d at 520 (emphasis added; citations omitted). The ongoing state proceedings here, limited to a review of DFPS actions, are far from the type of “ongoing state judicial proceedings” normally subject to Younger abstention.
ii. Interference with Judicial Proceedings Even if the proceedings at issue here could constitute “ongoing state judicial proceedings,” there is no indication that this lawsuit would interfere with those proceedings. Louisiana Debating and Literary Ass’n, 42 F.3d at 1490. Defendants contend that any court order granting Plaintiffs’ requested relief would unduly interfere with their ongoing state proceedings, in violation of Younger. Defendants point to the cases of D.P. and S.A., two of the named Plaintiffs, as examples of circumstances in which a federal court injunction would “duplicate and interfere” with the SAPCR courts’ ongoing authority in the state court proceedings. In these cases, Defendants argue that the state courts have “entered orders that are in the best interests of the children whose SAPCRs are before them,” and the requested injunctive relief would interfere with those state court decisions. (D.E. 43 at 29-32.) Defendants also object to Plaintiffs’ request for special expert panels to review certain types of cases, which they state would create “de facto appellate courts” to second guess state court decisions. Finally, Defendants note that Plaintiffs’ requested system-wide relief (reducing caseworker caseloads, establishing certain standards for foster care homes, and other requests) would in effect “control the very decisions that are at the heart of the state court’s continuing jurisdiction,” and would override the SAPCR courts’ decisions. (D.E. 43 at 32-35.) Plaintiffs take issue with
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Defendants’ position that the class action will interfere with a child’s individual periodic placement review hearings, as Plaintiffs’ goal is to correct “systemic failures of the executive agency” in the foster care context, and seek to compel executive agency officials to operate the system consistent with constitutional obligations. (D.E. 55 at 1315.)
The Court concludes that “interference” in the context of Younger is not present here. As noted elsewhere, Plaintiffs seek broad injunctive and declaratory relief aimed at improving the Texas foster care system as a whole, not to interrupt, alter, or in any other manner change a particular state court placement review decision. The relief sought is directed against executive branch officials in the DFPS, not the judiciary. There is no evidence of interference with ongoing state judicial proceedings, warranting abstention. Many other courts to have considered similar arguments have arrived at the same conclusion. See, e.g., Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543, 570 (S.D. Miss. 2004) (“In the case at bar, the court still would be hard-pressed to conclude that any specific relief plaintiffs seek in this action would necessarily interfere with ongoing youth court proceedings. Or stated another way, it is not apparent that all the relief plaintiffs might request would interfere, either directly or indirectly, with ongoing youth court proceedings.”); Dwayne B. v. Grandholm, 2007 WL 1140920, at *5-7 (E.D. Mich. Apr. 17, 2007) (“While it is true that Michigan has in place a juvenile court system that sets out procedures for bringing and maintaining a child under that court’s jurisdiction and there may be some ongoing juvenile court proceedings for individual foster care children, this lawsuit does not seek to interfere with any such proceedings. The relief sought here is not directed at the juvenile courts. It is directed at the executive
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branch.”); Brian A. ex rel. Brooks v. Sundquist, 149 F. Supp. 2d 941, 957 (M.D. Tenn. 2000) (“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.”).
Defendants note two of the Plaintiffs’ Children’s court files, D.P. and S.A., as examples of situations where injunctive relief by this Court “would duplicate and interfere with the SAPCR courts’ ongoing authority [in] the state court proceedings.” (D.E. 43 at 29-32.) The Court recognizes that the SAPCR courts have conducted detailed reviews of each child’s placement and condition since entering foster care, and have “enter[ed] orders that are in the best interests of the children whose SAPCRs are before them.” (D.E. 43 at 31.) These court files, consisting of Permanency Plan and Permanency Progress Reports, Placement Review Reports, Placement Review Orders, and other documents, evaluate the appropriateness and safety of the child’s placement, educational development, medical status, as well as plans for the future. (D.E. 43-6; D.E. 43-7; D.E. 43-8; D.E. 43-9 (D.P. files); D.E. 43-10 (S.A. files); D.E. 43-11 (K.E. files); D.E. 43-12 (Z.H. files); D.E. 43-13 (D.I. files).) Upon reviewing these files, however, the Court does not agree with Defendants that this lawsuit would interfere with these ongoing state court proceedings. As noted earlier, this lawsuit seeks to improve the standards for all children in state foster care and protect foster children’s constitutional rights, seeking systemic changes that would improve the foster care system for all children. Such a lawsuit would ultimately aid the ongoing state proceedings, not interfere
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with them. Moreover, the Court notes that the state reports focus upon the specifics of
each child’s placement and whether his or her needs are being met; they do not address
whether the child’s treatment in foster care satisfies constitutional demands, the central
concern of this lawsuit.
As this lawsuit focuses on systemic problems and seeks systemic solutions, it would not “duplicate” the individualized reviews that occur in the state courts.6 The
Court concludes that the first Middlesex factor is not satisfied.
b. Second Middlesex Factor
The second Middlesex factor requires that “an important state interest in the
subject matter of the proceeding must be implicated.” Earle, 388 F.3d at 519. In this
regard, Defendants argue that “Texas has determined that establishment of a stable,
loving home for a child is not only an important governmental interest but a compelling
one,” and the state’s “efforts to protect children from abuse and neglect sufficiently
implicate important state interests to justify Younger abstention.” (D.E. 43 at 23-24.)
Plaintiffs responds that this suit does not “invade the province of the Texas state courts to
enforce state law defining the parent-child relationship,” but rather seeks to determine
“whether DFPS is administering a system capable of delivering care and protection to the
Plaintiff Class of PMC wards consistent with constitutional mandates,” a question
6 Defendants also reference Plaintiffs’ request for “two special expert panels” to review cases of class members with four or more placements and those who have been in PMC for more than two years, and argue that these expert panels would sit as “de facto appellate courts over the state district courts to review, second-guess, and ‘correct’ the state courts’ decisions.” (D.E. 43 at 32-33.) In response, Plaintiffs explain that this requested relief “would occur within the executive agency as part of its duty to plan for the children in its custody, and would not involve the courts at all.” (D.E. 55 at 14 n.8.) As such, the Court does not believe that this requested relief raises serious concerns warranting Younger abstention. More generally, the Court does not believe that Plaintiffs’ requested relief would force it to act as an “‘appellate’ court with the power to override the SAPCR courts’ reasoned decisions,” as Defendants argue. (D.E. 43 at 34-35.) This is a mischaracterization of the relief sought, which seeks improvements to the state foster care system and does not lessen the state court’s authority in individual cases.
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“permeated by federal regulatory oversight and policy.” (D.E. 55 at 15.) In this regard, Plaintiffs again reference Title IV-E funds. (Id.)
There can be no real dispute that family relations and care for foster children are important state interests, under the second Middlesex factor. Moore v. Sims, 442 U.S. 415, 435 (1979) (“Family relations are a traditional area of state concern.”); Shipula, 2011 WL 1882521, at *9 (“In the context of a Younger abstention, family relations, child custody and child welfare are important state interests.”). The mere fact that federal oversight also exists does not lessen the importance of this state interest. Nevertheless, a finding in favor of Defendants on this factor alone is insufficient to warrant Younger abstention.
c. Third Middlesex Factor The final Middlesex factor requires that “the state proceedings . . . afford an adequate opportunity to raise constitutional challenges.” Earle, 388 F.3d at 519. As to this factor, Defendants argue that the SAPCR court is an adequate forum to hear Plaintiffs’ federal claims, as those courts are capable of hearing and resolving constitutional challenges. (D.E. 43 at 26-27.) In response, Plaintiffs concede that Texas state courts may consider constitutional issues, but argue that “the placement review hearings for children in PMC address only individual case circumstances and not the systemic failures the Plaintiff Class raises here.” (D.E. 55 at 15-17.) Although the Court does not doubt the capability of the judges in state court placement review hearings to address and vindicate constitutional rights, it cannot conclude that these hearings represent an “adequate opportunity” to raise the complex constitutional challenges and obtain broad-based injunctive and declaratory relief that
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Plaintiffs seek in this class action lawsuit. State court placement review hearings focus
on whether the particular child’s needs are being met, not overarching systemic concerns
or constitutional violations. See Tex. Fam. Code § 263.503(a). Even if Plaintiffs could
adequately raise their constitutional claims in state court placement review hearings, there
is no indication that they could seek or obtain the type of wide-ranging injunctive and
declaratory relief that they desire. As such, the Court concludes that the Plaintiffs would
not have an adequate opportunity to address the systemic problems in the foster care system that they seek to resolve with this lawsuit.7
Other courts have likewise concluded that Younger abstention is not warranted in
the face of limited state court review hearings. As the court in Connor B. explained,
“[a]lthough Defendants maintain that Plaintiffs in theory can assert federal claims in state
juvenile courts, they fail to explain how those courts present an adequate forum for
Plaintiffs’ claims. In fact, Massachusetts juvenile courts are tasked with handling
difficult questions of family law on an ad-hoc basis, not with crafting broad-based
injunctive relief that could potentially revamp an executive agency. They cannot and
do not afford Plaintiffs an adequate opportunity to seek relief for the systemic failures
alleged in the complaint. Thus, abstention is inappropriate.” 2011 WL 31343, at *10
(emphasis added); see also, e.g., LaShawn A. by Moore v. Kelly, 990 F.2d 1319, 1323
7 Defendants also cite Brown v. Jones, 473 F. Supp. 439 (W.D. Tex. 1979) and Shean v. White, 620 F. Supp. 1329 (W.D. Tex. 1985) as examples of cases in which federal courts applied Younger abstention to a Section 1983 lawsuit because the constitutional claims at issue could have been brought in the underlying SAPCR proceeding. (D.E. 43 at 25-26.) Plaintiffs in Brown brought suit in federal court to seek injunctive relief with respect to a pending state court proceeding that sought to terminate the plaintiffs’ parental rights. The court ultimately found Younger abstention warranted because the plaintiffs’ constitutional claims could have been brought in the state court proceeding. 473 F. Supp. at 449-50. In Shean, parents and their children brought an action alleging violations of constitutional rights resulting from the state’s placement of children in foster care. The court, without any substantial Younger analysis, acknowledged “it is far from clear that abstention is warranted,” and that abstention is a “close question,” but ultimately concluded it was warranted given the important state interest in domestic relations. 620 F. Supp. at 1332. These cases were not class actions, nor did they request the sweeping relief sought here. Neither supports the conclusion that Younger abstention is warranted in the particular circumstances of this case.
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(D.C. Cir. 1993) (“The Family Division is required to provide each child in the fostercare system with a review hearing either every six months or every year . . . . The review hearing . . . is clearly intended merely to reassess periodically the disposition of the child . . . . [T]here was no pending judicial proceeding in the District of Columbia which could have served 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 local statutory law.”); Brian A., 149 F. Supp. 2d at 957 (“[T]he Court finds that the juvenile courts of Tennessee are not more appropriate vehicles for adjudicating the claims raised in this putative class action.”) (internal quotation marks omitted) (citing LaShawn A.); People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 291 (S.D.N.Y. 2000) (“[T]he question of whether there has been abuse and neglect will predominate in child protective proceedings. Therefore, the Court does not believe that the Family Court can adequately consider plaintiffs’ claims in the context of a multifaceted lawsuit challenging a system-wide policy rather than ACS’s actions in individual cases. . . . [T]he nature of the proceedings require the court to focus on issues specific to the individual, and not on issues which potentially affect individuals not before the court.”). Consistent with these holdings, one commentator has explained, “[e]ven though all foster children in a plaintiff class are involved in ongoing state dependency court proceedings, federal courts recognize that those dependency proceedings do not provide avenues for the kind of systemic, class-wide relief usually sought in federal civil rights actions.” Erik Pitchal, Children’s Constitutional Right to Counsel in Dependency Cases, 15 Temple Political & Civil Rights L. Rev. 663, 680 n.109 (2006).
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In sum, this Court concludes that it should not abstain from adjudicating this class-action civil rights litigation based upon the mere possibility that such claims could have been brought in state placement review hearings instead. Abstention in these circumstances would be inappropriate. The Court finds that the Middlesex factors, in particular the first and third considerations, do not warrant abstention. Although foster care (and family relations in general) are important state interests, this alone cannot justify Younger abstention. This conclusion is supported by the weight of authority in this area, to which the Court turns next.
3. Precedents The parties agree that no Fifth Circuit precedent is directly on point. Instead, Defendants rely primarily upon two circuit court opinions, 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) and J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999), both of which applied Younger abstention in the context of “virtually identical challenges to foster care systems in other states,” and found that a federal lawsuit would improperly interfere with ongoing state court proceedings. (D.E. 43 at 18-20.) Defendants also cite Carson v. Heineman, 240 F.R.D. 456 (D. Neb. 2007), which followed the lead of 31 Foster Children and J.B. in concluding that Younger abstention was appropriate in a class action brought by Nebraska foster children, challenging inadequacies in that state’s system. (D.E. 43 at 20-21.) The “critical element” in each case, according to Defendants, was “whether every child in the system was subject to the state court’s ongoing jurisdiction, including bi-annual court review of each child’s placement,” and the Texas foster care system is nearly identical to those at issue in these cases, as is the relief sought. (D.E. 43 at 21-22.) Plaintiffs respond with numerous other
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cases that have rejected Younger abstention in circumstances similar to that before the Court, and also distinguish 31 Foster Children and J.B. (D.E. 55 at 17-20.)
Although it is undoubtedly true that every state system and every lawsuit differs in some respects, the overwhelming majority of cases have rejected Younger abstention in similar lawsuits challenging foster care systems, both at the circuit and district court level. For example, in Lashawn A., the plaintiffs brought a class action lawsuit on behalf of children who were in foster care under the supervision of the District of Columbia Department of Human Services (“DHS”), as well as children who were reported to be abused or neglected but were not yet in DHS custody. The plaintiffs alleged various deficiencies in the DHS system, and claimed constitutional violations. 990 F.2d at 132021. On appeal, the D.C. Circuit addressed Defendants’ position that the district court should have abstained under Younger. The court found that Younger abstention was not warranted because “there was no pending judicial proceeding in the District of Columbia which could have served 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 local statutory law.” Id. at 1323. As another example, in L.H. v. Jamieson, the Ninth Circuit considered a class action brought by “juveniles who have been adjudged dependent, neglected, or delinquent by Arizona state courts and who are presently placed in private, child-caring facilities in Arizona,” and who sought injunctive relief requiring state officials “to devote additional funding to private agencies that care for children in the state’s custody.” 643 F.2d 1351, 1352 (9th Cir. 1981). The court specifically noted that the plaintiffs “have been adjudged delinquent or dependent by Arizona state courts. These courts retain jurisdiction over delinquent and dependent
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children after an initial placement has been made.” Id. The court, in reversing the district court’s application of Younger abstention, explained, “[t]he relief the appellants seek is not similar to the types of relief the Supreme Court has found to be sufficiently disruptive or intrusive as to warrant equitable restraint. Nor is the appellants’ claim capable of being raised as a defense to an ongoing state enforcement action. The district court therefore erred in dismissing action pursuant to Younger.” Id. at 1354.
One district court within the Fifth Circuit has also rejected Younger abstention in a similar context. In Olivia Y., plaintiffs brought a lawsuit under Section 1983 “on behalf of Mississippi’s abused and neglected children seeking declaratory and injunctive relief to compel [state official] defendants . . . to meet their legal obligations to care for and protect these children.” 351 F. Supp. 2d at 546. Plaintiffs “allege[d] that Mississippi’s child welfare system has systematically failed to meet its legal obligation to protect and care for all of the State’s abused and neglected children, all as a result of gross mismanagement and underfunding of Mississippi’s overburdened child welfare system.” Id. The court recognized that the state youth court’s proceedings were ongoing, but ultimately rejected Younger abstention, stating that it would “be hard-pressed to conclude that any specific relief plaintiffs seek in this action would necessarily interfere with ongoing youth court proceedings. Or stated another way, it is not apparent that all the relief plaintiffs might request would interfere, either directly or indirectly, with ongoing youth court proceedings.” Id. at 570. Numerous other district courts around the nation have also rejected Younger abstention, on various grounds. See, e.g., Connor B., 2011 WL 31343, at *5; Dwayne B., 2007 WL 1140920, at *5-7 (rejecting Younger in part because “[t]he relief sought here is not directed at the juvenile courts. It is directed at the
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executive branch,” and because “the state juvenile courts are not more appropriate vehicles for adjudicating the claims raised in this class action”); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003) (declining to abstain under Younger, and explaining in part, “[a]lthough plaintiffs all have periodic reviews before the state juvenile courts, the declaratory and injunctive relief plaintiffs seek is not directed at their review hearings, or at Georgia’s juvenile courts, juvenile court judges, or juvenile court personnel. Rather, plaintiffs seek relief directed solely at executive branch defendants to remedy their alleged failures as plaintiffs’ custodians.”); Brian A., 149 F. Supp. 2d at 957 (Younger abstention inappropriate); People United for Children, Inc., 108 F. Supp. 2d at 290-91 (finding Younger abstention inappropriate because family court child neglect proceedings would not “afford plaintiffs an adequate opportunity to raise their present claims”); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 514 (D.N.J. 2000) (Younger abstention not appropriate); Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 688-89 (S.D.N.Y. 1996) (“Because none of the plaintiffs in the instant case are improperly challenging a state court proceeding through the federal courts, the Younger abstention doctrine is inapplicable to the instant case.”).8
In light of this authority, the Court declines to follow the persuasive precedents upon which Defendants rely, namely 31 Foster Children, J.B., and Carson. None of these opinions have garnered any support in the Fifth Circuit, and in fact this Court has already declined to follow J.B. and Carson in the context of its class certification decision. M.D.
8 Defendants recognize this case law, but attempt to distinguish it based upon “the unique nature of the specific state’s juvenile court proceedings and authority of those courts to hear constitutional claims.” (D.E. 43 at 21 n.2.) The Court does not find these distinctions persuasive, particularly as courts have found Younger abstention unwarranted even when constitutional claims could have been raised in ongoing state court proceedings. See, e.g., Dwayne B., 2007 WL 1140920, at *6 (noting that plaintiffs technically could raise constitutional issues in their individual juvenile proceedings); Brian A., 149 F. Supp. 2d at 957 (same).
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v. Perry, 2011 WL 217363, at *7 (S.D. Tex. June 2, 2011).9 Moreover, in 31 Foster
Children, the court found the first Middlesex factor satisfied in large part because “the
plaintiffs [were] seeking relief that would interfere with the ongoing state dependency
proceedings by placing decisions that are now in the hands of the state courts under the
direction of the federal district court,” and the plaintiffs sought to “tak[e] the
responsibility for a state’s child dependency proceedings away from state courts and put[]
it under federal court control.” 329 F.3d at 1278-79. As such, the interference with an ongoing state proceeding was far more present than it is here.10 This Court has found that
Plaintiffs seek relief against executive branch officials, and it does not understand
Plaintiffs here to seek interference with state court proceedings in the manner found
problematic in 31 Foster Children.
Ultimately, the Court finds more persuasive the reasoning of those courts that
have declined to abstain based upon Younger abstention than those to the contrary. This
Court does not believe that Younger abstention is warranted in a federal civil rights class
action brought under Section 1983, seeking large-scale injunctive and declaratory relief
against state executives, to vindicate alleged constitutional violations. Abstention would
essentially amount to an abdication of this Court’s responsibility to serve as a forum for
9 Notably, the court in Carson P. found that the lawsuit would interfere with ongoing state judicial proceedings even though it acknowledged that “[t]he plaintiffs have not requested any specific type of injunctive relief,” and “[t]he prayer for relief in their complaint essentially requests the court to enter an order requiring the defendants to cease violating the plaintiffs’ constitutional rights and comply with federal statutory requirements.” 240 F.R.D. at 524. The court thus looked to the allegations in the amended complaint. Id. at 525. This Court disagrees with such a broad, speculative approach to Younger abstention. 10 In 31 Foster Children, the court rejected plaintiffs’ argument that “the requested relief would not interfere because it is directed solely at the Department of Children and Families and not the state courts,” explaining that a “case cannot be decided in a vacuum,” and the “federal court relief the plaintiffs seek would interfere with the ongoing state dependency hearings, even if it were directed against the Department and state officers, instead of state courts and judges.” 329 F.3d at 1279 n.11. The Court does not share the same concerns. Even if the relief sought in this suit would have some indirect effect upon state courts, this is not the type of interference found problematic in Younger.
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resolution of constitutional claims. In addition, the Court recognizes that the more general concerns about comity and federalism underlying Younger are lessened in light of the state’s submission to federal oversight under the Title IV-E foster care program. As one court has explained, “[t]he Foster Care Program, set forth in Title IV–E of the Social Security Act, 42 U.S.C. § 670 et seq., provides federal matching funds for states that operate foster care plans in compliance with the Act’s provisions.” Cal. Dep’t of Soc. Servs. v. Shalala, 166 F.3d 1019, 1019 (9th Cir. 1999); see 42 U.S.C. § 672. Under the 2009 State Plan for Title IV-E of the Social Security Act (the “State Plan”), Texas decided that its child welfare system may be subject to oversight by the U.S. Department of Health and Human Services in exchange for federal funding. In its State Plan, Texas explicitly noted, “[a]s a condition of the receipt of Federal funds under title IV-E of the Social Security Act . . ., the Department of Family and Protective Services submits here a plan for the programs to provide, in appropriate cases, foster care and adoption assistance . . . and hereby agrees to administer the programs in accordance with the provisions of this plan, title IV-E of the Act, and all applicable Federal regulations and other official issuances of the Department [of Health and Human Services].” (D.E. 55-2 at 6 (emphasis added).) The document itself is over one hundred pages in length, and details how the state plans to comply with federal requirements. The Governor’s Certification notes that the “title IV-E plan is mandatory upon the subdivision/service areas and is in effect throughout the State/Tribal service areas.” (D.E. 55-2; D.E. 55-2 at 117.) The voluntary submission to such federal oversight greatly lessens the force of any complaints regarding unwarranted federal intrusion on state sovereignty. See Dwayne B., 2007 WL 1140920, at *5 n.5 (“There are no ‘comity’ or ‘federalism’ concerns presented
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by this lawsuit because the State of Michigan has voluntarily agreed to federal oversight
of its foster care system in exchange for federal funding.”).
In light of its review of the Middlesex factors, the persuasive precedents discussed
above, and all other considerations, the Court denies Defendants’ Motion to Dismiss
based upon the Younger abstention doctrine.
C. Burford Abstention
1. Background
In Burford v. Sun Oil Co., the Supreme Court affirmed a district court decision
dismissing an action in which the Sun Oil Company challenged a Texas Railroad
Commission order granting Burford a permit to drill certain oil wells. 319 U.S. 315, 316-
17 (1943). “The order under consideration [was] part of the general regulatory system
devised for the conservation of oil and gas in Texas, an aspect of as thorny a problem as
has challenged the ingenuity and wisdom of legislatures.” Id. at 318. Recognizing the
significant state regulatory framework, the Court concluded that federal court abstention
was proper. The Court reasoned:
The state provides a unified method for the formation of policy and determination of cases by the Commission and by the state courts. The judicial review of the Commission’s decisions in the state courts is expeditious and adequate. Conflicts in the interpretation of state law, dangerous to the success of state policies, are almost certain to result from the intervention of the lower federal courts. On the other hand, if the state procedure is followed from the Commission to the State Supreme Court, ultimate review of the federal questions is fully preserved here. Under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand.
Burford, 319 U.S. at 333-34. The Fifth Circuit has recently explained, “Burford
abstention applies when a case involves a complex issue of unsettled state law that is
better resolved through a state’s regulatory scheme.” Moore v. State Farm Fire & Cas.
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Co., 556 F.3d 264, 272 (5th Cir. 2009) (citing Burford). As part of its Burford abstention
analysis, a court should consider five factors:
(1) whether the cause of action arises under federal or state law; (2) whether the case requires inquiry into unsettled issues of state law or into local facts; (3) the importance of the state interest involved; (4) the state’s need for a coherent policy in that area; and (5) the presence of a special state forum for judicial review.
Id. (citing Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir. 1993)).
The Supreme Court has stressed “the narrow range of circumstances in which
Burford can justify the dismissal of a federal action.” Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 726 (1996). In a recent decision, the Supreme Court in NOPSI distilled its
previous Burford rulings into the following general principle: “[w]here timely and
adequate state-court review is available, a federal court sitting in equity must decline to
interfere with the proceedings or orders of state administrative agencies: (1) when there
are difficult questions of state law bearing on policy problems of substantial public
import whose importance transcends the result in the case then at bar; or (2) where the
exercise of federal review of the question in a case and in similar cases would be
disruptive of state efforts to establish a coherent policy with respect to a matter of
substantial public concern.” NOPSI, 491 U.S. at 361. The Supreme Court ultimately
rejected application of Burford abstention in NOPSI, stating:
While Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a “potential for conflict” with state regulatory law or policy. Here, NOPSI’s primary claim is that the [New Orleans City] Council is prohibited by federal law from refusing to provide reimbursement for FERC-allocated wholesale costs. Unlike a claim that a state agency has misapplied its lawful authority or has failed to take into consideration or properly weigh relevant state-law factors, federal adjudication of this sort of pre-emption
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claim would not disrupt the State’s attempt to ensure uniformity in the treatment of an “essentially local problem.”
But since, as the facts of this case amply demonstrate, wholesale electricity is not bought and sold within a predominantly local market, it does not demand significant familiarity with, and will not disrupt state resolution of, distinctively local regulatory facts or policies.
491 U.S. at 363-64. In Quackenbush, the Supreme Court further summarized its Burford
jurisprudence as follows:
[T]he power to dismiss under the Burford doctrine . . . derives from the discretion historically enjoyed by courts of equity. . . . [E]xercise of this discretion must reflect “principles of federalism and comity.” Ultimately, what is at stake is a federal court’s decision, based on a careful consideration of the federal interests in retaining jurisdiction over the dispute and the competing concern for the “independence of state action,” that the State’s interests are paramount and that a dispute would best be adjudicated in a state forum. This equitable decision balances the strong federal interest in having certain classes of cases, and certain federal rights, adjudicated in federal court, against the State’s interests in maintaining “uniformity in the treatment of an ‘essentially local problem,’” and retaining local control over “difficult questions of state law bearing on policy problems of substantial public import.” This balance only rarely favors abstention, and the power to dismiss recognized in Burford represents an “‘extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it.’”
Quackenbush, 517 U.S. at 727-28 (emphasis added; internal citations omitted). The
Court ultimately rejected application of Burford because monetary damages were sought,
not equitable or other discretionary relief. Id. at 731 (confirming that Burford is
applicable “to all cases in which a federal court is asked to provide some form of
discretionary relief.”). Thus, NOPSI and Quackenbush demonstrate that Burford
abstention is a very narrow, limited exception, particularly in light of this Court’s duty to
adjudicate all cases over which it has jurisdiction, including Section 1983 actions.
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2. Analysis Defendants urge the Court to abstain under Burford, contending that “the Court’s exercise of jurisdiction over this claim would disrupt Texas’ adoption of policy designed to further improve its foster care system.” (D.E. 43 at 36.) Defendants rely specifically upon the second application of Burford, which provides, “[w]here timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies . . . where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” NOPSI, 491 U.S. at 361; see D.E. 43 at 35. In outlining the measures the state has undertaken to improve the foster care system, Defendants note the establishment of the Supreme Court of Texas Permanent Judicial Commission for Children, Youth, and Families, whose goal is to strengthen courts for children, youth, and families in the Texas child-protection system and improve the permanency and well-being of children. The Commission seeks to improve child protection courts through training and support. (D.E. 43 at 36-37.) Defendants also refer to several legislative initiatives aimed at improving the Texas foster care system, including Senate Bill 6 (passed in 2005), Senate Bill 758 (passed in 2007), Senate Bill 2080 (passed in 2009), and Senate Bill 218 (pending). (D.E. 43 at 38-41.) Finally, Defendants note that the Texas Legislature has greatly increased funding of the state’s child welfare system over the last several years, due in large part to additional federal funds, and has complied with applicable federal mandates. (D.E. 43 at 42-44.) In light of these improvements, Defendants contend that a federal injunction would disrupt the
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state’s comprehensive efforts to establish and reform foster care. They contend that the Burford factors are met because Plaintiffs’ claims are entangled in Texas family law; the case will require the Court to review Texas foster children’s records; the state has a strong interest in its foster care system; Texas SAPCR courts have continuing, exclusive jurisdiction over each foster child’s proceedings; and Texas has a strong interest in establishing a coherent policy in the area of foster care. (D.E. 43 at 45.)
In response, Plaintiffs argue that this lawsuit will not “disrupt” the State’s efforts to improve its foster care system, and any effort to “establish a coherent policy” with regard to a child welfare system must take into account federal policies as a condition of receiving federal funds. (D.E. 55 at 22-23.) Plaintiffs also note that no federal court has abstained under Burford abstention in a lawsuit challenging a state foster care system; in fact, the courts to consider this argument have squarely rejected it. (D.E. 55 at 22-23.) Finally, analysis of the five Wilson factors reveals no need to abstain under Burford. (D.E. 55 at 24-25.) Ultimately, any court order obtained in this case would “bolster the state’s efforts [to improve the foster care system] by ensuring that they comply with constitutional requirements.” (D.E. 55 at 24.)
As an initial matter, the Court disagrees with Defendants’ contention that Texas’s self-initiated improvements to the foster care system warrant Burford abstention. (D.E. 43 at 36.) While the Court does not doubt the state’s intent or desire to improve the system, many of the measures at issue were already in place at the time this suit was filed and have not, at least in Plaintiffs’ opinion, sufficiently addressed the alleged systemic problems. It makes little sense to abstain on the basis that the state is appropriately
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addressing problems in the foster care system when this class action lawsuit was brought in the first place to address alleged deficiencies in that very system.
In addition, Defendants do not adequately explain how this lawsuit would “disrupt Texas’ adoption of policy designed to further improve its foster care system.” (D.E. 43 at 36 (emphasis added).) While Defendants have mentioned several legislative initiatives and other measures undertaken by DFPS to improve the state foster system (D.E. 43-16 – 43-18 (outlining legislative measures affecting state foster care services); D.E. 43-19, 43-20 (reports on use of psychotropic medications by children) 11, they do not demonstrate how this lawsuit, which ultimately seeks similar goals, would interfere with those efforts. It stands to reason that the state efforts could continue alongside this lawsuit. Other courts have similarly found this “disruption” argument lacking. See, e.g., Dwayne B., 2007 WL 1140920, at *8 (“Plaintiff Children’s case will not disrupt the state’s efforts to create a uniform policy governing children in its foster care system. Rather, it will serve to achieve those efforts in a way that complies with constitutional and federal law.”). In fact, no federal court has applied Burford abstention in the context of a lawsuit challenging a state foster care system. Rather, the federal courts to have considered the argument have uniformly rejected it. See, e.g., Dwayne B., 2007 WL 1140920, at *8; Marisol A. by Forbes, 929 F. Supp. at 688; People United for Children, Inc., 108 F. Supp. 2d at 288-89 (declining to abstain under Burford in the context of a lawsuit challenging New York City’s child welfare program).
11 With respect to psychotropic drugs, Defendants argue that since 2004, DFPS has been revising protocols for use of these drugs by children in foster care, and they reference statistics demonstrating a decrease in the number of children on psychotropic drugs from 2004 (41.61%) to 2010 (30.82%). (D.E. 43 at 44; D.E.53 at 2.) These statistics, however, do not show whether in fact foster children’s needs with respect to psychotropic medications are actually being met. The Court cannot determine from these statistics, for example, whether the medications are being properly prescribed, or whether the children are remaining on the drugs for the necessary amount of time.
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Finally, consideration of the Wilson factors further demonstrates that Burford abstention is not appropriate. Wilson, 8 F.3d at 314. This claim arises under federal law, not state law; there are no unsettled issues of state law and any investigation into the facts of children’s foster care experiences will focus on compliance with constitutional requirements. The state interest, while important, is also subject to federal oversight (in light of Title IV-E funding) and is therefore a matter of federal concern as well. In this regard, the Court notes that while DFPS has received increased funding over the past several years, the Biennium Reports acknowledge that federal programs (including Title IV-E and other programs under the Social Security Act) have contributed more than half of the total amount appropriated to DFPS in a given year. (D.E. 43-16 at 4 (2006-2007 appropriations to DFPS total $2.1 billion, of which $1.3 billion originate from federal funds.); D.E. 43-17 at 4 (2008-2009 appropriations total $2.6 billion, of which $1.5 billion originate from federal funds); D.E. 43-18 at 4 (2010-2011 appropriations total $2.7 billion, of which $1.6 billion originate from federal funds).) Fourth, the state certainly has a need for a coherent policy in this area, but this alone does not warrant Burford abstention. Fifth, there is no “special state forum for judicial review.” Defendants again point to the SAPCR courts, but the Court has already determined that these proceedings do not present an adequate opportunity for this class of Plaintiffs to resolve their constitutional claims and seek system-wide reform.
For these reasons, Burford abstention is improper, and the Court denies Defendants’ Motion to Dismiss on this basis.
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IV. Conclusion For the reasons stated above, Defendants’ Rule 12(b)(1) Motion to Dismiss is
DENIED. (D.E. 43.) SIGNED and ORDERED this 1st day of July, 2011. ___________________________________ Janis Graham Jack Senior United States District Judge
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 Case 2:11-cv-00084 Document 206 Filed in TXSD on 05/09/13 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend, Sarah R. Stukenberg, )

D.I., by his next friend, Nancy G. Pofahl,

)

Z.H., by his next friend, Carla B. Morrison,

)

S.A., by her next friend, Javier E. Solis,

)

A.M., by her next friend, Jennifer Talley,

)

J.S., H.V., and P.O., by their next friend, Anna )

J. Ricker,

)

K.E., by her next friend, John W. Cliff, Jr.,

)

S.R., M.R., and J.R., by their next friend,

)

Bobbie M. Young, and

)

L.H., C. H., and S.S., by their next friend Estela )

C. Vasquez, and

)

A.R., by her next friend Tom McKenzie,

)

individually and on behalf of all others similarly )

situated,

)

Plaintiffs,

) )

CASE NO. 2:11-cv-00084

)

v.

)

)

RICK PERRY, in his official capacity as

)

Governor of the State of Texas,

)

KYLE JANEK, in his official capacity as

)

Executive Commissioner of the Health )

and Human Services Commission of the )

State of Texas, and

)

JOHN J. SPECIA, JR., in his official capacity )

as Commissioner of the Department of )

Family and Protective Services of the

)

State of Texas,

)

)

Defendants.

PLAINTIFFS’ FOURTH AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION

Case 2:11-cv-00084 Document 206 Filed in TXSD on 05/09/13 Page 2 of 36
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 JURISDICTION AND VENUE ......................................................................................................3 PARTIES .........................................................................................................................................3
A. Named Plaintiffs ......................................................................................................3 B. Defendants ...............................................................................................................6 CLASS DEFINITIONS ...................................................................................................................7 COUNT I: SUBSTANTIVE DUE PROCESS UNDER THE U.S. CONSTITUTION ..................9 A. Structural Deficiencies That Harm All Putative Members of the
General Class ...........................................................................................................9 B. Structural Deficiencies that Harm All Putative Members of the
Licensed Foster Care Subclass...............................................................................11 C. Structural Deficiencies That Harm All Putative Members of the
Foster Group Home Subclass.................................................................................17 D. Structural Deficiencies That Harm All Putative Members of the
Basic Care GRO Subclass......................................................................................18 E. Structural Deficiencies That Harm All Putative Members of the
Unverified Kinship Subclass..................................................................................19 COUNT II: FIRST, NINTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION ..........................................................................................................................20 CLASS ACTION ALLEGATIONS ..............................................................................................22 PRAYER FOR RELIEF ................................................................................................................31
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INTRODUCTION 1. The entire foster care system in Texas is administered by the Department of Family and Protective Services (“DFPS”). Within DFPS, the Child Protective Services Division (“CPS”) is required to investigate reports of child abuse and neglect. When CPS determines that a child has been maltreated and that he is not safe in his own home, CPS removes the child and petitions the appropriate court for Temporary Managing Conservatorship (“TMC”) of the child. If the court grants TMC, DFPS is required to provide a temporary placement and to try to reunify the child with his family, if it is safe and appropriate to do so, or to try to place the child with a new, permanent family. DFPS may retain TMC of a child for up to one year (or 18 months with court approval). After that time, if the child has not been reunited with his birth family or provided with some other permanent family, the child is formally placed into the Permanent Managing Conservatorship (“PMC”) of the State. The children who are now or will be in the PMC of the State are the sole focus of this lawsuit. 2. Already vulnerable from having suffered the abuse or neglect that brought them into the foster care system in the first place, children in the PMC of the State are at risk of further maltreatment while in the State’s care because of structural deficiencies in the Texas foster care system. For example, children whose caseworkers carry excessive caseloads suffer longer stays in State custody, placements that are not suited to their needs, frequent moves from one placement to another, and maltreatment and a higher risk of maltreatment in care. 3. Once children enter the State’s PMC, the likelihood that they exit from State custody and into a permanent home drops off markedly. The average length of stay for children who were in the State’s PMC at the end of August 2011 was more than three years. These children languish in State care even though, as of July 2011, more than half of the children in the State’s PMC
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were legally free for adoption. Each year, far too many children leave the State’s PMC only when they turn 18 and “age out.” In state Fiscal Year 2011, 1202 children in the State’s PMC aged out, or 17.5 percent of all children who exited the State’s PMC in 2011. 4. Further, while the State retains legal responsibility for each child in its conservatorship, Texas relies heavily on private child placing agencies who contract with the State to provide foster care for these children. As of March 31, 2011, 82 percent of the children in the State’s PMC who were in foster family homes, and 98 percent of the children in the State’s PMC who were in foster group homes, were in homes administered by private child placing agencies. 5. Approximately one-third of children in the custody of Texas and one-quarter of all children in PMC were placed in unverified1 and unreimbursed “kinship” care with relatives as of August 31, 2011. The State’s failure to require verification of all kinship placements, and its failure to provide foster care payments for children in unverified kinship homes, deprives all children who are or will be in such placements of the safety and well-being to which they are entitled. 6. Texas policies and practices result in structural deficiencies that put all children who are or will be in the State’s PMC at an unacceptable risk of harm, including abuse and neglect, while in care. Among other deficiencies, Texas employs an insufficient number of caseworkers; has an insufficient number, geographic distribution, and array of placement options; and fails to monitor and enforce compliance with the licensing standards for its foster care placements. Additionally, Texas places a significant percentage of the children in its PMC in unlicensed kinship placements and inappropriate group care settings that do not meet accepted professional
1 In Texas, “verification” is the term used for the formal approval of foster parents by child placing agencies, including CPS. In other states and in the applicable professional standards, this process is commonly known as “licensing.”
2

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standards. Collectively, these structural deficiencies lead to grim consequences: children in the State’s PMC suffer maltreatment at an unacceptable rate, are subjected to frequent and repeated moves among placements, and too often are separated from their siblings and home communities.
JURISDICTION AND VENUE 7. Because this action is brought pursuant to 42 U.S.C. § 1983, this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 8. Venue is proper in this judicial district, pursuant to 28 U.S.C. § 1391(b), because a substantial portion of the events or omissions giving rise to the claims occurred in this district, in that:
a. Named Plaintiff M.D. is a legal resident of this Division and entered Department of Family and Protective Services custody in this Division;
b. Named Plaintiffs D.I., S.R., M.R., J.R., L.H., C.H., and S.S. are legal residents of this District and, along with Named Plaintiff S.A., entered DFPS custody in this District;
c. Named Plaintiffs M.D., D.I., S.A., J.S., K.E., S.R., M.R., J.R., L.H., and C.H. have been, at times, placed in this District; and
d. Named Plaintiff D.I., S.A., S.R., M.R., J.R., L.H., C.H., and S.S. are currently placed in this District. PARTIES
A. Named Plaintiffs 9. M.D. is a sixteen-year-old girl from Corpus Christi, in Nueces County, who is in the Permanent Managing Conservatorship of the State of Texas. She is currently in a residential treatment center (“RTC”) in New Ulm, in Austin County, about four hours from her hometown. M.D. appears by her next friend, Sarah R. Stukenberg. Ms. Stukenberg is suited to represent M.D.’s best interests in this case. 10. D.I. is an eleven-year-old boy from Houston, in Harris County, who is in the Permanent
3

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Managing Conservatorship of the State of Texas. At the time that Plaintiffs filed their Motion for Class Certification (Dkt. No. 160), D.I. resided in a family foster home. D.I. appears by his next friend, Nancy Pofahl. Ms. Pofahl is suited to represent his best interests in this case. 11. Z.H. is a twelve-year-old boy from San Antonio, in Bexar County, who is in the Permanent Managing Conservatorship of the State of Texas. He currently resides in an RTC in Nacogdoches, about 300 miles from his home community of San Antonio. Z.H. appears by his next friend, Carla B. Morrison. Ms. Morrison is suited to represent his best interests in this case. 12. S.A. is a sixteen-year-old girl who came into DFPS custody in Brownsville, in Cameron County. S.A. currently resides in an RTC in Harris County, six hours from Brownsville. S.A. is in the Permanent Managing Conservatorship of the State of Texas. S.A. appears by her next friend, Javier E. Solis. Mr. Solis is suited to represent her best interests in this case. 13. A.M. is a fifteen-year-old girl from Canton, in Van Zandt County, who is in the Permanent Managing Conservatorship of the State of Texas. A.M. currently resides in an RTC in McClennan County, almost three hours from her home community in Canton. A.M. appears by her next friend, Jennifer Talley. Ms. Talley is suited to represent her best interests in this case. 14. J.S. is a ten-year-old boy from Morton, in Cochran County, who is in the Permanent Managing Conservatorship of the State of Texas. He currently resides in an RTC in Goldthwaite, approximately 325 miles from Morton. J.S. appears by his next friend, Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 15. H.V. is a thirteen-year-old boy from Levelland, in Hockley County, who is in the Permanent Managing Conservatorship of the State of Texas. H.V. is in a foster group home in Lubbock. H.V. appears by his next friend Anna J. Ricker. Ms. Ricker is suited to represent his
4

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best interests in this case. 16. P.O. is a nine-year-old boy from Levelland, in Hockley County, who is in the Permanent Managing Conservatorship of the State of Texas. P.O. is in a kinship placement with his grandparents. P.O. appears by his next friend Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 17. K.E. is a seventeen-year-old girl from Odessa, in Ector County, who is in the Permanent Managing Conservatorship of the State of Texas. K.E. is currently residing in an RTC in San Antonio, in Bexar County, more than five hours from Odessa. K.E. appears by her next friend John W. Cliff, Jr. Mr. Cliff is suited to represent her best interests in this case. 18. S.R. is a seven-year-old girl from Houston, in Harris County, who is in the Permanent Managing Conservatorship of the State of Texas. At the time of the hearing on Plaintiffs’ Motion for Class Certification, S.R. was living with her aunt in an unverified kinship placement in Houston. S.R. appears by her next friend, Bonnie M. Young. Ms Young is suited to represent her best interests in this case. 19. M.R. is a six-year-old boy from Houston, in Harris County, who is in the Permanent Managing Conservatorship of the State of Texas. At the time of the hearing on Plaintiffs’ Motion for Class Certification, M.R. was living with his aunt in an unverified kinship placement in Houston. M.R. appears by his next friend, Bobbie M. Young. Ms Young is suited to represent his best interests in this case. 20. J.R. is a three-year-old girl from Houston, in Harris County, who is in the Permanent Managing Conservatorship of the State of Texas. At the time of the hearing on Plaintiffs’ Motion for Class Certification, J.R. was living with her aunt in an unverified kinship placement in Houston. J.R. appears by her next friend, Bonnie M. Young. Ms. Young is suited to represent
5

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her best interests in this case. 21. L.H. is a fouteen-year-old girl from Cameron County, who is in the Permanent Managing Conservatorship of Texas. She is currently living in a basic care general residential operation (“GRO”) in San Benito, in Cameron County. L.H. appears by her next friend, Estela C. Vasquez. Ms. Vasquez is suited to represent her best interests in this case. 22. C.H. is a ten-year-old girl from Cameron County, who is in the Permanent Managing Conservatorship of Texas. She is currently living in a basic care general residential operation in San Benito, in Cameron County. L.H. appears by her next friend, Estela C. Vasquez. Ms. Vasquez is suited to represent her best interests in this case. 23. S.S. is a 15-year-old girl from Cameron County, who is in the Permanent Mananging Conservatorship of Texas. She is currently living with a relative in an unverified kinship placement in Cameron County. S.S. appears by her next friend, Estela C. Vasquez. Ms. Vasquez is suited to represent her best interests in this case. 24. A.R. is an eighteen-month-old girl from Tarrant County, who is in the Permanent Managing Conservatorship of Texas. She is currently living with her uncle in an unverified kinship placement in Tarrant County. A.R. appears by her next friend, Tom McKenzie. Mr. McKenzie is suited to represent her best interests in this case. B. Defendants 25. Defendant RICK PERRY is the Governor of Texas, and is sued in his official capacity. He is responsible for ensuring that all Texas agencies comply with applicable federal and state law, and he oversees and directs the activities of the Texas Health and Human Services Commission and the Department of Family and Protective Services, pursuant to the Texas Constitution Article IV Sections 1 and 10, and to the Texas Government Code Title 4, Chapter 531. His business address is Office of the Governor, State Insurance Building, 1100 San Jacinto
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Boulevard, Austin, Texas 78701. 26. Defendant KYLE JANEK is the Executive Commissioner of the Texas Health and Human Services Commission, and is sued in his official capacity. Pursuant to Texas Government Code Section 531.0055 et seq., the Executive Commissioner has broad policy and rule-making authority for the commission and its constituent agencies, including DFPS. Executive Commissioner Janek reports to the Governor, Rick Perry, and serves at his pleasure. Defendant Janek’s business address is Texas Health and Human Services Commission, BrownHeatly Building, 4900 North Lamar Boulevard, 7th Floor, Austin, Texas 78751. 27. Defendant JOHN J. SPECIA, JR. is the Commissioner of DFPS, and is sued in his official capacity. Pursuant to the Texas Government Code Title 4, Chapter 531, he is responsible for administering properly and efficiently all DFPS child welfare services and programs; providing for the care of the children served by the department; directing the placement of children in appropriate state programs and/or facilities; and assuring that all contracted and other programs and facilities providing child welfare services operate in conformity with constitutional, statutory, and regulatory requirements. Pursuant to Texas Government Code Section 531.0056(a), the Commissioner is appointed by the Executive Commissioner of the Texas Health and Human Services Commission, with the approval of the Governor, and serves at the pleasure of the Executive Commissioner. His business address is Texas Department of Family and Protective Services, 701 West 51st Street, Austin, Texas 78751.
CLASS DEFINITIONS 28. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution on behalf of:
a. a class comprised of all children who are now or will be in the Permanent Managing
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Conservatorship of the State of Texas’s Department of Family and Protective Services (“General Class”); b. a subclass comprised of all members of the General Class who are now or will be in a licensed or verified foster care placement, except those children now, or in the future, placed in a verified kinship placement, see CPS Handbook §§ 4512-4513 (“Licensed Foster Care Subclass”); c. a subclass comprised of all members of the General Class who are now or will be in a foster group home, defined by state law as a facility that is the primary residence of the caregiver(s) and provides 24-hour residential care for seven to 12 children, Tex. Hum. Res. Code § 42.002(5) (“Foster Group Home Subclass”); d. a subclass comprised of all members of the General Class who are now or will be in a general residential operation, defined by state law as a residential child care operation that provides child care for 13 or more children or young adults, Tex. Hum. Res. Code § 42.002(4), 40 Tex. Admin. Code § 748.43(23), and who are or will be receiving solely non-emergency, basic child care services, which the state defines as “[s]ervices that meet a child’s basic need for shelter, nutrition, clothing, nurture, socialization and interpersonal skills, care for personal health and hygiene, supervision, education, and service planning,” 40 Tex. Admin. Code § 748.61 (“Basic Care GRO Subclass”); and e. a subclass comprised of all members of the General Class who are or will be in an unverified kinship placement, defined by state policy as a placement with a relative or other person who has a longstanding and significant relationship with the child, but is not verified, licensed, or certified as a foster parent, see CPS Handbook §§ 4512-4513
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(“Unverified Kinship Subclass”). COUNT I: SUBSTANTIVE DUE PROCESS UNDER THE U.S. CONSTITUTION (Asserted by the Named Plaintiffs on behalf of all Plaintiff Children in the General Class
and in every Subclass) 29. State officials assume affirmative duties under the Fourteenth Amendment to the United States Constitution to protect from harm all children taken into foster care custody, and to provide them appropriate care, treatment, and services through the exercise of accepted professional judgment. 30. Defendants, in their official capacities, have failed and continue to fail to discharge their affirmative duties because their actions and inactions constitute state policies or practices that substantially depart from accepted professional judgment, practice, and standards as to demonstrate that Defendants did not base their conduct on such a judgment and/or shock the conscience by constituting deliberate indifference to the constitutionally protected rights and liberty and privacy interests of children who are now or will be in the State’s PMC. More specifically, Plaintiffs complain of the following actions and inactions of Defendants that have produced structural deficiencies in the State’s foster care system that harm children who are now or will be in the PMC of the State. A. Structural Deficiencies That Harm All Putative Members of the General Class 31. Texas employs an insufficient number of caseworkers. Caseworkers are responsible for many of the critical tasks upon which the Plaintiff Children depend: placing children in the least restrictive placements that are safe and meet their needs; regularly visiting children in those placements; ensuring the development and implementation of case plans needed by Plaintiff Children; ensuring children receive needed services; and developing and implementing a permanency plan for each child to ensure that they leave State custody for permanent families
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whenever possible. 32. Professional standards, as promulgated by the Child Welfare League of America, recommend that caseworkers have caseloads that range from 12 to 15 children in order to fulfill their responsibilities. Standards of Excellence for Family Foster Care Services § 3.48. Texas state law recognizes that the caseloads of its DFPS caseworkers should be consistent with “professional caseload standards,” Tex. Gov’t Code § 531.048(b)(3), which are defined to include caseload standards established by the Child Welfare League of America, Tex. Gov’t Code § 531.001(5). Texas employs too few caseworkers to provide General Class members with caseworkers whose caseloads meet professional standards. The average caseload for DFPS substitute care caseworkers for state Fiscal Year 2011 was 32.0 cases and has been rising for several years. Indeed, as of August 31, 2011, 55 percent of the caseworkers serving children in the State’s PMC had caseloads that exceeded 30 cases, which is substantially above professional standards; and 322 workers, or 24 percent of the caseworkers serving those children, had caseloads of more than 40 cases. 33. As Defendants have admitted, workers are less able to fulfill their responsibilities and ensure the safety of the children in their care, as required by Texas state policy and professional standards, when they carry excessive caseloads. For example, children whose workers carry excessive caseloads are harmed by and put at risk of harm by placement decisions made without adequate information. Excessive caseloads cause children in the State’s PMC to experience longer stays in State custody without the opportunity for a permanent family; placements not suited to their needs; frequent and repeated moves from one placement to another; and maltreatment and higher risk of maltreatment in care. High caseloads also contribute to high employee turnover rates, exacerbating systemic instability.
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34. By the actions and inactions of Defendants listed above in ¶¶ 1-6 and 27-31, all Plaintiff Children in the General Class have been harmed and are at continuing risk of harm, including abuse and neglect. 35. Defendants’ actions and inactions listed above in ¶¶ 1-6 and 27-31 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the General Class. 36. By the actions and inactions of Defendants listed above in ¶¶ 1-6 and 27-31, all Plaintiff Children in the General Class have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. B. Structural Deficiencies that Harm All Putative Members of the Licensed Foster
Care Subclass 37. Texas maintains an insufficient number, geographic distribution, and array of placements. Texas state policy expressly provides that it is preferable that all children be placed in the least restrictive placement appropriate to the needs of a child and that a child be placed in the child’s home community with the child’s sibling group intact. However, for a long period of time, and with knowledge of widespread structural deficiencies, Defendants have failed to maintain a sufficient number, geographic distribution, and array of foster care placements to meet the reasonably anticipated needs of Plaintiff Children in the Licensed Foster Care Subclass. In a September 2010 report to the legislature, DFPS acknowledged that “[f]inding appropriate placements for children who come into foster care remains difficult because the needs of the children do not always match the number, type, and location of the placement options available.”
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More recently, DFPS, in explaining why its foster care system needed to be redesigned, pointed to some of the structural deficiencies in its placement array, including an “[i]mbalance in geographic distribution of services and providers” and an “[i]nsufficient number of residential providers that offer a full continuum of services,” resulting in the placement of children outside of their home communities, an increased number of changes in placement, separation from siblings and family, lack of educational continuity, and a fractured support system. 38. Texas’s insufficient placement array leads to the following inappropriate placements:
a. The State inappropriately places children in non-therapeutic, non-emergency group care. Due to the insufficient number and array of foster family homes, the State places children in group care placements when they should be placed in the least restrictive, most family-like settings where their needs can be met. As of March 31, 2011, approximately 13 percent of children in the State’s PMC resided either in foster group homes or were receiving basic child care services in non-emergency general residential operations. DFPS policy explicitly recognizes that foster group homes and general residential operations are more restrictive placements than foster family homes.
b. Children are placed, or are at an unreasonable risk of being placed, far from their home communities. The unavailability of suitable placements also puts children in placements far from their home communities. As of February 29, 2012, 6626 children, or 55 percent of the children in the State’s PMC, had been placed outside of their home counties, and 2986 children, or 25 percent of the children in the State’s PMC, had been placed not only outside of their home counties but also outside of their large multi-county DFPS Regions. In addition to these overall statistics, another
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manifestation of this structural deficiency in Texas foster care policies and practices is that, as of August 31, 2011, Harris County and its neighboring counties of Brazoria, Fort Bend, and Galveston had 36 of the 85 RTCs operating in the State. In June 2010 legislative testimony, then-Commissioner Anne Heiligenstein recognized that six out of ten children placed in Houston-area RTCs were from other regions across the state. She described the State’s network of residential treatment centers as a “scatter-gram” that unnecessarily complicates the lives of already troubled youth. c. Children are subject to, or are at an unreasonable risk of being subjected to, frequent moves from one placement to another. The unavailability of appropriate foster care placements also subjects children in the Licensed Foster Care Subclass to frequent and repeated moves from one placement to another and to an unreasonable risk of these placement moves. As of August 31, 2011, 35 percent of the children in the State’s PMC had been in five or more placements while in State custody. d. Children are separated from, or are at an unreasonable risk of being separated from, their siblings. Federal and state policy, as well as accepted professional standards, dictate that children be placed with their siblings while in foster care unless there is a therapeutic or safety-related reason to separate them. However, due to the unavailability of suitable placements, siblings in Texas foster care are too often separated for no therapeutic or safety-related reason. As of March 31, 2011, almost two-thirds of the children in the State’s PMC were part of sibling groups. Yet only 53.6 percent of these sibling groups were intact—that is, all of the children in the sibling group were placed together. In 26 percent of the sibling groups, none of the siblings were placed together.
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39. The inadequate number, geographical distribution, and array of placements causes harm to children in the Licensed Foster Care Subclass. The lack of appropriate placement options causes all children in the Licensed Foster Care Subclass to be placed inappropriately, or to be at an unreasonable risk of being placed inappropriately. Licensed Foster Care Subclass members are improperly placed in group care settings, thus deprived of the family-like settings mandated both by accepted professional standards and Texas’s own policies. Frequent and/or distant placement moves result in educational discontinuity and a deficient social support system. It is well-established that each move that a foster child experiences interrupts normal development and adds psychological trauma, with long-term implications for the child’s ability to develop healthy interpersonal relationships, good self-esteem, and even a conscience. Moreover, the health and safety of children placed far from their home communities may not be monitored by anyone with whom the children have a trusting relationship, as it is difficult for family members, court advocates, and even the children’s primary DFPS caseworkers to visit distant placements. Further, according to a December 2010 report to the Legislature by the Adoption Review Committee, the members of which were appointed by Governor Perry and then-Executive Commissioner Thomas Suehs, inappropriate sibling placement decisions “hinder and delay a child’s path to permanency.” Then-Commissioner Heiligenstein similarly acknowledged in a February 2011 presentation to the Texas House Human Services Committee that sibling separation negatively impacts children’s well-being and permanency outcomes. 40. Texas is deficient in its oversight and monitoring of foster care placements and fails to enforce compliance with its licensing standards. Texas fails to adequately monitor and oversee the child placing agencies and residential child care facilities that it licenses to take care of the children in foster care because it does not allocate sufficient resources to such oversight and
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because it does not enforce compliance with its own licensing standards. Instead of providing sufficient oversight of the safety of the children in their custody, Defendants rely too heavily upon the child placing agencies and residential facilities (almost all of which are private contractors) to “verify” the suitability of the thousands of homes and facilities that they manage and to monitor the safety of the children who reside in them. 41. The Residential Child Care Licensing division (“RCCL”) of DFPS is charged with licensing and regulating all child placing agencies and residential child care facilities in Texas. In 2011, those agencies and facilities included approximately 350 child placing agencies (including branch offices), 85 RTCs, and 160 other types of GROs (e.g., group care facilities, including emergency shelters and campus-type settings). Those agencies and facilities were responsible for approximately 8200 children in foster care placements in the State’s PMC. RCCL was tasked with overseeing more than 600 operations (which include more than 10,000 individual homes and facilities) with a staff of only 124 caseworkers and 24 supervisors. In state Fiscal Year 2011, RCCL found “deficiencies” in minimum standards of care in about 30 percent of the investigations it conducted at licensed agencies and facilities. The most common of these “deficiencies” involved use of corporal punishment; failure to complete required background checks; and deficiencies in the competency, judgment, and level of supervision of employees and caregivers. In response to these 812 findings of minimum standards deficiencies, Texas initiated only 16 “corrective actions” (13 “evaluations” and three “probations”) and took only two “adverse actions” (one permit suspension and one permit denial) against these 600 agencies and facilities. 42. Texas’s failure to adequately oversee and monitor its child placing agencies and residential facilities results in an unacceptable risk of harm, including maltreatment for foster
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children in the State’s PMC. Defendants’ own data shows that, for the period of October 25, 2010 to October 25, 2011, children in foster care in the State’s PMC were abused at an unacceptable rate. 43. Defendants’ deficient oversight of its agencies and residential facilities includes Defendants’ failure to enforce their own licensing standards and policies designed to ensure the safety and well-being of the children in their custody: For example, in early 2011, DFPS’s Child Care Licensing Division’s Performance Management Unit issued a report identifying numerous deficiencies in RCCL’s oversight and monitoring of the State’s residential child care operations. These deficiencies included a failure to do timely or effective follow-up inspections in more than a third of the residential operations with deficiencies that were sampled; an over-reliance on child placing agencies to investigate the foster homes they manage, apparently resulting in increased risk to the children in those homes; and the failure of virtually all of the corrective actions reviewed by the Performance Management Unit to reduce risk to children. In other words, Defendants do not have an adequate system or sufficient resources to ensure or enforce compliance with their own licensing standards, standards ostensibly designed to protect the safety and well-being of children cared for in foster care placements. 44. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 35-41, all Plaintiff Children in the Licensed Foster Care Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 45. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, and 35-41 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Licensed Foster Care Subclass. 46. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 35-41, all
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Plaintiff Children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. C. Structural Deficiencies That Harm All Putative Members of the Foster Group
Home Subclass 47. Foster group homes do not conform to accepted professional standards in several significant respects:
a. Foster group home caregivers have insufficient training and qualifications. The training and qualifications required by Texas for caregivers in foster group homes fall short of those required by accepted professional standards for caregivers in group living facilities. Even though twice as many children may be placed in a Texas foster group home than may be placed in a Texas foster family home, Texas requires no additional training for foster group home caregivers beyond that which is required for foster family home caregivers. Contrary to accepted professional standards, Texas sets no additional educational requirements for foster group home caregivers beyond a GED, a high school diploma, or an illustration of similar knowledge.
b. Foster group homes have insufficient professionals on staff. Texas does not require caregivers in foster group homes to be professionals, nor does it require that medical professionals be on staff or on call at foster group homes, contrary to accepted professional standards for group living facilities.
c. Foster group homes do not require waking caregivers. Accepted professional standards require that at least one caregiver be awake at all times in any group care
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facility. In Texas, there is no policy or practice requiring at least one caregiver to remain awake at all times in a foster group home. 48. Defendants’ placement of children in foster group homes results in harm and risk of harm to the safety and well-being of the children housed in such facilities. 49. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38, and 4546, all Plaintiff Children in the Foster Group Home Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 50. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, 35-38, and 45-46 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Foster Group Home Subclass. 51. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38, and 4546, all Plaintiff Children in the Foster Group Home Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive care, treatment, and services determined and provided through the exercise of accepted professional judgment. D. Structural Deficiencies That Harm All Putative Members of the Basic Care GRO Subclass 52. Texas uses general residential operations to house children who should not be placed in large group living facilities. Federal law, accepted professional standards, and Texas policy require that children be placed in the least restrictive, most family-like setting that meets their needs. Accepted professional standards and Texas policy therefore discourage the use of nonemergency group living facilities for children who need only basic child care services because such facilities are not the least restrictive, most family-like setting that meets the needs of these
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children. However, Texas routinely places children needing only basic child care services in large group residential facilities known as “GROs” because Texas has no appropriate placements for these children. Moreover, there are no limits on the numbers of children that can be housed in a GRO, effectively turning some of these GROs into modern-day orphanages, with a capacity of more than a hundred children. 53. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38 and 50, all Plaintiff Children in the Basic Care GRO Subclass have been harmed and are at continued risk of harm, including abuse and neglect. 54. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, 35-38 and 50 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Basic Care GRO Subclass. 55. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38 and 50, all Plaintiff Children in the Basic Care GRO Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. E. Structural Deficiencies That Harm All Putative Members of the Unverified Kinship
Subclass 56. Texas fails to require that its kinship homes be licensed or verified. Under Texas policy and practice, a kinship caregiver for a child in State custody is not required to be licensed or “verified” as a foster parent. Accepted professional standards require that such kinship homes meet the same standards as a licensed or verified foster home. 57. Unverified kinship providers do not receive necessary training. Under Texas policy and
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practice, unverified kin providers do not receive the same training for the care of children in State custody that is provided to licensed or verified foster parents. Accepted professional standards recognize that all kin providers should undergo such training for the care of children. 58. Children in unverified kinship care receive insufficient monetary assistance. Under Texas policy and practice, children in unverified kinship placements do not receive the monthly foster care financial support that the State provides to children living with licensed or verified foster parents. Accepted professional standards recognize that all children in State custody in kinship placements should receive foster care financial support to help cover costs for food, clothing, and other necessities. 59. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 54-56, all Plaintiff Children in the Unverified Kinship Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 60. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, and 54-56 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Unverified Kinship Subclass. 61. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 54-56, all Plaintiff Children in the Unverified Kinship Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive care, treatment, and services determined and provided through the exercise of accepted professional judgment.
COUNT II: FIRST, NINTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
(Asserted by Named Plaintiffs M.D., D.I., Z.H., S.A., J.S., H.V., A.M., K.E., L.H., and C.H. on
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behalf of all Plaintiff Children in the Licensed Foster Care Subclass) 62. Each of the foregoing allegations is incorporated as if fully set forth herein. 63. A right of family integrity and a right to a permanent family derive from the First Amendment’s right of association, the Ninth Amendment’s reservation of rights to the people, and the Fourteenth Amendment’s substantive due process protections. 64. The foregoing and following actions and inactions of Defendants Rick Perry, Kyle Janek, and John J. Specia, Jr., in their official capacities, constitute a policy or practice that is such a substantial departure from accepted professional judgment, practice, and standards as to demonstrate that Defendants did not base their conduct on such a judgment and/or shock the conscience by constituting deliberate indifference to the constitutionally protected rights of all Plaintiff Children in the Licensed Foster Care Subclass in the following respects: 65. Texas fails to maintain a sufficient number, geographic distribution, and array of placements. For many years and with knowledge of structural deficiencies, Defendants have maintained an insufficient number, geographic distribution, and array of foster care placements to meet the reasonably anticipated needs of Plaintiff Children in the Licensed Foster Care Subclass. 66. Children are placed far from their home communities. The lack of suitable placements subjects children to the risk of being placed far from their home communities. As of February 29, 2012, 6626 children, or 55 percent of all children in the State’s PMC, had been placed outside of their home counties, and 2986 children, or 25 percent of children in the State’s PMC, had been placed not only outside of their home counties but also outside of their large multicounty DFPS Regions. 67. Sibling groups are separated. The lack of suitable placements causes siblings to be separated for no therapeutic or safety reason, contrary to federal and state law, Texas’s own
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policy, and accepted professional standards. As of March 31, 2011, almost two-thirds of the children in the State’s PMC were part of sibling groups. Yet only 53.6 percent of these sibling groups were intact, that is, all of the children were placed together. In 26 percent of the sibling groups, none of the siblings were placed together. 68. Distant moves and family separation cause harm. Children moved to locations distant from their home communities are subject to a fractured social support system and erosion of familial connections. It is difficult for any family member to visit far-away placements. Further, sibling separation can “hinder and delay a child’s path to permanency,” according to a December 2010 report to the Texas legislature by the Adoption Review Committee. Then-Commissioner Heiligenstein reported to the legislature in February 2011 that sibling separation harms children’s well-being and permanency outcomes. 69. As a result of Defendants’ conduct, all Plaintiff Children in the Licensed Foster Care Subclass have been and are at further risk of being harmed and deprived of the liberty interests, privacy interests, and associational rights not to be deprived of a family relationship where safe and appropriate, as conferred on them by the First, Ninth, and Fourteenth Amendments to the United States Constitution.
CLASS ACTION ALLEGATIONS 70. This action is properly maintained as a class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 71. As to the General Class of All Plaintiff Children:
a. Numerosity. As of March 31, 2011, there were approximately 12,196 children in the State’s Permanent Managing Conservatorship. The General Class is sufficiently numerous as to make joinder impracticable.
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b. Common Question of Fact. Determination of the following common question of fact will resolve in one stroke the following issue that is central to the validity of each one of the individual Class member’s claims: Do the State’s policies and practices regarding the staffing of caseworkers for children in PMC depart from accepted professional judgment, practice, and standards for caseworker caseloads?
c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Class member’s claims: Do the State’s policies and practices regarding the staffing of caseworkers for children in PMC mean that children in the General Class have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
d. Typicality. The claims alleged by the Named Plaintiffs and the resultant harms are typical of the claims of each member of the putative General Class. Typicality exists because all absent General Class members have been injured, or are at risk of injury, as a result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because the Named Plaintiffs will fairly and adequately protect the interests of the General Class. There are no conflicts of interest between any of the Named Plaintiffs and the other General Class members. Moreover, the Named Plaintiffs’ proposed Next Friends, who sue on their behalf, are dedicated to the Named Plaintiffs’ best interests, familiar with this litigation, and willing and able to pursue this case on behalf of the Named Plaintiffs and the General Class that the Named Plaintiffs seek to represent.
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72. As to the Licensed Foster Care Subclass: a. Numerosity. As of March 31, 2011, there were approximately 8200 children in the State’s Permanent Managing Conservatorship who were in licensed or verified foster care, not including those children who were in verified kinship placements. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of fact will resolve in one stroke the following issues that are central to the validity of each one of the individual Subclass member’s claims: i. Does the State fail to maintain an adequate number, geographic distribution, and array of licensed foster care placements to ensure that the needs of the children in the Subclass are met in conformity with accepted professional judgment, practice, and standards? ii. Does the State fail to maintain oversight and monitoring of its licensed foster care placements sufficient to ensure compliance with its own licensing standards and accepted professional judgment, practice, and standards? c. Common Questions of Law. Determination of the following common questions of law will resolve the following legal issues that are central to the validity of each one of the individual Subclass member’s claims: i. Does the State’s failure to maintain an adequate number, geographic distribution, and array of licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
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ii. Does the State’s failure to maintain sufficient oversight and monitoring of its licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
iii. Does the State’s failure to maintain an adequate number, geographic distribution, and array of licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the right of family integrity and the right to a permanent family, as conferred on them by the First, Ninth, and Fourteenth Amendments to the United States Constitution?
d. Typicality. The claims alleged by M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., and C.H. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Licensed Foster Care Subclass members have been injured, or are at risk of injury, as a result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H. and C.H. will fairly and adequately protect the interests of the Licensed Foster Care Subclass. There are no conflicts of interest between M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., C.H., and the other Licensed Foster Care Subclass members. Moreover, M.D.’s, D.I.’s, Z.H.’s, S.A.’s, J.S.’s, H.V.’s, K.E.’s, A.M.’s, L.H.’s and C.H.’s proposed Next Friends, who sue on their behalf, are dedicated to M.D.’s, D.I.’s, Z.H.’s, S.A.’s, J.S.’s, H.V.’s, K.E.’s,
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A.M.’s, L.H.’s, and C.H.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., C.H., and the Licensed Foster Care Subclass that M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., and C.H. seek to represent. 73. As to the Foster Group Home Subclass a. Numerosity. As of March 31, 2011, 1184 children in the State’s Permanent Management Conservatorship were placed in foster group homes. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of fact will resolve in one stroke the following issues that are central to the validity of each one of the individual subcass member’s claims: i. Do the State’s policies and practices with respect to its operation of foster group
homes depart from accepted professional judgment, practice, or standards regarding caregiver qualifications and training? ii. Do the State’s policies and practices with respect to its operation of foster group homes depart from accepted professional judgment, practice, or standards regarding staffing of professionals? iii. Do the State’s policies and practices with respect to its operation of foster group homes depart from accepted professional judgment, practice, or standards regarding waking caregivers? c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Do the State’s policies and practices with
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respect to the operation of its foster group homes mean that children in the Foster Group Home Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by H.V. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Foster Group Home Subclass members have been injured, or are at risk of injury, as a
result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because H.V. will fairly and adequately protect the interests of the Foster Group Home Subclass. There are no conflicts of interest between H.V. and the other Foster Group Home Subclass members. Moreover, H.V.’s proposed Next Friend, who sues on his behalf, is dedicated to H.V.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of H.V. and the Foster Group Home Subclass that H.V. seeks to represent.
74. As to the Basic Care GRO Subclass: a. Numerosity. As of March 31, 2011, 395 children in the State’s Permanent Management Conservatorship were placed in non-emergency general residential operations and receiving only basic child care services. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Question of Fact. Determination of the following common question of fact will resolve in one stroke an issue that is central to the validity of each one of the individual Subclass member’s claims: Does the State’s placement of children needing
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only basic child care services in non-emergency general residential operations depart from accepted professional judgment, practice, or standards? c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Does the State’s placement of children needing only basic child care services in non-emergency general residential operations mean that children in the Basic Care GRO Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by L.H. and C.H. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Basic Care GRO Subclass members have been injured, or are at risk of injury,
as a result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because L.H. and C.H. will fairly and adequately protect the interests of the Basic Care GRO Subclass. There are no conflicts of interest between L.H., C.H., and the other Basic Care GRO Subclass members. Moreover, L.H. and C.H.’s proposed Next Friend, who sues on their behalf, is dedicated to L.H.’s and C.H.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of L.H., C.H., and the Basic Care GRO Subclass that L.H. and C.H. seek to represent.
75. As to the Unverified Kinship Subclass: a. Numerosity. As of August 31, 2011, 2994 children in the State’s Permanent Management Conservatorship were placed in unverified kinship placements. The
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Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of
fact will resolve in one stroke the following issues that are central to the validity of each one of the individual Subclass member’s claims: i. Do the State’s policies and practices with respect to the approval process for
unverified kinship home placements depart from accepted professional judgment, practice, or standards? ii. Do the State’s policies and practices with respect to the training of unverified kinship caregivers depart from accepted professional judgment, practice, or standards? iii. Do the State’s policies and practices with respect to financial support for children in State custody who are placed with unverified kinship caregivers depart from accepted professional judgment, practice, or standards? c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Do the State’s policies and practices for the operation of unverified kinship placements mean that children in the Unverified Kinship Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by P.O., S.R., M.R., J.R., A.R., and S.S. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Unverified Kinship Subclass members have been
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injured, or are at risk of injury, as a result of the same harmful state policies and practices. e. Adequacy of Representation. Adequacy of representation exists because P.O., S.R., M.R., J.R., A.R., and S.S. will fairly and adequately protect the interests of the Unverified Kinship Subclass. There are no conflicts of interest between P.O., S.R., M.R., J.R., A.R., and S.S. and the other Unverified Kinship Subclass members. Moreover, the proposed Next Friends of P.O., S.R., M.R., J.R., A.R., and S.S., who sue on their behalf, are dedicated to their best interests, familiar with this litigation, and willing and able to pursue this case on behalf of P.O., S.R., M.R., J.R., A.R., S.S., and the Unverified Kinship Subclass that they seek to represent. 76. Each Named Plaintiff appears by a Next Friend, and each Next Friend is sufficiently familiar with the facts of the child’s situation to fairly and adequately represent the child’s interests in this litigation. 77. Plaintiffs’ counsel are: a. attorneys from the firm Canales & Simonson, P.C., a law firm in Corpus Christi; b. attorneys from the firm Haynes and Boone, LLP, an international law firm with Texas offices in Austin, Dallas, Fort Worth, Houston, and San Antonio; c. attorneys from the firm Yetter Coleman LLP, a Texas law firm with offices in Houston and Austin; and d. attorneys from Children’s Rights, a non-profit advocacy organization with its office in New York. 78. These lawyers have extensive experience litigating complex class action lawsuits in federal court, including substantial experience in child welfare class action institutional reform litigation. Plaintiffs’ attorneys have committed sufficient resources to represent the General Class and Subclasses. Plaintiffs’ counsel therefore are well suited to fairly and adequately
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represent the interests of the General Class and the Subclasses.
79. Defendants have acted or failed to act on grounds generally applicable to the General
Class and the Subclasses, necessitating declaratory and injunctive relief for the General Class
and the Subclasses. Plaintiffs’ counsel know of no conflicts among General Class or Subclass
members.
PRAYER FOR RELIEF
80. WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action;
b. Order that Plaintiff Children 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’ violation of Plaintiff Children’s substantive right to be free from harm under the due process clause of the Fourteenth Amendment to the United States Constitution, and Defendants’ violation of Plaintiff Children’s rights under the First, Ninth and Fourteenth Amendments to the United States Constitution;
d. Enter a permanent injunction as to all children in the General Class requiring Defendants to ensure that all children in the General Class are assigned DFPS caseworkers whose individual caseloads do not exceed the caseload standards established by the Child Welfare League of America and/or the Council on Accreditation;
e. Enter a permanent injunction as to all children in the Licensed Foster Care Subclass requiring (1) that an assessment by qualified professionals be conducted to determine (i) the aggregate need of all children in the Subclass for additional placements that will provide the necessary number, geographic distribution, and array of placement options for all children in the Subclass; (ii) the time period during which these placements will be developed; and (iii) the steps necessary to implement these placement options; and (2) Defendants implement the steps determined to be necessary by the foregoing assessment within the time period determined by that assessment.
f. Enter a permanent injunction as to all children in the Licensed Foster Care Subclass requiring (1) that an assessment by qualified professionals be conducted to determine (i) the resources and processes necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to Defendants’ foster care placements; (ii) the time period during which these resources
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and processes will be developed and implemented; and (iii) the steps necessary to develop and implement these resources and processes; and (2) Defendants implement the steps determined to be necessary by the foregoing assessment within the time period determined by that assessment. g. Enter a permanent injunction as to all children in the Foster Group Home Subclass requiring that Defendants cease placing children in foster group homes until those foster group homes are operated in compliance with accepted professional standards; h. Enter a permanent injunction as to all children in the Basic Care GRO Subclass requiring that Defendants cease placing children needing only basic child care services in non-emergency general residential operations; i. Enter a permanent injunction as to all children in the Unverified Kinship Subclasss as follows: i. Requiring that kinship homes be licensed or verified in accordance with the same
standards used by Defendants to license or verify foster care placements; ii. Requiring that kinship caregivers receive the same training for the care of
children that is provided by Defendants to licensed and verified foster parents; and iii. Requiring that children in kinship homes receive the same monthly foster care financial support that Defendants provide to children living with licensed or verified foster parents; j. Appoint a Neutral Monitor to oversee the implementation of this order and to issue periodic reports to the Court. k. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920, 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and l. Grant such other and further equitable relief as the Court deems just, necessary, and proper to protect Plaintiff Children from further harm by Defendants.
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Dated: May 9, 2013
/s/ Marcia Robinson Lowry Marcia Robinson Lowry (admitted pro hac vice) Stephen A. Dixon (admitted pro hac vice) Patrick Almonrode (admitted pro hac vice) Adam Dembrow (admitted pro hac vice) Christina Wilson (admitted pro hac vice) Melissa Cohen (admitted pro hac vice) Adriana T. Luciano (admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 mlowry@childrensrights.org sdixon@childrensrights.org palmonrode@childrensrights.org adembrow@childrensrights.org cwilson@childrensrights.org mcohen@childrensrights.org aluciano@childrensrights.org
R. Paul Yetter State Bar No. 22154200 S.D. Tex. Bar No. 3639 Dori Kornfeld Goldman State Bar No. 24041274 S.D. Tex. Bar No. 591632 Lonny Hoffman State Bar No. 00784282 S.D. Tex. Bar No. 15688 Christopher D. Porter State Bar No. 24070437 S.D. Tex. Bar No. 1052367 April L. Farris State Bar No. 24069702 S.D. Tex. Bar No. 1133331 YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 Facsimile: (713) 632-8002 pyetter@yettercoleman.com dgoldman@yettercoleman.com lhoffman@yettercoleman.com cporter@yettercoleman.com afarris@yettercoleman.com
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Respectfully Submitted:
J.A. “Tony” Canales State Bar No. 03737000 S.D. Tex. Bar No. 1163 Hector Canales State Bar No. 24005961 S.D. Tex. Bar No. 29396 Patricia C. Bell State Bar No. 00793455 S.D. Tex. Bar No. 19506 CANALES & SIMONSON, P.C. 2601 Morgan Avenue Corpus Christi, Texas 78467-5624 Phone: (361) 883-0601 Facsimile: (361) 884-7023 tonycanales@canalessimonson.com hacanales@canalessimonson.com pmcanales@canalessimonson.com Attorneys-in-Charge
Barry F. McNeil State Bar No. 13829500 S.D. Tex. Bar No. 14914 R. Thaddeus Behrens State Bar No. 24029440 S.D. Tex. Bar No. 916025 David Dodds State Bar No. 00790595 S.D. Tex. Bar No. 35024 Amelia J. Cardenas State Bar No. 24056681 S.D. Tex. (admitted pro hac vice) HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Phone: (214) 651-5000 Facsimile: (214) 200-0535 barry.mcneil@haynesboone.com thad.behrens@haynesboone.com david.dodds@haynesboone.com amelia.cardenas@haynesboone.com
Attorneys for Plaintiffs and the Proposed General Class and Subclasses

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of May, 2013, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to all CM/ECF participants, and that I have mailed by United States Postal Service the pleading to all non-CM/ECF participants.
/s/ Marcia Robinson Lowry Marcia Robinson Lowry

 
 Case 2:11-cv-00084

Document 368 Filed in TXSD on 12/17/15
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

Page 1 of 260
United States District Court Southern District of Texas
ENTERED
December 17, 2015
David J. Bradley, Clerk

M.D.; bnf STUKENBERG, et al.,
Plaintiffs, VS.
GREG ABBOTT, et al.,
Defendants.

§

§

§

§

CIVIL ACTION NO. 2:11-CV-84

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§

§

§

MEMORANDUM OPINION AND VERDICT OF THE COURT

Named Plaintiffs brought this class action under 42 U.S.C. § 1983 against officials of the

State of Texas. Plaintiffs claim that Texas violates their Fourteenth Amendment substantive due

process rights, including “the right to be reasonably safe from harm while in government custody

and the right to receive the most appropriate care, treatment, and services” by how the State and

its officials manage the Department of Family and Protective Services and the departments under

its control. The Court has subject matter jurisdiction over this case under 28 U.S.C. § 1331.

Because the issues to be decided are fact intensive, the Court’s opinion is lengthy.

TABLE OF CONTENTS

I. BACKGROUND .................................................................................................................... 4

A. Procedural History ........................................................................................................ 4

II. FINDINGS OF FACT AND LAW......................................................................................... 5

A. Overview of Texas Foster Care .................................................................................... 5

B. Plaintiffs’ Claims ........................................................................................................ 11

C. Constitutional Rights .................................................................................................. 14

D. Evidence Summary ..................................................................................................... 22

1. Reports ........................................................................................................................ 23

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2. National Standards ...................................................................................................... 25 3. Child and Family Service Reviews............................................................................. 27 4. Witnesses .................................................................................................................... 28
a. Fact Witnesses ............................................................................................................ 28 b. Expert Witnesses......................................................................................................... 39 5. Named Plaintiffs ......................................................................................................... 56 a. M.D. ............................................................................................................................ 56 b. D.I. .............................................................................................................................. 73 c. S.A. ............................................................................................................................. 79 d. A.M. ............................................................................................................................ 90 e. J.S................................................................................................................................ 97 f. H.V., J.V, and P.O. ................................................................................................... 105 g. Z.H. ........................................................................................................................... 128 h. K.E. ........................................................................................................................... 132 i. L.H. and C.H. ............................................................................................................ 141 J. J.R., M.R., and S.R. ................................................................................................... 150 k. S.S. ............................................................................................................................ 152 L. A.R. ........................................................................................................................... 154 III. PRELIMINARY ISSUES ................................................................................................... 155 IV. DISCUSSION ..................................................................................................................... 160 A. General Class ............................................................................................................ 160 1. DFPS is Deliberately Indifferent Toward Caseload Levels...................................... 186 2. DFPS Substantially Departs from Professional Judgment
Toward CVS Caseworkers........................................................................................ 199 B. Licensed Foster Care Subclass.................................................................................. 199
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1. Insufficient Oversight ............................................................................................... 200 a. DFPS is Deliberately Indifferent Toward RCCL Operations ................................... 212 b. DFPS Substantially Departs from Professional Judgment Toward RCCL Operations ........................................................................................ 215
2. The State Maintains an Inadequate Placement Array ............................................... 217 a. DFPS is Deliberately Indifferent Toward its Placement Array ................................ 227 b. DFPS Substantially Departs from Professional Judgment Toward its Placement Array ..................................................................................... 233
C. Foster Group Home Subclass.................................................................................... 234 1. DFPS is Deliberately Indifferent Toward Foster Group Homes .............................. 239 2. DFPS Substantially Departs from Professional Judgment Toward Foster Group Homes.................................................................................... 240
V. REMEDY............................................................................................................................ 242 VI. CONCLUSION................................................................................................................... 254 VII. GLOSSARY ....................................................................................................................... 256
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I. BACKGROUND
A. Procedural History Plaintiffs are minor children in the Permanent Management Conservatorship (“PMC”) of
the Texas Department of Family and Protective Services (“DFPS”).1 Plaintiffs filed suit through their next friends on March 29, 2011, seeking injunctive relief against Rick Perry, Governor of Texas; Thomas Suehs, Executive Commissioner of the Texas Health and Human Services Commission;2 and Anne Heiligenstein, Commissioner of DFPS (collectively “Defendants”), in their official capacities.3 (D.E. 1). Shortly thereafter, Plaintiffs filed a Motion for Class Certification. The Court granted their motion, holding that the requirements of Fed. R. Civ. P. 23 had been met. (D.E. 49).
Defendants filed an interlocutory appeal of the class certification to the Fifth Circuit Court of Appeals pursuant to Fed. R. Civ. P. 23(f). (D.E. 63). While the appeal was pending, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In light of Wal-Mart, the Fifth Circuit vacated the class certification order and remanded the case. M.D. ex rel. Stukenberg v. Perry (M.D. I), 675 F.3d 832 (5th Cir. 2012). Plaintiffs filed a second Motion for Class Certification in October 2012. (D.E. 160). After a three-day hearing in January 2013, the Court found that the requirements of Fed. R. Civ. P. 23(a), as explained in Wal-Mart, were
1 There is an acronym glossary at the end of the Opinion. 2 The Health and Human Services Commission oversees and administers the agencies in Texas’s Health and Human Services system, which includes DFPS. See Tex. Gov’t Code Ann. § 531.0055. 3 Greg Abbot has since replaced Perry as Governor of Texas, Kyle Janek has since replaced Suehs as Executive Commissioner of the Health and Human Services Commission, and John J. Specia, Jr. has replaced Heiligenstein as Commissioner of DFPS.
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satisfied. The Court certified a General Class and three subclasses on August 27, 2013. M.D. v. Perry (M.D. II), 294 F.R.D. 7 (S.D. Tex. 2013). The certified classes are defined as follows:
a. General Class: all children now, or in the future, in the Permanent Managing Conservatorship of the State of Texas;
b. Licensed Foster Care Subclass: all members of the General Class who are now or will be in a licensed or verified foster care placement, excluding verified kinship placements;
c. Foster Group Home Subclass: all members of the General Class who are now or will be in a foster group home; and
d. Basic Care General Residential Operation Subclass: all members of the General Class who are now or will be in a general residential operation and who are or will be receiving solely non-emergency, Basic childcare services.
Id. at 67. The Court denied certification of a fourth subclass for children in unverified kinship placements because it lacked adequate representation. Id. at 63. Defendants filed an untimely Petition for Permission to Appeal the Class Certification Order, which the Fifth Circuit dismissed on November 19, 2013. M.D. ex rel. Stukenberg v. Perry, 547 F. App’x 543 (5th Cir. 2013).
II. FINDINGS OF FACT AND LAW Pursuant to Fed. R. Civ. P. 52(a), the Court makes the following findings of fact and conclusions of law. Any finding of fact that also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law that also constitutes a finding of fact is adopted as a finding of fact. All of the Court’s findings of fact and conclusions of law are based upon a preponderance of the evidence. A. Overview of Texas Foster Care The Texas Department of Family and Protective Services is the agency responsible for protecting the State’s children, elderly, and disabled. Two DFPS divisions are pertinent to this case: Child Protective Services (“CPS”) and Child Care Licensing (“CCL”). Both divisions
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work directly with families, children, and childcare providers to protect all of Texas’s children, whether or not they are in foster care. (DX 31 at 6-7). CCL is made up of two divisions: the Residential Child Care Licensing (“RCCL”) division focuses on protecting children living in licensed foster care placements; the Performance Management Unit (“PMU”) provides quality assurance for all of DFPS. Id. at 163, 171. John J. Specia, Jr. (“Specia”) is the Commissioner and overall chief executive officer of DFPS. Id. at 4. He is DFPS’s seventh Commissioner since 2004. An Assistant Commissioner heads each division: Lisa Black (“Black”) is Assistant Commissioner for CPS; Paul Morris (“Morris”) is Assistant Commissioner for CCL.4 Specia, Black, and Morris each acquired their position after this case began.
When CPS determines that it is not safe for a child to live with her legal guardian, CPS petitions a court to remove the child and to obtain Temporary Managing Conservatorship (“TMC”). (DX 31 at 80). If TMC is granted, DFPS (through CPS) takes custody of the child, placing her in a temporary living arrangement with a certified caregiver or a family member. TMC lasts up to one year unless a court extends it another six months. Id. at 80. CPS’s goal for each child is “permanency,” which is achieved when a child returns home after it is safe, moves in with a relative long-term, is adopted by a new family, or ages out of foster care at age 18.5 Id. at 73. Permanency is the “most important wellbeing issue” for foster children because it removes them from foster care and into stable environments where they better develop into successful adults. (D.E. 302 at 27, 38). As Commissioner Specia testified, “I want good foster care, but the answer is permanency.” (D.E. 331 at 48).
4 There is a chart of DFPS’s officer hierarchy at the end of the Opinion. (See Attachment 1; PX 811). 5 Extended foster care is available for youths over the age of 18 in limited circumstances. (DX 24 at 13).
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If the child has not achieved permanency at the end of TMC, the child enters the State’s Permanent Managing Conservatorship. (DX 31 at 80). There are approximately 17,000 children in TMC and 12,000 children in PMC at any given time. (Id. at 94; DX 119 at 72; DX 123). The change from TMC to PMC is significant. The act of designating children a “permanent” part of a foster care system is unique to Texas. (D.E. 299 at 60). Unlike TMC, PMC is considered a final order similar to reunification, adoption, or aging out. (DX 31 at 80).
In contrast with TMC children, PMC children do not have the same court deadlines or internal DFPS deadlines that their CVS caseworkers need to meet. (See D.E. 305 at 71). For example, Texas requires permanency review hearings once every four months for TMC children, but only once every six months for PMC children. Tex. Fam. Code Ann. §§ 263.305, 263.501. Likewise, Texas requires at least two permanency planning meetings and a status hearing for TMC children, but there is no such requirement for PMC children. See id. at § 263.001 et seq. Caseworkers also must review TMC children’s service plans four times in the first year, while PMC children’s service plans are only reviewed twice a year. (D.E. 311 at 12-13). CPS Regional Director Judy Bowman (“Bowman”) testified that a child’s service plan is critically important and functions as a road map for children’s path to permanency. Id. at 12. Also unlike TMC children, many PMC children do not have an attorney ad litem to set hearings and file pleadings with a court, or notify a court when the child needs assistance. (D.E. 299 at 60; D.E. 323 at 68). Most PMC children also do not have a Court Appointed Special Advocate (“CASA”), who are appointed by judges to watch over and advocate for foster children, even though a child’s CASA “usually is the only person who truly knows the child and knows how the
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child is really doing.” (PX 1988 at 17).6 Thus, the State effectively deprives many PMC children of an individual advocate. Anna Ricker (“Ricker”), the attorney ad litem and next friend of J.S., H.V., and P.O., testified that her clients in PMC “get ignored more.” (D.E. 326 at 226). Karen Langsley (“Langsley”), another attorney ad litem who represents TMC and PMC children, testified that there is significantly less attention paid by caseworkers to children once they enter PMC. (D.E. 323 at 67-68). As seen in the record, PMC children tend to receive fewer visits from primary caseworkers, visits that are less meaningful and more rushed, and overall more cursory casework. As one report explained, “Though the State’s responsibility for the child’s life and well-being does not change—and arguably increases—the attention paid to the child’s cases diminishes drastically. There is often a sense that the ‘clock stops ticking’ when the child enters Permanent Managing Conservatorship.” Id. at 15. Although all of the permanency options are available to PMC children, the State often “just maintain[s] them in foster care until they age[] out.” (D.E. 323 at 89-92).
DFPS has four service levels for children in its care, depending on a child’s physical and psychological needs: Basic, Moderate, Specialized, and Intense. (D.E. 328 at 91). The higher
6 CASA is a national volunteer organization with state and local member programs. “CASA volunteers are screened and highly trained and then appointed by judges to represent and advocate for a child’s best interests in the child protection system. CASA volunteers are each assigned to help one child or set of siblings at a time, so they can focus on giving that child or sibling group the individualized advocacy and attention they need.” Texas CASA, http://texascasa.org/ (last visited December 11, 2015). CASA volunteers “make sure [foster children] don’t get lost in the overburdened legal and social service system or languish in inappropriate group or foster homes. Volunteers stay with each case until it is closed and the child is placed in a safe, permanent home.” National CASA, www.casaforchildren.org/site/c.mtJSJ7MPIsE/b.5301303/k.6FB1/About_Us__CASA_for_Children.htm (last visited December 11, 2015).
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the service level, the more the State pays the foster care facility. (D.E. 322 at 90-92). Placements must be licensed to provide for children at specific service levels. Therefore, a child’s service level dictates which placements are available to her. See id.
PMC children are placed in a variety of residential settings. Approximately 90% of these placements are managed by private child-placing agencies (“CPAs”) that contract with the State. (DX 119 at 72). DFPS directly manages the remaining 10%. In both cases, RCCL is ultimately responsible for inspecting, investigating, and licensing. (DX 31 at 163-64).
Foster family homes are traditional foster homes that contain one to six children. (DX 109 at 1273). The State verifies these facilities and provides training and financial support to the caregivers. The verification process involves screening and inspecting the home to ensure it meets the requirements for the type of care it will provide. Foster group homes—facilities unique to Texas—contain 7 to 12 children but are otherwise almost identical to foster family homes. (See id.; DX 119 at 22). They are regulated and receive financial support, but, unlike other larger facilities, are not required to have awake-night supervision. Foster family and foster group homes can be “therapeutic,” meaning that the caregivers receive additional training to look after children with higher levels of care. Facilities that contain 13 or more children are called general residential operations (“GROs”). (DX 109 at 1273). They are subject to extensive regulations and receive financial support. GROs appear to have no capacity limit. One GRO in North Texas is authorized to house 437 children.7 Residential treatment centers (“RTCs”) are a type of GRO that provide therapeutic treatment “for children with serious emotional disturbances
7 See Texas Department of Family and Protective Services, Cal Farley’s Boys Ranch, https://www.dfps.state.tx.us/Child_Care/Search_Texas_Child_Care/ppFacilityDetails.asp?ptype=RC&fid=94127 (last visited November 3, 2015).
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or mental health issues.” (PX 1864 at 101; see also DX 109 at 1273). Most of Texas’s RTCs are in 3 of the State’s 11 DFPS Regions, with a disproportionate number around Houston, and none south of San Antonio. (D.E. 327 at 203).8 GROs and RTCs are also called “congregate care facilities.” Foster family homes are the least restrictive, most family-like placement. Foster group homes, GROs, and RTCs are progressively more restrictive.
Texas also uses kinship placements,9 in which a child is placed with a relative or someone with a longstanding and significant relationship with the child or the child’s family. Kinship placements, whether verified or unverified, must be approved by DFPS and have a home assessment. (DX 109 at 430, 1173). If verified, they undergo the same licensing requirements as a foster family home, the caregivers have the same training requirements as foster parents, and the homes receive the same financial assistance as foster homes. If unverified, they are eligible for limited monetary assistance and the caregivers are not required to complete the training provided for foster parents.
Texas’s foster care system has a checkered history. In 2009, the Texas Legislature and Governor Perry formed the Texas Adoption Review Committee “to take a hard look at the Texas foster care system.” (PX 1964 at 2). The Committee conducted a ten-month review, which included testimony from DFPS employees, foster care advocates, policy analysts, foster and adoptive parents, CPAs, and experts from ten areas of DFPS. Id. at 8. The Committee reviewed articles, reports, and publications, including one by the Child Welfare League of America (“CWLA”), one by Specia (not yet DFPS Commissioner), and a report by Texas Appleseed that had previously been submitted to the Texas Supreme Court Commission for Children, Youth,
8 There is a map of DFPS’s Regions at the end of the Opinion. (See Attachment 2; PX 806) 9 Although the Court did not certify the Unverified Kinship Subclass, these children are still in the General Class.
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and Families. Id. at 25-28. After drafting its recommendations, the 2009 Committee unearthed a report from 1996, produced by a similarly charged committee that was formed by Governor George W. Bush. Id. at 2, 7. The 2009 Committee found that 11 of its 14 general recommendations were made in 1996, leading it to conclude that “many of the same problems identified in 1996” had not been fixed. Id. at 2, 7-12. The Committee released its final report in December 2010. At the outset the report notes that, despite the good intentions and hard work of the people involved in Texas’s child welfare system, “there is increasing evidence to show that our foster care system is sometimes doing more harm to our children than good.” Id. at 2.
B. Plaintiffs’ Claims Plaintiffs’ claims have changed substantially over the course of this litigation. In their
Original Complaint, Plaintiffs alleged a variety of problems with Texas’s management of foster care and claimed that the State’s mismanagement violated the rights of children in the State’s PMC. (See D.E. 1). The Fifth Circuit vacated the first Class Certification Order, doubting whether Plaintiffs could “even advance a due process claim based on a bare finding that Texas has ‘organized or managed’ DFPS improperly.” M.D. I, 675 F.3d at 841 n.3. In response, Plaintiffs narrowed and re-characterized their allegations, and proposed four subclasses. The Court certified one General Class and three subclasses. M.D. II, 294 F.R.D. 7; supra Section I.A. For each certified class, Plaintiffs allege that DFPS’s “policies and practices result in structural deficiencies” that place the class members “at an unacceptable risk of harm” in violation of the Fourteenth Amendment. (D.E. 215 at 2, 17, 18, 19). The Court understands Plaintiffs’ argument as saying that each policy and practice does not, on its own, have to result in a constitutional violation. Although some policies and practices may reach this threshold, Plaintiffs also argue that the State’s combined policies and practices for each certified class
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create structural deficiencies, which violate class members’ Fourteenth Amendment right to be free from an unreasonable risk of harm while in State custody. See Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986) (“In determining the constitutional question, we need not separately weigh each of the challenged institutional practices and conditions, for we instead look to ‘the totality of conditions.’”) (citation omitted). Plaintiffs’ specific claims break down as follows: On behalf of the General Class:
(1) DFPS does not employ enough primary conservatorship caseworkers, causing those workers to have excessive caseloads, which prevents them from properly fulfilling their required duties, protecting the children in the State’s custody.
(2) Caseworkers’ excessive caseloads increase caseworker turnover, further worsening caseloads and initiating a vicious cycle.
(3) By not having the time and resources to adequately monitor the children assigned to them, caseworkers cannot ensure that Plaintiffs are free from an unreasonable risk of harm while in the State’s care.
(4) These practices and policies, separately and combined, cause an unreasonable risk of harm to all General Class members.
(5) The State’s practices and policies substantially depart from professional judgment. (6) The State is aware of these risks, yet refuses to assess or address them. On behalf of the Licensed Foster Care Subclass: (1) The State does not exercise sufficient oversight of the facilities in which foster
children are placed by failing to properly investigate and inspect those facilities and hold them accountable for licensing violations.
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(2) Defendants do not properly track incidents of child-on-child abuse. (3) The State maintains an insufficient number, geographic distribution, and array of
placements, such that foster children cannot be placed in homes or facilities appropriate for their needs, in their home communities. (4) These practices and policies, separately and combined, cause an unreasonable risk of harm to all Licensed Foster Care Subclass members. (5) The State’s practices and policies substantially depart from professional judgment. (6) The State is aware of these risks, yet refuses to assess or address them. On behalf of the Foster Group Home Subclass: (1) The State’s foster group homes are deficient:
(a) Group home caregivers are not properly trained or qualified; (b) Group homes lack sufficient professional staff; (c) Group homes do not require 24-hour awake-night supervision like other
congregate care facilities; and (d) The State does not restrict the placement of unrelated children of different
genders, ages, and service levels in the same group home. (2) These practices and policies, separately and combined, cause an unreasonable risk of
harm to all Foster Group Home Subclass members. (3) The State’s practices and policies substantially depart from professional judgment. (4) The State is aware of these risks, yet refuses to assess or address them. On behalf of the Basic Care GRO Subclass: (1) The State places children who need only Basic-level childcare services in GROs (and
sometimes RTCs) due to a lack of appropriate placements.
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(2) Placing Basic-level children in GROs causes neglect, maltreatment, and institutionalizes otherwise healthy children.
(3) This practice causes an unreasonable risk of harm to all Basic Care GRO Subclass members.
(4) The State’s practice substantially departs from professional judgment. (5) The State is aware of this risk, yet refuses to assess or address it. C. Constitutional Rights The State generally does not have an obligation to protect citizens from private harm. DeShaney v. Winnebago Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989). However, “in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection.” Id. at 198-200. These duties arise when the State takes a person into custody, thereby limiting that person’s freedom to act on her own behalf. Id. at 200. Custody, in other words, creates a “special relationship” between the State and that person, which triggers a constitutional duty to provide basic needs. Id. The State’s affirmative duty of care and protection for people in custody was first identified for prisoners. Estelle v. Gamble, 429 U.S. 97 (1976), held that the Eighth Amendment’s prohibition of cruel and unusual punishment obliged the State to provide medical care for prisoners. By depriving inmates of the ability to care for their own medical needs, the State assumed that affirmative duty. Id. at 103-04. These rights were extended into the Fourteenth Amendment in the context of patients involuntarily committed to state mental institutions. In Youngberg v. Romeo, 457 U.S. 307 (1982), the Supreme Court reasoned, “If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed—who may not be punished at all—in
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unsafe conditions.” Id. at 315-16. The Supreme Court held that patients in these settings possessed the right to “food, shelter, clothing, medical care,” and safe living conditions, which the State must provide. Id. Likewise, pretrial detainees who are injured while in police custody have the constitutional right to medical care. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Although the Eighth Amendment does not apply to pretrial detainees because they have not been convicted of a crime, the Fourteenth Amendment provides the affirmative duty of care. See Youngberg, 457 U.S. at 315-16. These cases stand for the straightforward proposition that when the State restrains an “individual’s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty,” the State assumes an affirmative duty to provide basic needs. DeShaney, 489 U.S. at 200.
State custody of a child creates a “special relationship” that triggers substantive due process protections. The Fifth Circuit first recognized this special relationship, and the State’s corresponding duty to provide “constitutionally adequate care,” in Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990). More recently and more explicitly, the Fifth Circuit held that, under the Fourteenth Amendment, the State owes its foster children “personal security and reasonably safe living conditions.” Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004); see also Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 859 (5th Cir. 2012) (recognizing foster care as one of the “strictly enumerated” situations where the State assumes a duty of care sufficient to create a special relationship). Put another way, foster children have the right to be free from an unreasonable risk of harm.
The Fifth Circuit is not alone. With near unanimity, the other circuits have found that states owe a duty of care to their foster children. See e.g., Tamas v. Dep’t of Social & Health Servs., 630 F.3d 833, 846-47 (9th Cir. 2010); James ex rel. James v. Friend, 458 F.3d 726, 730
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(8th Cir. 2006); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000); Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir. 1994); Yvonne L. ex rel. Lewis v. N.M Dep’t of Human Servs., 959 F.2d 883, 892 (10th Cir. 1992); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 848-49 (7th Cir. 1990); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987); Doe v. N.Y. Dep’t of Soc. Servs., 649 F.2d 134, 144-45 (2d Cir. 1981); Connor B. ex rel. Vigurs v. Patrick (Connor B. I), 771 F. Supp. 2d 142, 160 (D. Mass. 2011) (“Courts have found, with apparent unanimity, that [a special] relationship exists in the foster-care context.”); see also DeShaney, 489 U.S. at 201 n.9. Most circuits consider this right “clearly established” for qualified immunity purposes. See Tamas, 630 F.3d at 846-47 (surveying the circuit courts and finding that, by 1996, foster children had a “clearly established” liberty interest in safe foster care placements).
A foster child’s right to be free from an unreasonable risk of harm “encompasses a right to protection from psychological as well as physical abuse.” R.G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006); see also LaShawn A. by Moore v. Kelly, 762 F. Supp. 990, 993 (D.D.C. 1991). Moreover, foster children “have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being.” Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996); accord K.H. ex rel. Murphy, 914 F.2d at 848 (“The extension to the case in which the plaintiff’s mental health is seriously impaired by deliberate and unjustified state action is straightforward.”). Harm, both psychological and physical, can be inflicted in a variety of ways, including neglect, physical abuse, sexual abuse, and psychological maltreatment. “[T]he Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.” K.H. ex rel. Murphy, 914 F.2d at 851 (citing Youngberg, 457 U.S. 307).
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Foster children need not wait until actual harm occurs before obtaining relief. This has been made most explicit in the prison context, where the right is characterized as the right “not to be subjected to the unreasonable threat of injury.” Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985). Unreasonable threats of injury to prisoners, such as poor fire safety conditions, are themselves violations of a prisoner’s constitutional rights. Id. at 784; see also Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977). As such, prisoners can obtain relief from unreasonable conditions even when no fire has occurred. The risk of harm is the legal injury. In the foster care context, a structural deficiency that puts foster children at an unreasonable risk of harm is the legal injury. See Hernandez, 380 F.3d at 881 (explaining that “the risk of severe physical abuse to a foster child’s bodily integrity” is the legal injury).
Defendants acknowledge foster children’s constitutional right to personal security and reasonably safe living conditions. Defendants argue, however, that foster children do not possess an “unlimited” right “to be free from an unreasonable risk of harm,” (D.E. 277 at 29; D.E. 359 at 47), and that the Court should “resist the temptation to augment the substantive reach of the Fourteenth Amendment.” (D.E. 163 at 22 (quoting Griffith, 899 F.2d at 1435)). The Court disagrees. There is no difference between harm in general and harm to personal security and reasonably safe living conditions. All harms affect either a foster child’s person or environment, and the right to be free from an unreasonable risk of these harms is unlimited. The Court holds that foster children have a Fourteenth Amendment substantive due process right to be free from an unreasonable risk of harm caused by the State.
Plaintiffs also claim that foster children have a Fourteenth Amendment right to the “most appropriate care, treatment, and services.” (D.E. 215 at 19). Plaintiffs have aimed too high, at least by substantive due process standards. Foster children have the right to “minimally
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adequate” care, treatment, and services such that it prevents an unreasonable risk of harm. Youngberg, 457 U.S. at 321; Hernandez, 380 F.3d at 880. They do not have a constitutional right to the most appropriate care, treatment, and services.
To succeed on their substantive due process claim, Plaintiffs must show that: (1) the State has acted in a way that breached the duty of care it owes to foster children in its custody, namely the duty to keep them free from an unreasonable risk of harm; and (2) the State action that did so rises to the requisite level of culpability. In making the latter determination in challenges to executive action, the State will be liable if its alleged action “shocks the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); Rochin v. California, 342 U.S. 165, 172 (1952); Hernandez, 380 F.3d at 880. Determining the level of culpability that “shocks the conscience” in the foster care context, however, has proven elusive. Courts have articulated culpability standards to further define the test, two of which—deliberate indifference and substantial departure from professional judgment—the parties dispute. (D.E. 195 at 48-49).
In Estelle, the Supreme Court held that “deliberate indifference” to a prisoner’s serious medical needs states a cause of action under the Eighth Amendment. 429 U.S. at 106. Deliberate indifference is determined by a subjective standard of recklessness: “the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The State must have consciously disregarded a known and excessive risk to the victim’s health and safety. Farmer, 511 U.S. at 837.
Six years later, the Supreme Court refused to apply the deliberate indifference standard when considering the rights of involuntarily committed patients at mental facilities. Youngberg,
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457 U.S. at 321-22. Under the Fourteenth Amendment, as opposed to the Eighth Amendment at issue in Estelle, the rights of persons involuntarily committed to mental facilities are violated if the State substantially departs from professional judgment. Id. at 323. According to the professional judgment standard, a decision “if made by a professional, is presumptively valid; liability may be imposed 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.” Id. The main difference between the two standards is that the professional judgment standard does not require the State to know that the person in its custody will be harmed. Youngberg justified the less demanding standard by stating, “Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Id. at 321-22 (comparing to Estelle, 429 U.S. at 104).
The Supreme Court discussed, but did not decide, the contours of foster children’s substantive due process rights in DeShaney. The DeShaney Court explained that it is the deprivation of a person’s liberty, not what motivates the deprivation, that triggers the Constitution’s protection. 489 U.S. at 200. This seems to signal a uniform liability standard for any person in state custody, but DeShaney never reached this question. Because the child in DeShaney was harmed in the custody of private actors, the Court found there was no special relationship between the child and the State, and therefore did not decide between the deliberate indifference and professional judgment standard.
The Supreme Court’s most recent comment in this area comes from County of Sacramento v. Lewis. 523 U.S. 833. Lewis made clear that both the deliberate indifference and professional judgment standards remain good law, and are simply more precise articulations of
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the “shocks the conscience” standard. Id. at 850. According to Lewis, “Rules of due process are not . . . subject to mechanical application in unfamiliar territory.” Thus, “Deliberate indifference that shocks in one environment may not be so patently egregious in another.” Id. Youngberg “can be categorized on much the same terms.” Id. at 852 n.12.
In the Fifth Circuit, a foster care plaintiff must prove deliberate indifference to have a substantive due process cause of action. The Fifth Circuit has emphasized that the deliberate indifference test is a “significantly high burden for plaintiffs to overcome.” Hernandez, 380 F.3d at 882 (citing Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 218 (5th Cir. 1998)). The test demands “a degree of culpability beyond mere negligence or even gross negligence; it must amount to an intentional choice, not merely an unintentional oversight.” Hall v. Smith, 497 Fed. Appx. 366, 377 (5th Cir. 2012). Liability based on deliberate indifference is inappropriate if an official can demonstrate “that [she] did not know of the underlying facts indicating a sufficiently substantial danger and that [she was] therefore unaware of a danger, or that [she] knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844. Moreover, an official who is aware of a substantial risk of serious harm is not deliberately indifferent if she “responded reasonably to the risk, even if the harm ultimately was not averted.” Id.
Yet the “high burden” is not insurmountable. To prove deliberate indifference, “it is enough that the state official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Hernandez, 380 F.3d at 881 (citing Farmer, 511 U.S. at 842). “[A]n obvious showing that the state . . . exhibited a conscious disregard for known severe physical abuses in a state-licensed foster home by itself sufficiently demonstrates deliberate indifference to a child’s right to personal security.” Hernandez, 380 F.3d at 881. Actual knowledge of a substantial risk
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of harm can be inferred if “the risk of harm is obvious.” Id. (citing Hope v. Pelzer, 536 U.S. 730, 738 (2002)).
Most circuits apply the deliberate indifference standard to foster care cases. See, e.g., Tamas, 630 F.3d at 844 (9th Cir. 2010); James, 458 F.3d at 730 (8th Cir. 2006); J.H. ex. rel Higgin v. Johnson, 346 F.3d 788, 792 (7th Cir. 2003); Nicini, 212 F.3d at 808 (3d Cir. 2000); Lintz, 25 F.3d at 305 (6th Cir. 1994); Taylor v. Ledbetter, 818 F.2d at 795 (11th Cir. 1987); Doe, 649 F.2d at 144-45 (2d Cir. 1981). In this case, Defendants argue that deliberate indifference applies.
Plaintiffs, however, point out that some circuits, relying on Youngberg, use the professional judgment standard in foster care cases. After all, foster children bear a closer resemblance to the patient in Youngberg than the prisoner in Estelle: their rights derive from the Fourteenth Amendment rather than the Eighth, and they are not in the State’s custody to be punished. The Tenth Circuit, for example, recently used the professional judgment standard in a foster care case. Schwartz v. Booker, 702 F.3d 573, 580 (10th Cir. 2012); see also Yvonne L., 959 F.2d at 893-94. Although the First Circuit has not decided the issue, two of its district courts recently used the professional judgment standard. See Cassie M. ex. rel. Irons v. Chafee, 16 F. Supp. 3d 33, 43-44 (D.R.I. 2014), vacated on other grounds sub nom. Danny B. ex rel. Elliott v. Raimondo, 784 F.3d 825 (1st Cir. 2015); Connor B. I, 771 F. Supp. 2d at 163.
Plaintiffs also note that courts have decided which standard to apply based on whether the remedy requested is monetary damages or injunctive relief. When injunctive relief is sought, as it is here, some courts use the professional judgment standard. See, e.g., LaShawn A., 762 F. Supp. at 996 n.29 (D.D.C. 1991); Cassie M., 16 F. Supp. 3d at 47 (D.R.I. 2014). Deliberate indifference applies for monetary damages, the reasoning goes, because monetary damages may
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have a chilling effect on state policymakers. LaShawn A., 762 F. Supp. at 996 n.29. Courts are less concerned with a chilling effect when Plaintiffs seek only injunctive relief, and therefore apply the less stringent professional judgment standard. Id.
All that said, when deciding whether state action shocks the conscience in the foster care context, cases often come out the same regardless of which standard is applied. See, e.g., Yvonne L., 959 F.2d at 894 (“As applied to a foster care setting we doubt there is much difference in the two standards.”); Connor B. I, 771 F. Supp. 2d at 162 n.4 (“It is far from obvious, however, that the professional judgment standard creates an appreciably lower hurdle for plaintiffs in this foster care case . . . in this context the decision seems to matter little.”); LaShawn A., 762 F. Supp. at 996 n.30 (“The Court notes that although it has applied the professional judgment standard to this case, the result would have been the same had it used the deliberate indifference standard.”).
Again, the main difference between the standards is that the professional judgment standard does not require the State to have actual knowledge that foster children will be harmed. This difference, however, is dulled by Hernandez’s statement that actual knowledge can be inferred when “the risk of harm is obvious.” 380 F.3d at 881 (citing Hope, 536 U.S. at 738). Yet, in light of the uncertainty, the Court analyzed each claim under both standards. The Court holds that, judged by either standard, Texas’s conduct shocks the conscience.
D. Evidence Summary The Court carefully reviewed the Named Plaintiffs’ case files, the testimony of 28 fact
witnesses and 12 expert witnesses (as well as their expert reports, with a few exceptions), more than 400 exhibits (totaling over 390,000 pages), the parties’ briefs, and the relevant caselaw. For
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clarity, the Court outlined the more frequently cited reports and national standards, introduced the witnesses, and summarized the Named Plaintiffs’ narratives.
1. Reports Casey Family Programs. Casey Family Programs is the nation’s largest operating foundation focused on safely reducing the need for foster care. Its mission is to “provide and improve—and ultimately prevent the need for—foster care.”10 DFPS has contracted with Casey Family Programs on multiple occasions to provide internal reviews and assessments, as well as staff training and professional development. (See, e.g., DX 61). Texas Adoption Review Committee. The Texas Adoption Review Committee was created by the Texas Legislature and Governor Perry in 2009 “to take a hard look at the Texas foster care system and to uncover barriers to adoption that exist for Texas’ most vulnerable children.” (PX 1964 at 2). After a ten-month exhaustive review, the Committee released a final report in December 2010 providing recommendations for how DFPS can improve. Prior to releasing its report, the Committee found a report from 1996, produced by a similarly charged committee that was formed by Governor Bush. The 2009 Committee found that 11 of its 14 general recommendations were made in 1996, leading it to conclude that “many of the same problems identified in 1996” had not been fixed. (Id. at 2, 7-12; see also supra pp. 10-11). Texas Appleseed. Texas Appleseed is a nonprofit organization whose “mission is to promote justice for all Texans by using the volunteer skills of lawyers and other professionals to find practical solutions to broad-based problems facing the most vulnerable—including the State’s foster children.” (PX 1988 at 4). The Court reviewed Texas Appleseed’s 2007 and 2010 reports on Texas foster care. (PX 1966; PX 1988). The 2010 report was commissioned by the
10 Casey Family Programs, Who We Are, http://www.casey.org/about/ (last visited December 15, 2015).
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Supreme Court of Texas Permanent Judicial Commission for Children, Youth and Families, of which Specia and Defendant’s expert Dr. Jane Burstain (“Burstain”) were members before joining DFPS. (PX 1988 at 5).
Texas Comptroller Report, Forgotten Children. In April 2004, Texas Comptroller Carol Keeton Strayhorn published a report titled: Forgotten Children, A Special Report on the Texas Foster Care System. The 306-page report detailed a number of shortcomings in Texas’s foster care system. Although Forgotten Children is not itself in the record, it was frequently cited and relied on by reports that are in the record. (See, e.g., PX 1966 at 5-6).
Texas Sunset Advisory Commission. The Texas Sunset Advisory Commission is a 12member group created by the Texas Legislature to report on the conditions in Texas foster care and find ways to eliminate waste, duplication, and inefficiency. DFPS was mandated to provide unfettered access to the Sunset Commission, including allowing the Sunset Commission to survey all 11,000 DFPS employees, participate in CPS investigations, tour foster care facilities, meet with former foster children, and attend internal DFPS meetings. (PX 1861 at 131). The Sunset Commission issued its report in May 2014.
The Stephen Group. The Stephen Group is a highly regarded national business and government consulting firm. The Group has performed multiple child welfare consulting jobs across the country. Specia contracted with The Stephen Group in February 2014 to conduct an operational review of DFPS and CPS to figure out why so many problems remain despite “all the money and [effort] that have been put into the agency since 2006.” (D.E. 300 at 25; D.E. 331 at 45-46; PX 1993 at 9). Specia voluntarily provided The Stephen Group the same unfettered access that he was required to provide the Sunset Commission.
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2. National Standards Child Welfare League of America. The CWLA is “the nation’s oldest and largest membership-based child welfare organization.” (PX 2114 at 3). The CWLA’s professional standards are universally known and respected in the child welfare community. The Texas Legislature mentions the CWLA’s standards in its guidelines for DFPS. Council on Accreditation (“COA”). The COA is another respected national nonprofit organization that recommends professional standards for state child welfare systems. The COA’s standards are intended to guide foster care practices. States that meet COA standards are accredited. Only six states, not including Texas, have received COA accreditation. Plaintiffs frequently refer to the CWLA and COA standards to show that DFPS substantially departs from professional judgment. DFPS argues that a deviation from these standards of excellence does not prove a “substantial departure” from professional judgment. DFPS is correct, in part. A failure to meet CWLA and COA standards is not a per se constitutional violation. Professional standards, however, can be evidence for or against a constitutional violation. A “significant deviation” from professional standards could itself “constitute a substantial departure from accepted professional judgment that, under certain circumstances, may give rise to a substantive due process claim . . . .” Cassie M., 16 F. Supp. 3d at 48. A substantial departure from all relevant professional standards can also indicate that a professional was subjectively aware of, and opted to disregard, a substantial risk of serious harm, i.e., that the professional was deliberately indifferent. It is beyond question that DFPS is aware of CWLA standards. The Texas Legislature refers to the CWLA in discussing recommended caseloads for conservatorship workers: “Professional caseload standards . . . are established or are recommended for
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establishment for employees of health and human services agencies by management studies conducted for health and human services agencies or by an authority or association, including the Child Welfare League of America, the National Eligibility Workers Association, the National Association of Social Workers, and associations of state health and human services agencies.” Tex. Gov’t Code Ann. § 531.001(5). Furthermore, as of 2010, Texas (along with 37 other states) was a member of the CWLA. Although Texas did not need to recognize or adopt CWLA standards to become a member, Texas did have to pay dues, which gave it access to resources published or provided by the CWLA. (D.E. 302 at 47; D.E. 325 at 97).
Many courts have allowed experts to draw on CWLA and COA standards when analyzing foster care systems. Courts generally find that while neither standard imposes legal obligations on child welfare agencies, both are “reflective of the bar to which child welfare agencies are generally expected to measure up.” Connor B. ex rel. Vigurs v. Patrick (Connor B. II), 985 F. Supp. 2d 129, 136, 138, 151 (D. Mass. 2013); see also LaShawn A., 762 F. Supp. at 964, 966 (considering CWLA standards a relevant professional standard for assessing the District of Columbia child welfare agency); Kenny A. v. Perdue, 2004 WL 5503780, at *12 (N.D. Ga. Dec. 13, 2004) (finding that experts adequately relied on “accepted professional standards,” including those from CWLA and COA). Courts have found these standards relevant because they are “national in scope” and widely followed by child welfare agencies. Doe ex rel. G.S. v. Johnson, 52 F.3d 1448, 1454, 1462 (7th Cir. 1995).
The Court finds that CWLA and COA standards are relevant and admissible to help the Court determine whether DFPS’s challenged policies and practices constitute substantial departures from professional judgment. The Court also finds Texas’s knowledge of these standards relevant to whether the State is deliberately indifferent toward its polices and practices.
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3. Child and Family Service Reviews Texas relies heavily on its performance on the Child and Family Service Review (“Review”). The U.S. Department of Health and Human Services implemented the Review in 2001 to determine which states’ child and family welfare systems met the requirements of Titles IV-B and IV-E of the Social Security Act. (DX 143 at 1). The current Review (the third since inception) assesses states’ performance on seven indicators: (1) Maltreatment in Foster Care; (2) Recurrence of Maltreatment; (3) Permanency in 12 Months for Children Entering Foster Care; (4) Permanency in 12 Months for Children in Foster Care 12 to 23 Months; (5) Permanency in 12 Months for Children in Foster Care 24 Months or More; (6) Re-Entry to Foster Care in 12 Months; and (7) Placement Stability. Id. The first two indicators relate to children’s safety; the last five relate to children’s permanency. On Round 3 of the Review, Texas met the federal standard on six of seven indicators, falling short on number 5, Permanency in 12 Months for Children in Foster Care for 24 Months or Longer. (DX 147 at 1-18). The State argues that its compliance with these standards “contradicts” Plaintiffs’ claims of conscience-shocking deliberate indifference and evinces the “exercise, not total abdication, of professional judgment.” (D.E. 277, attachment 8, at 5). Defendants’ arguments are inapposite. Plaintiffs’ claims only relate to children in Texas’s PMC. Of the seven indicators, numbers 3 and 6 do not incorporate any data for PMC children, focusing exclusively on children who have been in foster care less than 12 months. Numbers 1, 2, 4, and 7 use data for both PMC and TMC children, muddling the ability to draw meaningful conclusions about only PMC children. As Defendant’s expert Burstain testified, “To really understand what’s happening, you have to look at sub-populations” and cannot rely on overall averages. (D.E. 330 at 191). The only indicator that exclusively accounts for Texas’s PMC children is the one that Texas failed.
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(D.E. 277, attachment 8, at 5; DX 147 at 1, 9-10). Yet even if Texas had met the national standard for Permanency in 12 Months for Children in Foster Care for 24 Months or Longer, that does not decide this case. Whether Texas meets the federal permanency standard as it relates to the Social Security Act—which it does not—does not answer whether Texas’s PMC foster children are placed at an unreasonable risk of harm due to either deliberate indifference or a substantial departure from professional judgment.
Additionally, Texas’s Review performance is based on data it submitted. (DX 143 at 1). As discussed infra, DFPS’s investigations of foster child maltreatment are woefully deficient and often inaccurate, making the State’s self-reported data unreliable. See Section IV.B.1. Even when DFPS discovered deficiencies in a large subset of its investigations, it did not update its submissions to the Review. Furthermore, DFPS does not even track certain abuse, such as childon-child abuse, which is included in the Review. (DX 143 at 2). Texas’s Review performance is therefore provides little, if any, reliable evidence for this case.
4. Witnesses a. Fact Witnesses
The Court heard from 28 fact witnesses, including six next friends and attorney ad litems of Named Plaintiffs, a leader of a nonprofit that works with former foster children, five former foster children, two former DFPS caseworkers, and 14 current DFPS officers.
Next Friends and Attorney Ad Litems. Karen Langsley is the next friend and attorney ad litem for former Named Plaintiff D.P. Langsley is a solo practitioner who primarily practices in child welfare and family law and regularly represents PMC children and parents in DFPS cases. She has been licensed in Texas since 2004 and currently practices in Austin and the surrounding counties. She was one of the first Texas lawyers certified as a Child Welfare Law
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Specialist by the American Bar Association, through the National Association of Counsel for Children. Langsley also sits on the State Bar Committee on Child Abuse and Neglect and annually teaches a day-long continuing legal education course on child welfare. That course is part of a four-day conference on Advanced Family Law, which is the largest seminar of its type in the country. (D.E. 323 at 60-67). Anna Ricker is the next friend and attorney ad litem for J.S., H.V., and P.O. Ricker has served as an attorney ad litem for 17 years, representing around 150 children in Texas’s PMC. She currently has between 10 and 12 PMC children on her caseload. Ricker also represented DFPS for four years as an Assistant District Attorney. She currently practices in West Texas, primarily in Levelland, Littlefield, and the surrounding counties. She often interacts with her clients’ conservatorship caseworkers. (D.E. 326 at 19798; D.E. 187 at 89). Javier Solis (“Solis”) is the next friend for S.A. Solis previously worked in the Cameron County District Attorney’s Office prosecuting CPS cases. Since June 2001, Solis has served as an attorney ad litem for over 900 children in DFPS’s custody. He currently practices in Cameron, Hidalgo, and Willacy Counties, representing 55 to 60 children in any given month. In his capacity as an attorney ad litem, Solis interacts with conservatorship caseworkers on a daily basis. (D.E. 323 at 6-7). Sarah Stukenberg (“Stukenberg”) is the next friend and attorney ad litem for M.D. She has practiced family law for over seven years in Texas, mainly representing foster children in Texas’s TMC and PMC, although she sometimes represents parents in CPS cases as well. (D.E. 324 at 211-12). Jennifer Talley (“Talley”) is the next friend for A.M. She has worked in child welfare for over 22 years. Talley worked for one year in a psychiatric hospital, primarily with foster youth, and worked for CPS for 12 years. At CPS, Talley first worked as a conservatorship caseworker with both TMC and PMC children, and then for seven years as a Preparation for Adult Living coordinator for Region 8. She has
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volunteered at a camp for older youths in foster care for over 24 years. Later, she worked for six and a half years with youths aging out of care through a private foundation and another two years with a CPA, focusing on adolescent adoptions. Her work with the Preparation for Adult Living program focused on ensuring that foster children aging out of care received independent living skills and other necessary post-foster care guidance and support. Through most of her time as PAL coordinator Talley was the sole full-time Region 8 PAL staff member, with only a half-time administrative assistant. The majority of the 800 children she worked with in this program were in Texas’s PMC. (D.E. 323 at 84-88). Estella Vasquez (“Vasquez”) is the next friend and attorney ad litem for L.H. and C.H. She has practiced family law and criminal law since 2008. Vasquez regularly serves as an attorney ad litem in Cameron County for children and parents in CPS cases. She represents over 100 children per year in such cases, and has represented over 600 children in Texas’s TMC and PMC as an attorney ad litem. (D.E. 327 at 187-95). Vasquez is also the elected city commissioner for the City of Brownsville.
Nonprofit Leader. Sandra Carpenter (“Carpenter”) runs Angel Reach, a nonprofit in Conroe, Texas that helps children who age out of foster care. Carpenter initially started Angel Reach to help children and their families in kinship placements. Although Angel Reach still works with kinship placement families, as of 2011 it switched its focus to transitional living programs for youths aging out of foster care, due to the large number of homeless former foster youths living in the Conroe area. Angel Reach provides these aged-out youths with independent living skills and tools. Id. at 11. Angel Reach houses up to 29 former foster youths and provides nonresidential services such as transportation, mentoring, education, and job placement for up to 20 others. Id. Since 2011, Carpenter has worked with approximately 180 former foster youths. Id. at 13. She was a foster parent for 65 children over 16 years. Id. at 6. (D.E. 307 at 4-13)
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Former Foster Children. Jordan Arce (“Arce”), Crystal Bentley (“Bentley”), Darryl Jackson (“Jackson”), Patricia Virgil (“Virgil”), and Kristopher Sharp (“Sharp”) are former foster youths who aged out of care. Arce, 19 years old at trial, entered foster care at age 14 and aged out at 18. (D.E. 324 at 48). Arce had six placements, including a children’s shelter, a foster home, a GRO, and kinship placements. Id. at 49, 51-52. His level of care was Basic throughout his time in the State’s custody. Id. at 53-54; see id. at 28-29. Today he is a student at Texas Tech University. Id. at 49. Bentley entered foster care at age 2 and aged out at 18. She was 23 years old at trial. Id. at 61. Bentley is a client of Angel Reach. Id. at 61-62. Bentley is currently a sophomore at Lone Star College and a client of Angel Reach. Id. at 61-62. Jackson, 18 years old at trial, entered Texas foster care at age 12 and aged out at 18. Id. at 183. While in Texas foster care, Jackson had between 35 and 40 placements, including foster family homes, foster group homes, and RTCs. Id. at 184, 187-88. Jackson is a client of Angel Reach. Id. at 183. When he aged out of care, Jackson was referred to Angel Reach by his caseworker, but otherwise received no support or preparation for independent living. Id. at 185. Virgil, 25 years old at trial, entered foster care at age 12 and aged out at 19. Id. at 198. She was placed in several foster family homes, foster group homes, and emergency shelters. Id. at 198, 201, 207. She too received no preparation or support when she aged out of care. Id. at 208-09. Sharp, 24 years old at trial, entered care at age 10 and aged out shortly before turning 18. (D.E. 325 at 16364). He had around 25 placements, including foster group homes, GROs, and RTCs. Id. at 16465. Sharp is currently studying social work at the University of Houston Downtown and working with advocacy groups that serve former foster youths who have aged out. Id. at 170, 176. He similarly received no preparation or support before he aged out of the State’s care. Id. at 178-80.
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Former DFPS Caseworkers. Beth Miller (“B. Miller”) worked for four and a half years as a CPS conservatorship caseworker, first in San Antonio and then in Abilene. (D.E. 323 at 32). Katrina Voelkel worked for two years as a CPS conservatorship caseworker in the PMC unit in Lubbock. (D.E. 324 at 8-9).
Current DFPS Officers. Colleen McCall (“McCall”) is the Director of Field Operations at DFPS. (D.E. 305 at 5). She has been at CPS for several decades but has been in her current position since 2005. Id. at 9. McCall’s responsibilities include coordinating with and overseeing CPS regional directors and bringing the concerns of CPS field staff to DFPS leadership. Id. at 10. Caseworkers ultimately report to McCall. Id. She is also tasked with ensuring that primary conservatorship caseworkers have manageable caseloads. Id. at 14, 17-18.
McCall reports to the Assistant Commissioner of CPS, Lisa Black. (See Attachment 1; D.E. 300 at 5; D.E. 305 at 8-9). Black is CPS’s top executive and reports directly to Specia. (D.E. 300 at 5). Black has been at CPS for approximately 28 years, but has been in her current position only since February 1, 2014. Id. at 6. Black spent six years as the regional director of Region 3 (during which time she reported to McCall). (D.E. 300 at 6; D.E. 305 at 9). Black oversees CPS’s policies, practices, and overall operation, and has ultimate responsibility for conservatorship caseworkers and supervisors. Id. at 6-7. The Court was troubled by Black’s testimony. At trial, Black admitted she had not read multiple high-level reports about problems at CPS, including the 2010 Texas Adoption Review Committee report that discussed CPS caseworkers’ high caseloads and turnover rates.11 (See, e.g., id. at 33-35, 102; D.E. 323 at 14142). She also could not testify about the rate of abuse and neglect in foster care placements, an
11 That report was issued while Black was a Regional Director and presumably should have been concerned about problems with CPS caseloads and turnover, at least as they affected caseworkers and supervisors in her Region.
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area for which she is responsible. (D.E. 300 at 45-48). Black made no effort to acquire this information before trial despite being questioned about it at her deposition two months prior. Id. at 47-48. Black is also involved in Foster Care Redesign, the State’s effort to improve its placement array. Id. at 80. As of trial, the State had data on only one of the two contracts it had entered under Redesign. Black did not know basic information about this contract. Id. at 84-85.
Paul Morris, who also reports directly to Specia, is the Assistant Commissioner of CCL, the top executive of that division. (D.E. 301 at 4-5). The Director of RCCL, Darla Jean Shaw (“Shaw”), and the Division Administrator of PMU, Leslie Reed, report to Morris.12 (D.E. 301 at 7-8, 13; D.E. 323 at 160-61; PX 811 at 1, 4). Morris has an undergraduate degree in Accounting from the University of Texas at Austin and is a Certified Public Accountant. (D.E. 301 at 6). He first joined DFPS in 2008 in the Internal Audit division. Id. Morris was appointed Assistant Commissioner for CCL in July 2013. Id. at 5. The Court was also troubled by Morris’s testimony. He had no experience in child welfare before joining DFPS in 2008. (Id. at 6; D.E. 323 at 159). He was hired because of his regulation experience with the U.S. Coastguard. Id. Morris generally defers to Shaw because he “didn’t come into Licensing with a great deal of [relevant] background.” (D.E. 323 at 152-53). Like Black, Morris had not reviewed crucial reports, including several produced by PMU. (See, e.g., D.E. 301 at 69-71, 94). Morris was often unaware of important information relevant to his division, repeatedly stating that he relied on Shaw to know that information. See, e.g., id. at 62-63, 89-90, 93.
It is clear to the Court that a main reason DFPS has not improved in the face of decades’ of reports outlining deficiencies and recommending solutions is that there is no institutional memory. Black and Morris never read critical reports about the departments they are charged
12 While Morris oversees all of the units within CCL, RCCL and PMU are the only ones relevant to this case.
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with overseeing. It is no surprise then that Texas commissions full-scale audits of its foster care system every five to ten years, always reaching the same conclusions, but never producing improvement.
Darla Jean Shaw is the Director of RCCL and reports to Morris. (D.E. 329 at 5). She has held that position since 2010, but has been at DFPS since 1995 (in CPS and RCCL) as an investigator, caseworker, inspector, supervisor, and district manager. (DX 258). RCCL licenses, investigates, and monitors Texas’s residential foster care facilities. (D.E. 329 at 5).
Christina Rawls-Martin (“Rawls-Martin”) was chair of the DFPS Council at the time of trial. (D.E. 308 at 5). The DFPS Council’s job is to “assist the Commissioner in developing rules and policies” for DFPS and “to study and make recommendations to the Commissioner concerning the management and operations” of DFPS. Id. at 10, 13. Rawls-Martin has been on the Council since 2009 and was named chair by Governor Perry in 2013. Id. at 7-8. Although Rawls-Martin’s term appears to have expired on February 1, 2015, she is still listed as chair on the Council website.13 Rawls-Martin is also vice-chair and founding member of the Hidalgo and Starr County Children’s Advocacy Center. (D.E. 308 at 11).
Judy Bowman is the Regional Director for CPS Regions 4 and 5, which encompass 38 counties in East Texas. (D.E. 327 at 7, 11). Bowman is the highest-level DFPS employee in Regions 4 and 5 and reports to McCall. Bowman has been at DFPS for more than 39 years, beginning as a caseworker and later being promoted to supervisor, program director, program administrator, and district director before becoming Regional Director in 2005. Id. at 7-10. As Regional Director, she oversees the decision-making programs for investigations, family-based
13 See DFPS Council, https://www.dfps.state.tx.us/About_DFPS/Public_Meetings/Council/ (last visited December 10, 2015).
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safety services, conservatorship, kinship, and family groups in her regions. Id. at 10. Bowman manages approximately 750 employees. Id. at 12-15. There are approximately 160 caseworkers in Region 4 and 95 caseworkers in Region 5, caring for approximately 1950 and 1000 children, respectively. Id. at 14-15, 33-34. Approximately 35% of these children are in PMC. Id. at 33.
Camille Gilliam (“Gilliam”) is the Regional Director for CPS Regions 1 and 9, which encompass 71 counties in West and Northwest Texas. Id. at 56, 59-60. Like Bowman, Gilliam reports to McCall. She has been at DFPS for nearly 34 years, also starting as a caseworker. Gilliam was promoted to supervisor, program director, program administrator, and in 2005 to Regional Director of Region 1. Id. at 56-58. She has been Regional Director of Regions 1 and 9 for the last year, but at different times had also been the acting Regional Director for Region 10 and acting Regional Director for Regions 1, 2, and 9. Id. at 59, 61. There are 114 caseworkers in Region 1 and 75 caseworkers in Region 9 caring for approximately 1600 and 1150 children, respectively. Id. at 63, 67.
George Cannata is the Deputy Assistant Commissioner for CPS. Id. at 93. He reports to Black. He has been at DFPS for 18 years, working primarily in investigations and familybased safety services, starting as an investigative caseworker before being promoted to supervisor, program specialist, program manager, program director, program administrator, and eventually Deputy Assistant Commissioner in August 2014. Id. at 93-97. His current responsibilities include heading CPS “Transformation.” (Id. at 141; D.E. 313 at 6). Transformation is CPS’s response to the 2014 evaluations by The Stephen Group and Sunset Commission. (D.E. 327 at 141-43).
Jenny Hinson (“Hinson”) is the Division Administrator for Permanency at CPS. (D.E. 314 at 4). She supervises a team of seven subject matter experts and with them is responsible for
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developing and administering policies and programs for children in DFPS conservatorship. (See id. at 221; DX 259 at 1). She has been in her current position since 2010, but has been at DFPS since 1998. Hinson has worked as a statewide intake specialist, caseworker, supervisor, program director, program administrator, and program specialist. (D.E. 327 at 222-23; DX 259 at 1-2). While Hinson focuses on CPS policies that relate to permanence, she seems to know little about how her policies actually affect permanency. Id. at 6-9. For example, she oversees extended foster care for children who age out, but does not know how many children benefit from that program, or the effectiveness of that program. Id. at 8-9. Similarly, while she said that independent living classes are offered to all foster children age 16 and up, Hinson does not know how many children attend those classes. She believes that number is fewer than 50 out of the 1300-1400 children who age out annually. (Id. at 21-22; see also DX 24 at 14 (showing that 1410 youths aged out in 2011); DX 119 at 221 (showing that 1328 youths aged out in 2013)).
Gail Gonzalez (“Gonzalez”) is the Director of Placement at CPS and reports to Black. (D.E. 328 at 88, 124; DX 257 at 3). She also oversees the Foster and Adoptive Home Development and Interstate Compact for Placement of Children programs. (D.E. 328 at 88, 100101; DX 257 at 3). She has been in that position since 2009 but has worked at DFPS (mostly in CPS) since 1988 as a specialist, supervisor, placement team lead, and unit manager. (DX 257 at 1-3). In 2009 Gonzalez was appointed to the Texas Adoption Review Committee discussed supra, serving as the Committee’s vice-chair. (PX 1964 at 2, 4; supra pp. 10-11). In her current position, Gonzalez oversees CPS’s placement function, which, at a high level, entails “ensuring that [CPS has] some level of expertise when . . . matching children to the best placement options.” (D.E. 328 at 104). Her responsibilities also include overseeing policy and practice relating to services for children in State-regulated facilities as well as policy and practice relating
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to CPAs (for both the 122 private providers that DFPS contracts with and each CPS region when those regions act as CPAs). Id. at 88-89. The Foster and Adoptive Home Development program is responsible for recruiting, verifying, training, and monitoring foster and adoptive homes and families. Id. at 94-96. Gonzalez additionally works with special projects and initiatives, liaises with central and regional leadership, legislators, and other stakeholders, and coordinates and leads implementation of legislative changes. (DX 257 at 3).
Kaysie Reinhardt (“Reinhardt”) is the Director of Foster Care Redesign, Texas’s attempt to improve its placement array. She reports to Black. (DX 260 at 1; PX 811 at 1). She has held that position since 2013, but has been at DFPS since 2000 as a conservatorship caseworker, centralized placement coordinator, lead investigator, supervisor, program specialist (for multiple different programs), and project manager. (Id. at 1-3; D.E. 328 at 178). Before joining DFPS she was a substance abuse counselor and a residential counselor at an RTC. (DX 260 at 3-4). In her current position she oversees and manages the implementation of Foster Care Redesign. (D.E. 328 at 178). She is also the head of the Public Private Partnership, the body guiding Foster Care Redesign. Id. at 181.
Frianita Wilson (“F. Wilson”) is the Director of Purchased Client Services for CPS and reports to Black. (D.E. 329 at 53, 56-57; DX 256). She has held that position since 2013. She monitors the private contracted services for residential foster care placements (meaning services provide by CPAs, GROs, RTCs, etc.). Id. F. Wilson had previously worked for DFPS in 19962003 in contract management and monitoring before spending 10 years with HHSC in its contract compliance department. (D.E. 329 at 55; DX 256). The DFPS Contract Oversight and Support division sets the policies and procedures that Purchased Client Services follows in maintaining and managing contracts. (D.E. 329 at 57). Additionally, when Purchased Client
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Services staff conduct risk assessments (as part of their monitoring of CPAs, GROs, etc.), they submit the results of those assessments to Contract Oversight and Support. Id. at 59.
Christine Maldonado (“Maldonado”) is the Contract Oversight and Support Director at DFPS. (D.E. 329 at 89). She reports to DFPS’s Chief Operating Officer. Id. at 92. She establishes policies, procedures, and training for contract staff, and conducts quality assurance of contract management. (D.E. 329 at 90). Additionally, when receiving risk assessments from Purchased Client Services Staff, Contract Oversight and Support uses the results to adjust its statewide contract monitoring plan. Id. at 59-61. Maldonado has held this position since 2009 and has been at DFPS for over 18 years (primarily in Contract Oversight and Support), as an investigative caseworker, contract manager, policy and technical assistance specialist, and quality assurance team lead. (DX 261).
John Specia, Jr. is the Commissioner of DFPS. He has held that position since December 2012. (D.E. 331 at 21). Specia’s career in child welfare and public service is extensive and commendable. (DX 276). Specia began to practice in child welfare in 1978. Id. at 23. Specia practiced as a child welfare attorney for seven and a half years in Region 8 (for the Texas Department of Human Resources) before becoming an associate judge for the juvenile court in Bexar County. Id. at 23-24. He later served as a judge for the 225th District Court in San Antonio, with special jurisdiction in the area of child abuse and neglect, for 18 and a half years. Id. at 24. He eventually helped establish the Texas Supreme Court’s Children’s Commissions as well as various Child Protection Courts throughout Texas. (DX 276 at 1). Further, he helped establish the Bexar County Children’s Court, which provides specialized services for children. Id. Specia was previously vice-chair of the Texas Supreme Court’s Permanent Judicial Commission for Children, Youth, and Families and chair of the Supreme
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Court Task Force on Foster Care. Id. Over the years he has received multiple awards, most recently the Texas Appleseed Award in 2014 for his impact on improving the lives of Texas’s most vulnerable children. Id. at 2. As Commissioner, Specia oversees approximately 12,000 employees, including 8000 in CPS. (D.E. 331 at 31).
b. Expert Witnesses Federal Rule of Evidence 702 requires district courts to act as gatekeepers, excluding expert testimony that is not relevant or reliable. Fed. R. Evid. 702; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). A trial court may consider several non-exclusive factors when evaluating the reliability of an expert’s opinion, including: “(1) whether a theory or technique can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards and controls; and (5) general acceptance of the theory in the scientific or expert community.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (citing Daubert, 509 U.S. at 593-95). The list of Daubert factors “neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire, 526 U.S. at 141. District courts have “wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge will not be disturbed on appeal unless manifestly erroneous.” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997)). The safeguards outlined in Daubert are less essential in a bench trial. Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000). Regardless of how a court evaluates an expert’s reliability, the object of the gatekeeping responsibility is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that
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characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152; Valencia, 600 F.3d at 424.
According to these principles, the Court allowed all proffered experts to testify during trial over both parties’ objections. The Court let both parties cross-examine the experts and challenge their opinions during trial rather than conduct separate time-consuming reliability hearings. The Court similarly admitted all proffered experts’ reports without first determining their relevance or reliability, as those reports supported the experts’ testimony. Defendants objected to the admission of the expert reports as hearsay. When reviewing the reports after trial, the Court only considered the facts and data that “experts in the particular field would reasonably rely on . . . in forming an opinion on the subject.” Fed. R. Evid. 703; see also Daubert, 509 U.S. at 595. The Court disregarded all other parts as inadmissible hearsay. (See, e.g., D.E. 325 at 1314). Even though all experts were qualified by education, knowledge, or experience, several experts’ opinions were not credible or unreliable. The Court disregarded the reports and testimony of Drs. Dennis Zeller and Edwin Basham in their entirety and accorded reduced weight to the reports and testimony of others.
Dr. Dennis Zeller (“Zeller”) is Plaintiffs’ expert on child welfare performance measurements. (See D.E. 322 at 129-33, 141). Zeller has a B.A. in Philosophy from the University of Oklahoma, a Ph.D. in Philosophy from the University of Texas at Austin, and a master’s in Social Work from the University of Texas at Austin. Zeller is currently the president of Hornby Zeller Associates, Inc., a management consulting firm specializing in child welfare, juvenile justice, mental health, and public assistance. He and his firm have consulted for 29 states in the area of child welfare. Those consulting projects include analyzing whether child welfare agencies are meeting their expected outcomes and compliance goals, performing quality
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assurance and case reviews, and conducting workload studies to determine the number of caseworkers that a given agency needs. His firm regularly produces reports in connection with these projects, which include findings as well as recommendations for improvement. For example, when he and his firm audited the performance of the Oklahoma Department of Human Services (in 2008-2009), focusing specifically on child welfare, they produced a report with 26 recommendations, 25 of which the legislature passed into law. Prior to starting his consulting firm in 1988, Zeller was a program research specialist, supervisor, and later director of the Policy Analysis Unit at the New York State Division of Family and Children’s Services. In New York, he developed or oversaw the development of regulations for child protective services, proposed legislation for preventive services, and standards for eligibility for preventive services. Before that, between 1977 and 1980, he was a statistician and supervisor of the Survey and Analysis Unit at the Texas Department of Human Services.
Although Zeller, based on his experience and education, was accepted without objection as an expert on child welfare performance measurement, the Court finds Zeller’s conclusions unreliable. First, Zeller did not support several of his opinions. His connections between the policies and practices of DFPS and the outcomes for Texas foster children were arrived at with only a cursory review of the actual outcomes for children in Texas’s PMC. See, e.g., id. at 183. For example, Zeller concluded that Texas’s caseworker workloads affect PMC children’s outcomes. His finding, however, was based entirely on a review of other states’ foster care systems. He never analyzed this data for Texas. Id. at 172. He made the same mistake when asserting a connection between the frequency of parental visits in foster care and PMC children’s outcomes. Id. at 181. Second, Zeller failed to provide context for his conclusions. He testified that 75% of children in PMC who were separated from their siblings had no sibling visitation
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over a given three-month period, but Zeller did not know how many children comprised that 75% figure or how many sibling groups were separated in PMC during that three-month period. Id. at 184-90. Lacking context, the Court cannot determine how often siblings are separated. Zeller repeated these mistakes throughout trial. See id. at 193-96, 199-203, 206-11. The Court therefore cannot verify the reliability of his testimony and report. The Court disregards Zeller’s report and testimony in their entirety and any part of testimony by other experts that relied on Zeller’s data or report.
Dr. William Lee Carter (“Carter”) is Plaintiffs’ child psychology expert. He has been a licensed psychologist for over 31 years. (D.E. 326 at 69-70). Carter received his B.A. in Psychology as well as his M.S. and Ed.D. in Counseling Psychology from Baylor University. (PX 2015 at 38 (filed under seal)). Over his career, he has worked directly for school districts, hospitals, and clinics, working almost exclusively with children. See id. at 39-40. Carter also spent five years as the Director of Psychology at an RTC. Id. at 40. He has published eight books relating to the field of child psychology and welfare. Id. Carter has performed around 7500 psychological evaluations of children and youths, two thousand of which were of children involved with CPS, and provided counseling services for another one thousand children in Texas psychiatric hospitals and RTCs. Carter currently consults for CPS, several CPAs, a juvenile detention center, a special education co-op, an advocacy center medical advisory board, and an RTC. Id. at 38-39. Carter has conducted many expert psychological examinations for DFPS and for both plaintiffs and defendants in criminal and civil matters. Id. at 2. In the last five years, he has consulted or testified as an expert in over 200 cases, most often on behalf of the State of Texas in child sexual abuse prosecutions. (See id. at 158-70; D.E. 326 at 71).
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Carter conducted comprehensive psychological evaluations of some of the Named Plaintiffs in 2012 and conducted follow-up evaluations in 2014. (PX 2015 at 3 (filed under seal)). His evaluations included a clinical interview with each child, an observation of childcaregiver interactions, a personal history questionnaire, an intelligence test, a behavioral assessment, and a risk evaluation. Id. He also reviewed the children’s DFPS case files and, when possible, interviewed their treatment providers and caregivers. Id. Carter paid particular “attention to the progression of each Named Plaintiff’s psychological well-being over the course of time spent” in foster care. Id. Carter found that the experiences of the Named Plaintiffs while in DFPS custody, including the psychological harm that they suffered, were typical for the Texas foster children he evaluated and counseled over the years. (D.E. 326 at 132-33, 194). The Court finds Carter’s reports and testimony relevant, reliable, and admissible.
Daryl Chansuthus (“Chansuthus”) is Plaintiffs’ expert on continuous quality improvement and appropriate staffing levels for oversight functions in child welfare systems. (D.E. 324 at 88). She has, among other degrees, a master’s in Social Work from the University of Tennessee at Knoxville. (D.E. 324 at 74). She began her career in social work before joining the Tennessee Department of Children’s Services (“DCS”) (Tennessee’s CPS equivalent) in 2002 as a compliance monitor. In 2004, Chansuthus was promoted to director of the Quality Assurance and Continuous Quality Improvement division. Id. at 80. In 2006, she was promoted to the newly created executive director position and was given responsibilities over the accreditation, evaluation and monitoring, policy and planning, program accountability review, and licensing divisions. Id. at 81. Part of her oversight of the accreditation division included helping Tennessee become accredited by the COA. Id. at 82. In both positions she reported directly to the Commissioner of DCS. Id. She also helped ensure Tennessee’s compliance with
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the settlement agreement arising from Brian A. by Brooks v. Sundquist, 149 F. Supp. 2d 941 (M.D. Tenn. 2000). (PX 2022 at 3). Further, when Chansuthus was executive director, she helped design and implement a continuous quality improvement structure for DCS, which determines how well the agency performs its required tasks, and whether those tasks lead to desired outcomes. (D.E. 324 at 79-80).
In 2007, Chansuthus left Tennessee’s CPS equivalent and became the executive director of the Tennessee Center for Child Welfare, a consortium of university social work departments that aided Tennessee’s CPS. Id. at 77, 83. In that role, she worked primarily with DCS staff to identify practice strengths and weaknesses and to provide training and support to address the areas of identified weakness. (D.E. 324 at 77, 83). In 2013, she became the executive director of the Wo/Men’s Resource and Rape Assistance Program, where she continues to work with children and families who have experienced domestic or sexual violence. Id. at 78. She has also worked, since 2007, at the University of Tennessee, first as a clinical assistant professor and then as an adjunct professor, in the areas of social work and child welfare. (PX 2022 at 2-3). The Court finds Chansuthus’s report and testimony relevant, reliable, and admissible.
Dr. Viola Miller (“Dr. Miller”) is Plaintiffs’ child welfare systems expert. (D.E. 302 at 6-7). Plaintiffs asked Dr. Miller primarily to review how caseworker caseloads and placement arrays affect PMC children. Id. at 15. Her extensive experience and background in child welfare was unrivaled by any other witness, expert or otherwise, testifying at trial. Dr. Miller’s career in child welfare spans more than 40 years. (Id. at 7, 12; PX 2037 at 64-66). From 1995 to 2003 she served as Secretary of Kentucky’s equivalent to Health and Human Services (Specia’s position), overseeing approximately 10,000 employees and a budget of $950 million. (D.E. 302 at 9-10; PX 2037 at 64). Dr. Miller was then Commissioner of Tennessee’s DCS from 2003 to 2011,
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overseeing approximately 5000 employees and a budget of $640 million. (PX 2037 at 64). She significantly improved the child welfare systems in both states. (D.E. 302 at 6-7). Since retiring in 2011, Dr. Miller has consulted for child welfare agencies in Massachusetts, Illinois, and Oklahoma, and volunteers on the boards of child welfare organizations. Id. at 12-14. She has authored 24 publications about social work, child welfare, and child development. (PX 2037 at 66-68). She has also over the years presented at countless workshops and conference in those fields. See id. at 69-73. At least one other court recently relied on Dr. Miller’s expert testimony on child welfare systems and caseworkers caseloads in a class action similar to the present case. D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635 (N.D. Okla. 2011) (denying defendants’ motion to decertify the class after full discover). The Court finds the majority of Dr. Miller’s report and testimony relevant, reliable, and admissible. The Court disregarded any references in Dr. Miller’s report to Zeller’s data or report and any opinions or conclusions offered by Dr. Miller that were based on Zeller’s analysis.
Dr. Caroline Long Burry (“Burry”) is Plaintiffs’ social work expert. (D.E. 325 at 12). She has a B.A. in Sociology from Furman University, a master’s in Social Work from the University of Georgia (with a specialization in families and children), and a Ph.D. in Social Work from the University of South Carolina (her dissertation was based on creating and evaluating a training program for foster parents). (PX 2003 at 113 (filed under seal)). Burry is currently an associate professor of Social Work at the University of Maryland in Baltimore and chair of the Families and Children specialization within that department. (D.E. 325 at 15). She is licensed at the highest level for a social worker in both South Carolina and Maryland. Id. at 18. She has been a social worker in Georgia and South Carolina and a therapeutic foster parent in South Carolina. (PX 2003 at 118-19). Between 1992 and 2000 she founded and then co-
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directed the Adoption Center of South Carolina, which provided adoption-related services to children and families. Id. at 118. She has extensive experience teaching, mentoring, researching, and consulting in social work and child welfare. (Id. at 18-19; PX 2003 at 113-21 (filed under seal)). She has also given countless presentations and authored or co-authored many articles, book chapters, and training manuals in the fields of social work and child welfare. (See PX 2003 at 121-34 (filed under seal)). For this case, she reviewed the case files of three Named Plaintiffs (S.A., H.V., and A.M.), evaluating each child’s casework. (D.E. 325 at 19-21). The Court finds Burry’s report and testimony relevant, reliable, and admissible.
Mary Dee Richter (“Richter”) is Plaintiffs’ foster group home expert. (D.E. 326 at 5; PX 2014 (filed under seal)). Richter has a B.S. in Education from Northwest Missouri State University and an M.S. in Education from the College of Saint Rose. (PX 2014 at 45 (filed under seal)). She is currently an independent consultant for juvenile justice and child welfare programs. Id. She began her career as a speech pathologist, working with children in various settings. Id. Richter then spent 15 years working with Father Flanagan’s Boys’ Town, an agency operating group homes for foster children in Nebraska, as both an on-site staff member and a manager. (D.E. 326 at 7-9). She started as a group home parent/family teacher, caring (along with her husband) for nine teenage boys in a group home, and later became the assistant community director for Boys’ Town, supervising nine additional group homes. Id. at 8. She then became the site director for a pilot Boys’ Town branch in Florida, operating first in Tallahassee and later also in Orlando. Id. at 8-9. Richter then worked for five years at the Florida Department of Children and Families (“DCF”) (Florida’s DFPS) as the chief of Permanency Planning. Id. at 9-10. She left the Florida DCF for ten years to be the executive director of the Florida Network of Youth and Family Services, which was a consortium of
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private CPAs that served approximately 20,000 children each year, before returning to DCF as assistant director for Family Safety. Id. at 11. For the present case, Richter evaluated Texas’s use of foster group homes by considering CWLA and COA standards, Texas state law and DFPS policy, data from DFPS on foster group homes between 2012-14, and seventy investigation files for incidents at Texas foster group homes in 2012. (PX 2014 at 7 (filed under seal)). The Court finds Richter’s report and testimony relevant, reliable, and admissible.
Laurie Bensky (“Bensky”) is Plaintiffs’ expert statistician. Bensky has a B.A. in Psychology and a master’s in Social Work. (D.E. 325 at 187). She is currently a senior policy analyst at Children’s Rights. Id. She previously worked as a foster care caseworker and supervisor. Id. Before joining Children’s Rights she worked at the New York City Administration for Children’s Services (essentially New York City’s CPS), in the Quality Assurance department. Id. at 188. Her testimony laid the foundation for three Plaintiffs’ exhibits, which reflected PMC caseworker caseloads, and the number of children 12 and younger in DFPS custody for more than 18 months (i.e. PMC) that reside in group homes and institutions. Id. The Court finds Bensky’s report and testimony relevant, reliable, and admissible.
Dr. Alan Salzberg (“Salzberg”) is Defendants’ expert who was called to review and rebut Zeller’s report and testimony. (DX 252). Salzberg is currently the director at Summit Consulting, an economics and statistical consulting firm. Id. at 57. While Salzberg has extensive background in statistical consulting, unlike Zeller, he does not have any background or experience in child welfare. (See DX 240; D.E. 328 at 61). Salzberg did not perform any statistical analyses of his own and did not offer any independent opinions or conclusions. (See D.E. 328 at 70-71, 80). Because the Court disregarded Zeller’s findings, Salzberg’s testimony was not relevant. (D.E. 328 at 60-64).
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Dr. Edwin Basham (“Basham”) is Defendants’ expert psychologist. Basham has a B.S. in Psychology as well as an M.S. in Marriage and Family Counseling from Kansas State University, and an Ed.D. in Counseling Psychology from the University of Northern Colorado. (DX 242 at 2). For the past 25 years he has worked as a contract psychologist for DFPS. Id. at 1. He has also worked as a contract psychologist for a children’s temporary shelter, two juvenile probation departments, and a psychiatric hospital. Id. Before that he was a staff psychologist at an RTC, two psychiatric hospitals, and an outpatient clinic. Id. He has performed over 4,000 psychological evaluations of adults and children over his career. Id. at 3. He has also appeared in court as an expert witness in over 200 cases, the vast majority on behalf of DFPS. Id. at 3-4.
Basham was offered to rebut Carter’s and Burry’s conclusions that the Named Plaintiffs suffered harm in the State’s care. (D.E. 330 at 52). Basham performed forensic evaluations of the Named Plaintiffs in order to compare his evaluations to Carter’s. Id. at 67. The Court disregards Basham’s testimony because of his misconduct and self-contradiction.
In attempting to refute Carter’s conclusion that A.M. suffered harm in the State’s care, Basham shared Carter’s findings with A.M. and asked her whether she agreed. (DX 266 at 7-8 (filed under seal)). Basham’s conduct is shocking. Many of Carter’s conclusions were critical of A.M.’s ability to function in society. For example, Carter found that A.M. “does not possess [the] basic tools . . . to maintain friendships” and that “she is drastically unprepared for future marriage or family life.” See id. Basham parroted those findings to A.M. nonetheless. Moreover, A.M. likely believed that her meetings with Carter were confidential. For a fragile youth such as A.M., who already struggles to trust other people, Basham’s conduct is devastating. (D.E. 326 at 137-38). The kind of damage that Basham may have caused to A.M. is
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precisely what the Court sought to avoid when allowing these psychological evaluations, and the type of inappropriate conduct that the Court previously warned all parties against.
Basham also contradicted himself during a phone conference with the Court on November 4, 2014, describing his interview with A.M. differently than he did in his report. (D.E. 330 at 81-82, 108-111). In Basham’s declaration, he purported to reconstruct from his notes his conversation with A.M., directly contradicting the plain language of his written report. (See D.E. 274-2). Basham attempted to explain that he actually read to A.M. statements that Carter attributed to her, which Carter had allegedly noted in his report. However, several of the statements that Basham read to A.M. were not attributed to her by Carter, as direct quotes or otherwise, and were instead taken directly from Carter’s actual clinical impressions and diagnostic conclusions. (See PX 2015 at 152-56 (filed under seal)). Basham also impeached himself at trial, describing his interview with A.M. differently than he had in either his report or during the telephone conference. (See D.E. 330 at 81-82, 108-111). He further admitted that, even though his report said A.M. disagreed with one of Carter’s statements, A.M was actually “ambivalent” about the statement. Id. at 81. Basham showed an overall indifference to A.M.’s well-being, professional standards, and the truth.
Even without these transgressions, Basham’s findings are unreliable. At his deposition in 2012, Basham denied seeing evidence in the Named Plaintiffs’ case files of psychological or emotional harm, even though the files for A.M., D.I., and S.A. each contained reports of sexual abuse. Id. at 86-87, 90-93. When pressed on this finding at trial, Basham first claimed that he misunderstood the question during his deposition. He then said that he never reviewed his deposition to submit corrections. Later, however, after being corrected by Defendants’ counsel, Basham admitted that he did review the deposition and submitted corrections, but just not to that
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statement. Id. at 86-90. Basham also said that D.I. showed “substantial improvement” since entering foster care. (DX 262 at 21 (filed under seal)). In reality, D.I. suffered three episodes of rape at the age of eight that were “initiated by adolescent boys in the home over a period of two weeks.” Id. at 56. D.I. is now “very disturbed,” “heavily sexualized,” and “a high risk for sexually harming children.” (D.E. 326 at 190-91). The Court completely disregards Basham’s reports and testimony for this case, and is all too aware that Basham has long provided testimony on behalf of the State of Texas.
Linda McNall (“McNall”) is Defendants’ expert on social work. McNall has a B.A. from Adams State College and a master’s in Social Work from the University of Michigan. (DX 244 at 1). For most of her long career in child welfare she has worked primarily for the New Mexico Children, Youth & Families Department (“CYFD”) (essentially New Mexico’s DFPS). (See id. at 1-3; D.E. 329 at 123-26). Unlike Richter, McNall has no experience working directly in, or managing, group homes. (See DX 244). Before joining CYFD she worked with both children and adults as a social worker and adoption consultant. (DX 244 at 2-3). She joined CYFD in 1989 as an adoption supervisor and was later promoted to county office manager, policy and procedures bureau chief, adoption program manager, and finally regional manager. Id. at 1-2. McNall retired from CYFD in 2011 and is currently an independent consultant. (D.E. 329 at 127). McNall was offered to rebut Richter’s report and testimony. (D.E. 329 at 124). She wrote two reports: the first analyzed 49 investigations conducted in foster group homes; the second analyzed 57 others. Id. at 129. She did not perform any independent study of Texas’s foster group homes. (D.E. 319 at 4). The Court finds McNall’s reports and testimony unreliable.
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First, McNall impeached herself. She admitted at trial that unrelated children living in a home are exposed to different risks than related children living in a home; she said the opposite in her report. Id. at 24-25. Second, McNall’s reports say that in the 106 investigations she reviewed, she saw no “indication that any of the incidents resulted in traumatic or long lasting harm to any of the children involved, either as victims or alleged perpetrators.” (DX 253 at 11 (filed under seal)). In one investigation reviewed by McNall, DFPS confirmed that in a ten-child foster group home, a 14-year-old male foster child sexually molested a four-year-old female foster child, causing her vagina to bleed. (Id.; D.E. 319 at 21-22). The boy had previously inappropriately touched an 18-year-old female foster child and a 13-year-old male foster child in that same home, both of whom had mental retardation. Id. at 22-23. DFPS confirmed negligent supervision because the foster parents were on vacation when the boy molested the four-yearold. Id. It is unclear why McNall opined that there was no traumatic or long-lasting harm in any of the reviewed cases, in part because she has no expertise in that area and was not retained to offer opinions on that topic. See id. at 18. Even more troubling, McNall admitted at trial that the above incident could have caused long-term harm, and that she made her statement “probably . . . without thinking it through completely.” Id. at 23-24. McNall also admitted at trial, despite stating to the contrary in her report, that multiple unrelated children living in one home are exposed to different risks than a similar number of related children living in a single home. See id. at 24-25. The Court disregards her reports and testimony.
Patricia Wilson (“P. Wilson”) is Defendants’ expert on child welfare systems, and was retained to rebut the reports and testimony of Zeller, Dr. Miller, and Richter. (DX 250 at 4; D.E. 329 at 138). She has a B.A. in Education and a master’s in Social Work, both from the University of Kentucky. (DX 238 at 3). She is currently a human services consultant, with an
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emphasis on child welfare. Id. at 1. P. Wilson’s career in child welfare began in 1973 in Kentucky, first as a front line caseworker, and later as a county office supervisor, working primarily with foster children and parents. (D.E. 329 at 136-37). In 1992, she became a policy and budget analyst and then a budget director in Kentucky’s Cabinet for Families and Children (Kentucky’s HHSC). Id. at 135, 137. During this time, Dr. Miller was Secretary of Kentucky’s Cabinet for Families and Children, and P. Wilson was on Dr. Miller’s staff. See id. at 135. Wilson also worked for two and a half years as a consultant and later as a regional director for the CWLA. Id. at 137. She then worked for a year at a child caring/placing organization in Tennessee before returning to Kentucky in 2007 to work as an executive advisor in its Department of Community Based Services (essentially Kentucky’s DFPS). (Id. at 135, 137-38; DX 250 at 4). Between 2008 and 2011, she served as the commissioner of that agency. (D.E. 329 at 138). In that role, she was the number two person in Kentucky’s Health and Social Services System. (D.E. 320 at 8). P. Wilson stated at trial that, despite disagreeing with Dr. Miller’s expert opinion, she respected Dr. Miller’s professional judgment. (D.E. 329 at 141-42).
Parts of P. Wilson’s report provided little value to the Court. For instance, she extensively analyzed DFPS based on the Child and Family Service Review seven indicators. (DX 250 at 9-30). As discussed supra, Texas’s Review performance provides little relevant evidence to this case. Supra pp. 27-28.
P. Wilson’s credibility was also undermined by the revelation that under her leadership, the Kentucky child welfare agency withheld records relating to Amy Dye, a nine-year-old girl who died in an adoptive home. (See D.E. 320 at 11, 14, 17-19). The agency had apparently approved the adoptive placement despite earlier reports of child abuse in the home. See id. at 14. The agency also failed to properly investigate, and did not substantiate, multiple reports from
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Amy’s school that she was being abused. Id. Following her death, the agency performed an investigation (possibly based on an earlier report of abuse and neglect) and six months later found only that Amy’s adoptive parents were guilty of being “inattentive caregiver[s]” and using “unusual discipline.” Id. at 55-56. The agency took no further action in relation to children still in that home. Id. at 56. Although the circumstances of Amy’s death are troubling, it is not clear how much blame P. Wilson is to blame, even though she was Commissioner of Kentucky’s foster care system at that time. The Court does fault P. Wilson for her agency’s refusal to release to the public the records relating to Amy’s death, a decision which was at least in part P. Wilson’s. (D.E. 320 at 17). At trial, P. Wilson defended withholding the records even though it violated Kentucky law. (D.E. 320 at 17); see also Courier-Journal, Inc. v. Cabinet for Health & Family Servs., 2011 WL 2173921, at *1 (E.D. Ky. June 1, 2011). Kentucky newspapers had to take the child welfare agency to court to force the release of Amy’s records. (D.E. 320 at 17). The Kentucky court ordered the agency to release the records over P. Wilson’s objections, fined the agency, ordered it to pay the newspaper’s attorneys’ fees, and admonished the agency for turning a “blind eye” to the child abuse that was reported prior to Amy’s death. Id. at 17-18. The agency continued to withhold the records until the Governor of Kentucky ordered their release. Id. at 18. P. Wilson then testified about transparency in child welfare investigations before a joint committee of the Kentucky Legislature, where she said that, in Amy’s case, Kentucky’s child welfare system had “not failed to operate according to the laws and rules of the State.” Id. at 18-23. Wilson further undermined her credibility when she said at the present trial that foster care systems should not track child-on-child abuse, which is a critical aspect of foster child welfare. Id. at 22-24; see also infra Section IV.B.1. For these reasons, the Court accords lesser weight to P. Wilson’s report and testimony.
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Dr. Jane Burstain is Defendants’ expert on child welfare policy who primarily rebutted the expert opinions of Zeller and Dr. Miller. (DX 251 at 2). Burstain joined DFPS after this case was filed, and is currently the Director of Systems Improvement for CPS. Id. at 2-3. Burstain has a B.S. in Finance from the University of Virginia, a J.D. from the UC Hastings College of Law, and a Ph.D. in Policy Analysis from the Pardee RAND Graduate School. (DX 267 at 1). She began her career in child welfare in 1999 as an attorney at the Children’s Law Center in Los Angeles, California, where she represented children in child welfare proceedings and advocated on their behalves for various social, mental, and educational services. Id. She left that position in 2004 to pursue her doctorate. Id. After her doctorate, in 2008, she moved to Texas and joined the Center for Public Policy Priorities as a policy analyst, where she, inter alia, researched and wrote briefing papers and reports relating to policy and budget issues at DFPS. Id. In 2012, she assumed her current position with DFPS. Id. She has authored or co-authored at least 16 articles, reports, and working papers in the field of child welfare. Id. at 5. In her current position, Burstain considers herself and her ten staff akin to “internal consultants.’” (D.E. 330 at 144). They analyze how CPS is operating, identify areas for improvement, create improvement plans, and track how well those plans are followed and whether improvement occurs. Id. While she and her staff are not subject matter experts, they take information from DFPS’s subject matter experts and work to turn that information into accessible department policy. See id. at 145. She reports to Cannata and previously reported to Black. Id.
Before Burstain joined CPS, she published several reports that were highly critical of DFPS. At trial, she backtracked and glossed over many of her published comments. (See, e.g., D.E. 310 at 48-59; PX 1871-77). In her current position, Burstain has improperly manipulated DFPS statistics and data. For example, to suppress primary caseworker caseload numbers,
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Burstain included not only full-time primary caseworkers in her calculation, but also part-time primary caseworkers, secondary workers (who do not have the responsibilities of primary caseworkers), and fictional workers “created out of all the overtime,” which “are not actually even people.” (D.E. 310 at 65-69). On another occasion, Burstain e-mailed DFPS employees to suggest that four foster child deaths be re-characterized to negate the possibility of caregiver negligence. (PX 1711). In that e-mail, Burstain highlighted three cases in which she thought “reasonable minds might disagree about whether the caregivers could have prevented the deaths.” Id. at 1. One of these cases involved a child with a diagnosed history of Schizophrenia and Bipolar Disorder who hung herself in an RTC. Id. at 2. The child had recently been hospitalized for two weeks for suicidal ideations and self-harming behaviors. The child’s level of care required RTC staff to check on her every 15 minutes during the night, but that night the caregiver did not perform the routine checks. Id. Another case involved a three-month-old infant with multiple medical problems, including obstructive sleep apnea and a smaller jaw that affected her breathing. Id. at 3. That child’s foster mother placed her on her side with a foreign object (a “vibrating pillow”) in front of her and did not check on her for 30-75 minutes. Id. The foster parent “had been trained on safe sleep practices including the dangers of . . . placing an infant in a face-down or side sleeping position and the dangers of placing foreign objects under or around an infant when that infant is sleeping.” Id. Besides the dubious implications of Burstain’s request, it is unclear why, in her exclusively policy-related role at CPS, and with no background in licensing or investigations, Burstain sent that e-mail in the first place. (D.E. 310 at 27-28, 39-41). Specia said he had “no idea” why Burstain inserted herself into this area. (D.E. 299 at 24). The Court finds that Burstain was attempting to manipulate the State’s child
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fatality statistics. In light of these incidents, the Court assigns lesser weight to Burstain’s expert report and testimony.
5. Named Plaintiffs The Court does not base any system-wide findings solely on the Named Plaintiffs’ experiences in foster care. Their experiences, however, paint a similar picture: children often enter foster care at the Basic service level, are assigned a carousel of overburdened caseworkers, suffer abuse and neglect that is rarely confirmed or treated, are shuttled between placements— often inappropriate for their needs—throughout the State, are migrated through schools at a rate that makes academic achievement impossible, are medicated with psychotropic drugs, and then age out of foster care at the Intense service level, damaged, institutionalized, and unable to succeed as adults. Numerous witnesses testified that the Named Plaintiffs’ experiences are typical for children in Texas’s PMC. (See, e.g., D.E. 326 at 132-33, 216, 225; D.E. 323 at 18; D.E. 324 at 215-17; D.E. 327 at 189-92). The Named Plaintiffs’ narratives are the lens through which the Court viewed Plaintiffs’ systemic and class-wide evidence. The Court has written out these lengthy narratives in part to establish a record, but also because these children have for too long been forgotten.14 Their stories deserve to be told.
a. M.D. M.D. is a class representative for the General Class and the Licensed Foster Care Subclass. At the time of trial, M.D. was 17 years old. She was still in the State’s PMC, but her whereabouts were unknown. She was presumed to be living “on the street somewhere,” in the Houston area, over 200 miles away from her home community of Corpus Christi, Texas. (D.E.
14 (See PX 1966) (discussing Carole Keeton Strayhorn, Forgotten Children, A Special Report on the Texas Foster Care System (2004)).
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324 at 230). While in DFPS’s custody, M.D. changed placements 19 times. Id. at 1 RFP CPS 175008-28, DFPS 009007116-17. On four separate occasions while in the State’s care, M.D. was arrested and taken to juvenile detention facilities. Id. at DFPS #28544, #28574-75, #30210. She was placed in psychiatric hospitals 11 times and went to emergency rooms twice for suicidal ideations and cutting. Id. at DFPS #28399-428, DFPS 009007117-18, 009011721-819. Many of M.D.’s placements moved her far from her siblings, who were not in foster care, and her home community. She had 16 different primary and secondary caseworkers. M.D. attended nine schools over her seven years in State care. Id. at DFPS #28382, 28394, 28397; DFPS 009007119-20, 009008456-60. During fourth grade alone, she attended five different schools. Id. at DFPS0098458-60.
M.D. and her siblings were raised by their maternal grandparents until they died in 2005. Id. at DFPS #29816. The children then lived with their mother who had a history of drug use with resulting jail and prison sentences. Their mother also had Bipolar Disorder. M.D.’s father lived in Mexico and was never involved in her life. In 2005, M.D.’s mother tested positive for illegal drugs. Id. at DFPS #29815-17. When CPS determined that the mother used marijuana and cocaine in the home, CPS found Reason to Believe (“RTB”) neglectful supervision. The mother was sentenced to seven years imprisonment by the State of Texas for testing positive for drugs in violation of a prior probation. Id. at #29934. In February 2006, a maternal aunt took custody of the children to prevent them from entering foster care. Id. at DFPS #29815-17.
M.D. had significant behavior problems while in her aunt’s care. M.D. was violent toward her aunt, oppositional, and threatened to report fictitious claims of abuse to CPS. Id. at DFPS009014656. In March 2007, at the age of ten M.D. was admitted to a psychiatric hospital to determine if she qualified for long-term psychiatric care and to help her adjust to her
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medication regimen. Id. at DFPS #29751. While there, M.D. claimed that her much older cousin, who did not live in the aunt’s home, had been sexually abusing her for several years. Id. at DFPS# 28220-29. The hospital reported this outcry to CPS. RCCL interviewed M.D. and found RTB that she was sexually abused. Id. at DFPS #28277, #28283, #229847. M.D.’s case files do not indicate that any action was taken as a consequence.
After M.D. was released from the hospital to her aunt, she started acting out at school, became defiant at home, and ran away. Id. at DFPS #282230-35. She was found by police and while being transported back to her aunt’s, M.D. assaulted the officer, was arrested, and taken to a juvenile detention center. M.D.’s maternal aunt refused to take M.D. back in March 2007, and formally relinquished custody of M.D. to CPS in August 2007. Id. at DFPS #28231, #29829-38.
Over the next five months, M.D. was placed in an emergency shelter, a psychiatric hospital, and two different foster homes. She was removed from each foster home into hospitals for self-harming behaviors. Id. at DFPS009011721-36. In November 2007, after her third hospitalization, M.D. was placed in an RTC where she remained for over two years. Id. at DFPS009011733. M.D.’s behavior problems persisted at the RTC. In March 2009, she assaulted a police officer and a teacher and was taken to a juvenile detention center for a night. Id. at DFPS009012378. In August 2009, she was placed in psychiatric care. Id. at DFPS009011739.
In April 2010, M.D. was again hospitalized, this time for “intensifying behavioral issues,” which coincided with a medication change and the incarceration of her brother. Id. at 1 RFP CPS 143178. In May 2010, the RTC gave CPS a 30-day discharge notice because it considered itself unequipped to handle her. Id. at DFPS009015051. M.D. was placed in another
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hospital, and then moved to a different RTC’s Intensive Psychiatric Transition Program.15 Id. at DFPS009011755-59. While M.D. was in the Program, in July 2010, CPS terminated her mother’s parental rights. Id. at DFPS009007915. Soon after M.D. learned of the termination, she became depressed and distanced herself from her peers, in contrast with her previously social, outgoing demeanor. Id. at DFPS009019597, 009019892, 0090132396.
In August 2010, CPS moved M.D. to another RTC. Id. at DFPS009011763. A month later, M.D. had two major incidents. She first attempted to pull pieces of the baseboard off the wall and hurt herself. Id. at DFPS009015702. Second, she attacked an elderly teacher and instigated what the RTC staff called a “riot.” Id. at DFPS009015730. In October, M.D.’s level of care was upgraded from Specialized to Intense. On October 31, 2010, she ran away from the RTC. When she returned the next day, she reported being sexually assaulted and using alcohol and marijuana while away from the RTC. (Id. at 1 RFP CPS 089285, DFPS #901163, #9011998, #9012334; see also PX 2015 at 31-32 (filed under seal)). She was taken to Denton Regional Hospital for a rape kit. (DX 120 at DFPS009015798-99 (filed under seal)). M.D.’s case files do not indicate the results.
Once back at the RTC, M.D. alleged that a staff member physically abused her during a restraint. Id. at 1 RFP 1 RCCL 00611. A nurse at the RTC confirmed that M.D. had a bruise on her back following the incident. Id. M.D. also alleged that the same staff member sexually abused her and her roommate. Id. at 1 RFP 1 RCCL 00594-618. M.D. did not make the sexual abuse outcry until a year later, by which time the RTC had closed after being put on “Corrective Action/Evaluation” for improper “Medication Storage, Destruction, and Medication Records,
15 An Intensive Psychiatric Transition Program is a 60-day program in an RTC designed to help children transition into a less restrictive environment.
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Serious Incident Documentation . . . , as well as de-escalation, and Post Discussions with children in care.” Id. at 1 RFP 1 RCCL 00597. The specific staff member had been fired for an unrelated event. RCCL Ruled Out (“R/O”) M.D.’s sexual abuse allegation “based on a preponderance of the information gathered” because “no outcries were made by the alleged victims” for a year. Id. at 1 RFP 1 RCCL 00604-05.
After another Intensive Psychiatric Transition Program, M.D. was moved to the Hector Garza RTC. Id. at DFPS009011834-36. In April 2011, she and her roommate accused another roommate of sexually abusing them at night between staff room checks. The allegations were Ruled Out because “staff conducted room checks every 15 minutes,” and “none of the children had any history of sexually acting out or were under any special supervisory precautions.” Id. at DFPS009013763-64. M.D.’s behavior deteriorated over the next two months. Id. at DFPS009012238. She had to be physically restrained multiple times, sustaining injuries during two of those restraints. M.D. told her caseworker that the RTC staff purposely provoked her, hoped to see her fail, and were excessively rough during the restraints. Id. at DFPS009012239.
During M.D.’s stay at Hector Garza, she and multiple other residents reported that one staff member often sexually harassed them. Id. at DFPS009014015-22. On one occasion in June 2011, M.D. saw the staff member place his hand underneath her roommate’s bed covers while the roommate was in bed. Id. at DFPS009014015. Three days after an investigation was initiated, the staff member stopped coming to work. Id. at DFPS009014016. After he was fired for not appearing at work, the sexual harassment investigation was terminated without any findings. Id. at DFPS009014016-22. M.D. also accused a different staff member of physical abuse, but RCCL Ruled Out any physical abuse based on lack of “preponderance of the evidence.” Id. at DFPS009014023. The RCCL investigator based his finding in part on M.D.’s
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lack of bruising at the time of her interview and the Hector Garza staff saying that M.D. “would do anything to get moved out of the facility.” Id.
In August 2011, M.D. was arrested for assaulting a teacher. Id. at DFPS009012249. M.D. told the police that she preferred “to remain [in jail] indefinitely” rather than return to Hector Garza. Id. at DFPS009012252. She told the police that the Hector Garza staff used improper restraints, including placing their hands on residents’ faces and throwing them to the ground. Id. at DFPS009093781. M.D. claimed her arms were bruised repeatedly from the restraints. She also said the staff ignored residents fighting amongst themselves. M.D. said she felt unsafe at Hector Garza. Id. As a result, Stukenberg, her next friend and attorney ad litem, scheduled an emergency hearing to change her placement. Id. at DFPS009014022. At the September 8 emergency hearing, the judge agreed that M.D. should not return to Hector Garza. Id. When M.D. was released from juvenile detention on September 12, she was sent to an RTC where she had previously lived for two months in 2010, and placed in its Intensive Psychiatric Transition Program. Id. at DFPS009011783.
On September 20, after only one week at that RTC, M.D. accused a staff member of sexually assaulting and raping her. Id. at DFPS009014041-42. A psychiatrist who interviewed M.D. the following week believed that she was telling the truth. Id. at DFPS009014132. M.D. also experienced extended vaginal bleeding for two weeks following the alleged incident, “even though her period had ended approximately three days prior.” Id. at DFPS009014133, 1 RFP 1 RCCL 00201. The day of the alleged incident, the staff member in question left work early, purportedly due to issues with his blood sugar. Id. at DFPS009014141. M.D.’s caseworker was aware that “sexual abuse [was] not new at the facility.” Id. at DFPS009014177. The police stressed that M.D. should have a Sexual Assault Nurse Examiner test “immediately” to aid a
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possible criminal investigation. Id. at DFPS009014151. Yet by the time a doctor saw M.D. on September 23, it was too late to administer the exam. Id. at DFPS009014149. The doctor performed a vaginal exam instead, and “did not observe any lacerations or tearing that would indicate a violent crime.” Id. The doctor observed vaginal bleeding but “concluded that to be a result of vaginitis.” Id. It appears that a rape kit was done, but the results were never revealed to M.D., her caseworker, or ad litem. Id. at 1 RFP 1 RCCL 00022, 00421-23. On September 26, the RCCL investigator called the RTC to retrieve M.D.’s clothes and linens for testing, but those items had been washed. Id. at DFPS009014147. The RCCL investigator did not find a “preponderance of evidence that abuse occurred,” but made an Unable to Determine (“UTD”) disposition because he could not definitively rule out the allegations. Id. at DFPS009014154. The staff member was offered his job back following the investigation, on the condition that he never work in the female unit, which he declined. Id. at DFPS009014137.
During the investigation, M.D. complained to Stukenberg and her primary caseworker that the RTC staff was “covering for” the staff member she accused of rape, and had begun to “retaliate” against her. Id. at DFPS009014177, 009014185. In particular, one female staff verbally harassed M.D., ordering M.D. to stop “spreading rumors” and “stop telling everyone about what happen[ed].” Id. at DFPS009014323-24. Beyond verbal abuse, that staff member allegedly physically abused M.D. during a restraint. Id. at DFPS009014177, 009014185. According to the intake report, the staff member’s “inappropriate physical treatment” of M.D. and “threats caus[ed] emotional injury that results in observable impairment to [M.D.’s] psychological functioning.” Id. at DFPS009014177. RCCL Ruled Out these allegations because there was not a “preponderance of the evidence that abuse occurred.” Id. at DFPS009014338.
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Besides being mistreated by the RTC staff, M.D. was subjected to inappropriate living conditions. When Stukenberg visited M.D. in October 2011, she observed that M.D. shared a trailer with nine other girls, sharing a single shower and toilet even though regulations prohibit more than eight girls to one shower or toilet. Id. at DFPS009014185. The trailer also smelled of mildew and urine. Id. Stukenberg observed several other violations, such as only one staff was assigned to the trailer, and there was a noticeable lack of training among all RTC staff. Id. Stukenberg also noticed multiple self-inflicted cuts on M.D.’s arms and legs—including a particularly deep one on her wrist—reportedly due to the stress caused by the rape and consequent retaliation. Id. M.D. had not received medical attention for these lacerations. Id. at DFPS009014177. Stukenberg reported to M.D.’s caseworker that M.D. was not adequately supervised and was denied medical care. Stukenberg told the caseworker, “If [the RTC] had been a parent the child would have been removed from the home immediately.” Id. at DFPS009014186.
RCCL investigated these allegations and determined that the RTC was deficient in its showers and toilets. Id. at DFPS009014300-01. RCCL ordered Technical Assistance for the RTC to meet legal requirements, but Ruled Out the allegations of neglectful supervision and medical neglect. Id. at DFPS009014304-05, 009014317. That disposition was based largely on the investigator not noticing a urine smell when visiting the trailer three days after the report. Id. at DFPS009014317. When the investigator interviewed M.D., she recanted her allegations of retaliation, neglect, and physical and verbal abuse against the staff. Id. at DFPS009014323. It is impossible to determine from the record whether M.D. recanted because the allegations were untrue, or because she wished to remain at the RTC, or believed recanting would stop the
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retaliation. During the investigation, M.D. informed Stukenberg that she liked this current RTC much more than Hector Garza and preferred to remain there. Id. at DFPS009014324-25.
Nonetheless, M.D. attempted to run away from that RTC in November 2011. She reported to her ad litem that she and another girl were punished for the runaway attempt by being forced to stand barefoot on milk crates for several hours and was told that her food portion would be reduced. Id. at 1 RFP CPS 000005. After that, M.D. had more self-harm incidents. Her case files, however, are relatively free of disciplinary incidents in 2012. See, e.g., id. at DFPS009012204. By February 2013, she had made sufficient progress at the RTC and was placed in a foster home (although her level of care remained Intense). Id. at DFPS009011791.
M.D. lasted less than a week at the foster home. She assaulted a ten-year old girl in the home for telling the foster parents that M.D. had a consensual sexual relationship with an adult male. Id. at DFPS009014351. M.D. was then placed in a psychiatric hospital for ten days. Id. at DFPS009011795. Upon release, she moved to a different foster home where she tried to run away daily. She also resumed harming herself, id. at DFPS009012094, which resulted in two trips to the emergency room and another psychiatric hospital in March 2013. Id. at DFPS009011803. Nonetheless, M.D.’s behavior had apparently improved enough that DFPS reduced her level of care from Intense to Specialized for the first time in two and a half years. Id. at 1 RFP CPS 142883.
After this hospitalization, the foster home would not accept M.D. back, and her caseworker needed to find her a new placement. She could not return to the RTC where she had been less than two months earlier and had done well because it only took Intense-level children. See id. at DFPS009011787. Instead, she was moved to the San Antonio State Hospital. Id. at DFPS009011803, 009011807. While there, M.D. reportedly engaged in two incidents of
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inappropriate sexual behavior with two female residents. DFPS investigated each allegation for inadequate supervision by the staff. The first allegation was deemed “not credible” and ruled “Unconfirmed,” the equivalent of Ruled Out. Id. at 1 RFP CPS 146463. The investigator confirmed the second allegation, but did not find a “preponderance of evidence” that the caretakers were guilty of inadequate supervision, resulting in an “Inconclusive” disposition, the equivalent of Unable to Determine. Id. at 1 RFP CPS 146304.
M.D. was discharged from the San Antonio State Hospital on April 17, 2013. She was sent back to the Hector Garza RTC despite her negative experiences there and her repeated pleas, as well as a previous court order, to not return. See, e.g., id. at DFPS009012252. At trial, Stukenberg testified that other RTCs did not want to take M.D. because she had previously made outcries while in care, which RTCs view as a liability. (D.E. 324 at 225). During her second stay at Hector Garza, M.D. admitted to abusing alcohol and marijuana. (DX 120 at 1 RFP CPS 177011 (filed under seal)). She was again subjected to inappropriate restraints. On May 18, a staff member allegedly verbally provoked M.D. while taking her back to her room and then pushed her into a wall. Id. at DFPS009012113. When M.D. resisted, the staff member restrained M.D. by placing her face-down on the ground and pressing her elbow on M.D.’s neck, making it difficult to breathe. Id. M.D. was bruised on her neck and had a six-inch scratch from the staff member’s ring, which M.D.’s “I See You” worker16 observed during her visit two days later. Id. Shortly after the incident, an RTC staff member told M.D.’s primary caseworker that “no matter what M.D. did there is a proper way to restrain, just like in jail/prison guards have to
16 I See You workers, as well as Centralized Placement Unit (“CPU”) workers, are secondary workforces that assist primary caseworkers. CPU workers do not interact with foster children; they only help find placements. I See You workers only visit foster children once a month when primary caseworkers are too busy or too far away. They often just show up at the child’s placement, ask “five questions and leave.” See infra pp. 171-76.
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act a certain way.” Id. at DFPS009012112. M.D.’s 33,000 pages of case files do not mention an investigation of this improper restraint, or of the staff member being cited for it. For the second time in two years, M.D. told her caseworker that she did not feel safe at Hector Garza. Id. at DFPS009012131. Her behavior noticeably deteriorated. Id.
On September 13, 2013, a court ordered CPS to return M.D. to her mother, who had been released from prison seven months before. Id. at DFPS009011998. In order to take custody of her daughter, M.D.’s mother needed to find appropriate housing. M.D.’s mother needed copies of M.D.’s birth certificate and social security card to complete a housing application. Id. at DFPS009012001-02. M.D.’s mother repeatedly contacted CPS to obtain those documents, but a new caseworker explained that she needed to speak to her supervisor. The Department eventually refused to give copies to M.D.’s mother, without explanation. Id. at DFPS009012001-10. Internal emails suggest that CPS did not want to return M.D. to her mother because the caseworkers did not believe that the mother could handle M.D. and that the mother was a “stressor” to M.D. Id. at DFPS009011626, 009012005. On September 24, 2013, Stukenberg requested an emergency hearing to get M.D. out of foster care. Id. at DFPS009011998, 009012002. M.D. learned that CPS was not cooperating with her mother, preventing M.D. from leaving Hector Garza. Id. On September 25, when her I See You worker visited, M.D. “appeared tired and was not her usual animated self,” and had reportedly attacked a peer and injured her own arm earlier that day. Id. On September 26, M.D. was taken off all of her psychotropic medications because she refused to take them and instead gave them to the other residents. Id. at DFPS009013482, 009012009.
On October 13, Hector Garza placed M.D. on close supervision because of her refusal to take medication. Id. at 1 RFP CPS 177042. On October 17, M.D. met her new primary
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caseworker for the first time and immediately asked about her old caseworker. Id. at DFPS009012007-10. M.D.’s previous caseworker had been one of the few constants in her life for the previous four and a half years. Although M.D.’s prior caseworker had not left CPS (she was promoted), no one notified M.D. of the turnover. M.D. told her new caseworker that she wished to live “anywhere but in this placement.” Id. On October 21, Hector Garza put in a 14day discharge notice for M.D. On October 25, M.D.’s mother obtained an apartment, although CPS still believed that reunification was “not to [M.D.’s] benefit” based on M.D.’s observed behaviors following visits with her mother. Id. at DFPS009012013. Stukenberg continued to push for reunification, which disconcerted DFPS. See id. at DFPS009011998, 009012002. It is not clear from the record why CPS ignored a court order to reunite M.D. with her mother.
On October 27, M.D., upset because she had been unable to contact her mother that day, destroyed furniture in her room and threatened another resident. Id. at DFPS009012012. Staff also found a razorblade in her eyeglasses case. Id. On October 29, CPS decided to send her to a Houston RTC. Id. at DFPS009011815. She was moved on November 5. Id. at DFPS0091011819. During the move, M.D. showed her caseworker markings on her feet. Id. at DFPS009012013. She told her caseworker that she had not received any medical treatment. Id. She was not given any of her prescribed psychotropic medications at the new RTC because she had refused to take them at Hector Garza. Id. at DFPS009011680.
The Houston RTC was not told about M.D.’s history of running away and self-harming, or that she had been off her medication for 30 days. (D.E. 324 at 227). She ran away from the RTC within a week. Id. at 226-27. Soon after, the Houston Police Department found M.D. in a park and returned her to the RTC. Id. at 227. M.D. said that she had been “selling her body to men for money.” Id. Within two days of returning to the RTC, M.D. told Stukenberg that she
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could not “take it” anymore and that she wanted to go back home to Corpus Christi. Id. at 22728. Stukenberg informed M.D. that she would do what she could and would request another emergency hearing, but upon hanging up the phone M.D. ran away again. Id. at 228. During M.D.’s short stay in Houston, she received medical and sexually transmitted disease (STD) tests. She tested positive for hypokalemia and pelvic inflammatory disease. (DX 120 at DFPS009012017). The latter condition is often caused by—and therefore an indication of—an STD. Id. at 1 RFP CPS 177109. M.D. was also tested for gonorrhea and chlamydia. The hospital never released the results of those exams to her caseworker or ad litem. Id. at DFPS009012017. As of January 2014, the caseworker was still trying to obtain those test results. Id. at DFPS009013507.
M.D. was found just before Thanksgiving in 2013. She was taken to a Houston CPS emergency shelter, where she told the staff that she was “high on crack” and continuously said that she wanted to go back to a man who was “someone that makes money off of her by having her sleep with other boys/men.” (Id. at #1 RFP CPS 175293 (filed under seal); D.E. 324 at 228). CPS staff allowed M.D. to leave within 15 minutes of her arrival at the shelter. (DX 120 at 1 RFP CPS 175293 (filed under seal)). Only after that incident did M.D.’s case files state, “If she is found or returns she will need a secure facility to prevent further run away’s [sic].” Id. at 1 RFP CPS 175295. The Houston Police Department handled M.D.’s case as a sex trafficking case. Id. at 1 RFP CPS 175308. In the summer of 2014, a national missing children organization informed DFPS that M.D. may have been arrested by the police and that they might have her address. (D.E. 324 at 229). M.D.’s caseworker cautioned Stukenberg not to get her “hopes up” because DFPS was not sure it was M.D., but upon seeing a picture, Stukenberg immediately
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recognized M.D. Id. M.D.’s caseworker apparently did not “even know what her client look[ed] like” because neither the caseworker nor anyone else in her unit had ever met M.D. Id.
Despite having a possible address for M.D., the State declined to retrieve her. DFPS refused to pick up M.D. without police assistance. In an appalling Catch-22, the Houston police department would not pick M.D. up until DFPS found a placement for her, and DFPS could not find a placement until M.D. was in State custody. Id. at 230. Stukenberg urged M.D.’s caseworker to go to her. Id. After approximately two weeks, CPS went to find M.D., but the person who answered the door said that M.D. was no longer there. Id. M.D. has not been seen nor heard from since. Id. On January 9, 2015, M.D. turned 18 and aged out of foster care.
When M.D. entered State PMC in January 2008, she was already in an RTC. (DX 120 at DFPS #31586 (filed under seal)). From that date until she ran away in November 2013, M.D. spent almost all of her time in RTCs. See, e.g., id. at DFPS #28393-97, 28403, 28419-34. For the seven years she was in PMC, M.D. spent only 14 days in foster family homes. DFPS009007116-17, 009011791, 009011799. Defendants’ and Plaintiffs’ experts agreed that sexually abused children should live in single-child placements. (See D.E. 328 at 161; D.E. 329 at 161; D.E. 303 at 8). Yet neither of M.D.’s foster homes in 2013 were single-child placements, even though she had been sexually abused.
When the State assumed custody of M.D. in April 2007, her level of care was Basic. Id. at DFPS009007116. Within four months her level of care rose to Specialized. Three months later, her level of care rose to Intense. Id. Except for three months (August-October 2010, March 2013), M.D.’s level of care remained Intense over her eight years in DFPS custody. See id. at DFPS009007116-17, 009020068, 1 RFP CPS 142883.
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Coinciding with M.D.’s rising levels of care, M.D. was steadily diagnosed with psychological disorders and prescribed a litany of medication. In November 2007, after seven months in foster care, M.D. was diagnosed with Bipolar Disorder and Post-Traumatic Stress Disorder (“PTSD”). Id. at DFPS009017082. In April 2008, M.D. was diagnosed with Attention Deficient Hyperactive Disorder (“ADHD”) and Oppositional Defiant Disorder. Id. at DFPS009017394. In 2010, Impulse Control Disorder and Borderline Personality Disorder were added to the list. Id. at DFPS009014552. In 2011, Schizophrenia, Mood Disorder, and Conduct Disorder. Id. at DFPS009014040. In 2013, Major Depressive Disorder, Mathematics Disorder, and Disorder of Written Expression. Id. at 1 RFP CPS 142880.
M.D. was prescribed a pharmacy of psychotropic medications to treat these diagnoses, including Adderall, Intuniv, Clonidine, Concerta, Vyvanse, Tenex, and Focalin17 for ADHD;
17 All of these drugs are used to treat ADHD or ADD. Adderall is also used to treat narcolepsy; Clonidine and Tenex are also used to treat high blood pressure. Possible side effects of Adderall include bladder pain, bloody or cloudy urine, fast irregular heartbeat, stunted growth, trouble breathing, aggression, seizures, numbness, muscle twitches, changes in vision, unexplained muscle pain, stomach pain, weight loss, mood changes, nervousness, fast heart rate, headache, dizziness, insomnia, and dry mouth. http://www.drugs.com/adderall.html (last viewed on July 27, 2015). Side effects of Intuniv include mild dizziness or drowsiness. http://www.drugs.com/intuniv.html (last viewed on July 27, 2015). Side effects of Clonidine include urination problems, confusion, hallucinations, feeling tired and irritable, mood changes and sleep problems. http://www.drugs.com/clonidine.html (last viewed on July 27, 2015). Side effects of Concerta include new or worsening symptoms such as mood swings, aggression, hostility, or changes in personality or behavior, panic, delusion, extreme fear, hallucinations, unusual behavior, motor tics, irritability, and insomnia. http://www.drugs.com/concerta.html (last viewed July 27, 2015). Side effects of Vyvanse include confusion, paranoia, unusual thoughts or behavior and hallucinations. http://www.drugs.com/vyvanse.html (last viewed on July 27, 2015). Side effects of Tenex include chest pains, lightheadedness, dizziness, drowsiness, constipation, weakness, blurred vision, and confusion. http://www.drugs.com/tenex.html (last viewed on July 27,
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Depakote and Divalproex18 for Bipolar Disorder; Fluoxetine (or Prozac), Celexa, and Trazodone19 for Depression; Abilify, Risperdal, and Seroquel20 (all anti-psychotics) for
2015). Side effects of Focalin XR include headache, upset stomach, trouble sleeping, anxiety, and nervousness. The label contains a warning to tell a doctor about any mental problems a child may have, or about a family history of suicide, bipolar illness, depression, new or worse behavior or hostility and or new psychotic symptoms or new manic symptoms. http://www.drugs.com/focalin.html (last viewed July 27, 2015). Most of these medications should not be given to children under the age of six. Adderall, Focalin XR, Concerta, and Vyvanse are all central nervous system stimulants that can be abused or lead to dependence. 18 Depakote and Divalproex are used to treat seizure disorders and bipolar depression. Common side effects include liver and pancreas problems, stomach pain, nausea, vomiting, headaches, drowsiness, dizziness, problems with balance, blurred vision, dark urine, jaundice, mood changes, depression, anxiety, panic attacks, insomnia, irritability, hyperactivity, tiredness, confusion, delusions, nose bleeding, easy bruising, purple or red spots on skin, seizures, inflammation, and bleeding gums. http://www.drugs.com/depakote.html (last viewed on July 27, 2015). Side effects of Divalproex include stomach pain, nausea, vomiting, headaches, dizziness, and blurred vision. http://www.drugs.com/divalproex-sodium.html (last viewed July 27, 2015). 19 Fluoxetine, Celexa, and Trazodone are all antidepressants. Fluoxetine is only supposed to be used after two other medications have failed to treat depression. Common side effects include insomnia, strange dreams, headache, dizziness, vision changes, tremors, anxiety, nervousness, upset stomach, nausea, vomiting, diarrhea, dry mouth, flu symptoms, and restlessness. http://www.drugs.com/fluoxetine.html (last viewed July 27, 2015). Common side effects of Celexa include drowsiness, dizziness, weakness, anxiety, shakiness, insomnia, vision changes, nausea, loss of appetite, diarrhea, constipation, dry mouth, cold symptoms, sweating, and weight changes. http://www.drugs.com/celexa.html (last viewed July 27, 2015). Side effects of Trazodone include drowsiness, dizziness, vision changes, lightheadedness, and dry mouth. http://www.drugs.com/trazodone.html (last viewed July 27, 2015). 20 All three drugs are used to treat schizophrenia in children (generally over the age of 13) and adults. Abilify is also used to treat bipolar disorder and major depressive disorder in adults and to treat irritability, symptoms of aggression, mood swings, and temper tantrums related to autism in children who are at least six years old. Side
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Schizophrenia, Depression, and Bipolar Disorder; and Trileptal21 for mood disorders. She often took five or six medications at a time. (PX 2015 at 34, 49 (filed under seal)). According to Carter, M.D.’s problems are likely not solvable by medication. In his view, the State over-relied on psychotropic drugs and overmedicated M.D. Id. at 49.
M.D.’s numerous placement changes caused absences and disruption in her schooling. M.D.’s academic performance declined, mostly due to her disruptive classroom behaviors, but also because she missed school time with every placement change and psychiatric hospitalization. Carter evaluated M.D. in October 2012, when she was 15 years old. He found that her overall academic abilities were on the third to fifth grade level. M.D. told Carter that the very thought of attending a normal school made her nervous because virtually all of her education to that point had been within RTCs. (PX 2015 at 28 (filed under seal)). M.D. passed the ninth and tenth grade in special education classes. (DX 120 at DFPS009007110, 009007119 (filed under seal)). She was placed in 11th grade in August 2013 at a charter school at her RTC, but refused to attend. She was moved to a public high school when her placement changed in November 2013, but only attended one day before she ran away. Id. at DFPS009007120. The
effects include severe agitation, distress, or restlessness. http://www.drugs.com/abilify.html (last viewed on July 27, 2015). Risperdal is also used to treat symptoms of bipolar disorder in adults and symptoms of irritability in autistic children. Possible side effects include aggressive behavior, agitation, anxiety, restlessness, depressed mood, inability to concentrate, increase in amount of urine, constipation, diarrhea, and trouble sleeping. http://www.drugs.com/risperdal.html (last viewed July 27, 2015). Side effects of Seroquel include dizziness, drowsiness, and loss of energy. http://www.drugs.com/seroquel.html (last viewed July 27, 2015). 21 Trileptal is an anticonvulsant, or antiepileptic drug that works by decreasing nerve impulses that cause seizures. Side effects include dizziness and drowsiness. People with depression and mood disorders are advised to tell their doctors before taking Trileptal. http://www.drugs.com/trileptal.html (last viewed on July 1, 2015).
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school was still looking at her records to determine which grade level she would be placed. M.D. later told her caseworker that one reason she ran away was her discouragement at being placed in the ninth grade again. Id. at DFPS009007110.
A review of M.D.’s stay in PMC exemplifies many of the problems that Named Plaintiffs alleged about Texas foster care. On multiple occasions M.D. alleged physical, sexual, and verbal abuse. Many allegations received cursory reviews, with RCCL terminating investigations without gathering important facts. Other allegations were not investigated at all. M.D.’s living conditions often violated DFPS regulations. Because of Texas’s inadequate placement array, M.D. returned to the Hector Garza RTC in 2013. An untimely caseworker turnover coincided with her return to Hector Garza. In addition, DFPS failed to reunite M.D. with her family despite a court order to do so, which contributed to her running away. When M.D. was found, miscommunications between her ad litem, her new caseworker, her shelter home, and the Houston Police Department allowed her to run away for good. Unfortunately, as Carter testified and the Court so finds, M.D.’s experience is “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. (See D.E. 326 at 132-33, 194).
b. D.I. D.I. is a class representative for the General Class and the Licensed Foster Care Subclass. At the time of trial, D.I. was 12 years old. (D.E. 215 at 3). He became involved with DFPS in 2007 at age six when DFPS received reports of neglect by his mother, a drug addict. D.I. ran away from home in 2008, prompting DFPS to institute a safety plan, though he remained with his mother. In 2009, DFPS removed him from his home after the safety plan failed to end D.I.’s abuse and neglect. He was first placed with a relative in an arrangement that was intended to be permanent, but he was removed in June 2010 because that relative could not manage his
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behavior. (PX 185 at 4236 (filed under seal)). In April 2009, D.I. received a psychological evaluation. Id. at 2202. The psychologist found that D.I. was having “emotional and behavioral problems, both, at a level of mild clinical significance” and that he displayed “highly significant aggressive behaviors, attention problems, conduct problems and social problems and significant problems related to rule-breaking behavior, ADHD symptoms, oppositional defiant disorder symptoms and mildly significant affective/depressive symptoms and anxiety problems.” Id. at 2208. D.I. denied experiencing suicidal or homicidal ideations, though, and did not appear to experience auditory or visual hallucinations. Id. at 2207.
D.I. entered the State’s PMC on March 8, 2010 at a Basic-level of care. Id. at 1968, 2122. In June 2010, he was placed by the Bair Foundation, a CPA, in a foster group home. Id. at 417. In his first month there, two older boys in the home, aged 16 and 17, sexually abused him on at least three occasions involving oral and anal sex. He was eight years old. Id. at 28-29. Each incident of abuse occurred at night in the boys’ bedroom, while the sole caregiver was asleep on an air mattress in the downstairs living room. Id. at 56. The caregiver in the foster group home was unaware of this sexual abuse until one of the older boys confessed. Id. at 48. The 16-year-old who initiated the abuse had entered foster care due to being sexually abused by his father. Id. at 54. In 2007, he had sexually abused a younger child with special needs in a different foster home. Id. The CPA’s case files contained information about the 16-year-old’s history of being sexually abused but made no mention of him abusing others. Id. at 3, 54.
During the investigation into this incident, the 16-year-old’s primary caseworker told the RCCL investigator that the CPA “should have been” aware of the 2007 incident and that “this incident was similar to the previous incident.” Id. at 54. The caretaker informed the investigator that he knew the 16-year-old had been abused by his father and that he had concerns that D.I. and
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the 16-year-old would “play together so much, since the two children have a significant age difference.” Id. at 50, 54. Further, CPS notes state that the 17-year-old, “is a homosexual and has regular HIV tests” and that therefore “new testing will be done on all three boys.” Id. at 18. There is no mention in D.I.’s case files of HIV testing.
D.I.’s caseworker told the RCCL investigator that while D.I. never made a sexual abuse outcry, he had previously made a joke at school of a sexual nature, which caused her to be concerned that D.I. may have been sexually abused. Id. at 55. According to D.I.’s caseworker, after spilling ketchup at school D.I. said, “this is what happens to my butt.” Id. The caseworker she spoke to D.I. about that statement, and told her he was only joking. Id. at 55. D.I.’s case provides an example of DFPS mixing ages and not providing 24/7 care.
Following the investigation, RCCL confirmed that the sexual encounters occurred, but Ruled Out all allegations of neglectful supervision and sexual abuse. Id. at 58. The investigator noted several factors that led to a Ruled Out disposition as to neglectful supervision, including: “The sexual encounters between the children most likely occurred late at night when the children were believed to be asleep”; the caregiver “was likely asleep at the time of the sexual encounters”; the caregiver “reported that for the month of June he slept on an air mattress in the downstairs living room so that he could provide increased supervision for a child who was a runaway risk”; “None of the children in the home were known by The Bair Foundation to have a history of sexually acting out with one another or of sexually abusing other children”; and the caregiver “did not have any information that would have led him to believe that the children were engaging in sexual activity.” Id. The investigator also Ruled Out the sexual abuse allegations, despite confirming that the incidents indeed occurred, because there was “not a preponderance of the evidence that abuse occurred.” Id. The RCCL supervisor agreed with the
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investigator’s disposition decisions, commenting: “[Neither] Foster parent nor CPA had knowledge that either of the children involved had [history] of [sexual] acting out, even though [illegible] reported that [16-year-old] had an incident of [sexual] acting out in a previous [placement].” Id. at 5. This appears to be a set pattern of DFPS’s investigations of abuse in care. First, DFPS refuses to document or recognize child-on-child abuse. (See PX 1026 at 5; D.E. 300 at 47-48; D.E. 303 at 6-8). Second, even when a child is abused in foster care, the standards for finding that abuse occurred are impossibly difficult. It appears that, unless witnessed by an adult who admits seeing the abuse and thereafter refuses to do anything about it, the preponderance of evidence standards cannot be met. Children are interviewed and discounted. Adults are similarly discounted. The disposition of the sexual abuse of D.I. as Ruled Out is based on DFPS determining that child-on-child abuse findings would result in labeling one child a perpetrator. (PX 185 at 58 (filed under seal)). Certainly each child’s caseworker should have been aware of the sexualization of these three boys and, as both Defendants’ and Plaintiffs’ agree, immediately placed them in single-child placements. (Id; see also D.E. 328 at 161; D.E. 329 at 161; D.E. 303 at 8). Instead, the only action recommended in the investigation report was “[r]outine monitoring.” This Dickensian approach to child abuse keeps the confirmed reports of abuse in care findings artificially low.
The Bair Foundation instituted an identical safety plan for the 16 and 17-year-old, requiring the caregiver to: have each of the youths within hearing and seeing distance at all times during waking hours; check on each of the youths at least 3-4 times each night; and prohibit the youths from sharing a room with other children in the home. Id. at 104. Six months after the incident was reported, the same RCCL investigator completed his investigation of the Bair Foundation, finding no minimum standard deficiencies. Id. at 66-67. Specifically, the Bair
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Foundation was found to be in compliance with the following standards: “Adhere to the child’s rights to be free of abuse, neglect, and exploitation as defined in Texas Family Code 261.401”; “The caregiver is responsible for being aware of and accountable for each child’s on-going activity”; and “The caregiver is responsible for ensuring each child’s safety and well-being including auditory and/or visual awareness of the child.” Id. at 67. Neither the Bair Foundation nor the foster group home was penalized or admonished in connection with this incident.22 DFPS instituted no internal changes after this incident.
After that incident, D.I. was removed to an emergency respite placement and then to another foster home—still not a single child placement. Id. at 109. D.I. received a psychosocial assessment on September 8, 2010, which inexplicably stated that he was removed from his previous placement “due to problems getting along with the older foster kids in the home.” Id. at 2501. The assessment made no mention of D.I.’s sexual abuse history. See id. at 2501-02. Two weeks later, D.I. was hospitalized for a week “due to behaviors and suicidal ideation.” Id. at 2489, 2492. On D.I.’s Common Application for Placement of Children in Residential Care form,23 filled out by his primary caseworker in November 2010, more than four months after he
22 The Bair Foundation had its license placed on probation the following year for unrelated reasons. (PX 978 at 1). 23 Foster children’s Common Applications contain detailed information about the children and are provided by DFPS to a CPA or residential facility to allow the CPA or facility to determine whether they can meet the child’s needs. Before placing a child with Moderate, Specialized, or Intense service needs, a CPS caseworker must provide the child’s full Common Application to the facility. (PX 50 at 80). When placing a child with only Basic needs, or in case of an emergency placement, the caseworker need only provide an abridged version of the Common Application at the time of the placement, but must provide the full form within 30 days of the placement. Id. at 81. Although a facility may complete the Common Application on its own, it is ultimately the CPS caseworker’s responsibility to ensure its completeness and accuracy. See id.
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was abused, marks his sexual abuse history as “unknown.” Id. at 384. On that same form, the caseworker noted, “Recently child was involved with a problem at a previous foster home that included participating in sex with other children in the home.” Id. at 382.
D.I. received another psychological evaluation in December 2010. Id. at 2482-91. That evaluation was significantly worse than his 2009 evaluation. D.I. had an elevated score on the Anxiety Scale (94th percentile) and the Depression Scale (96th percentile). Id. The psychologist noted that the clinically elevated anxiety score “may reflect the presence of an anxiety disorder” and may “reflect posttraumatic fears associated with previous victimization.” Id. During the evaluation, D.I. endorsed that “‘lots of times’ he wants to hurt himself and that . . . ‘lots of times’ he wants to kill himself.” Id. Further, the evaluation states under the heading “Notable Item Responses,” that D.I. responded “true” to many troubling statements, including:
(8) I have thought about killing myself, . . . (12) I hear voices that others don’t hear, . . . (22) I keep thinking about something terrible that happened to me, . . . (37) I feel very, very sad, (38) People say I see things that aren’t there, . . . (41) There are voices in my head that tell me to do silly or bad things, . . . (46) Things in my life go from bad to worse, . . . (52) I have tried to hurt myself, . . . and (54) I am afraid of some of the ideas I have in my head. Id. at 2487. Once again, there is no indication that D.I., who was repeatedly sexually abused while in foster care, and became sexualized as a result, was ever placed in a single-child home. In fact, the department did everything it could to cover up that D.I. was sexually abused, from ruling out sexual abuse allegations, to referring to his rape in his case files as “problems getting along with the older foster kids,” “sexual behavior,” “a sexual act with some boys,” and “participating in sex with other children in the home.” Instead of placing D.I. in a single-child home, CPS placed him next in a home with another child who had a sexual abuse history. Id. at 193. That child accused D.I. of attempting to have sex with her although she later admitted to her therapist that she had
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tried to initiate sexual contact with D.I. but was not able to do so. Id. Neither child was removed from that placement.
On October 24, 2012, D.I. was adopted. Id. at 2883. D.I. spent less time in PMC than any of the other Named Plaintiffs. Over his three years in care, D.I. had two primary caseworkers, although he did have the same caseworker during his entire time in PMC. See id. at 659-74. He also only changed schools once during that time. Id. at 1983-84. In early 2012, D.I. was in the third grade and passing all of his classes, although he had behavior problems and often disrupted class or tried to distract other students. See id. at 2058, 2096, 2100, 2111. Since being adopted, D.I. has engaged the five-year-old grandchild of his adoptive mother in sexually inappropriate conduct on more than one occasion, mostly recently in March and August 2014. (D.E. 326 at 113; DX 262 at 57 (filed under seal)). D.I. was placed in the Behavioral Hospital of Bellaire from November 18 to December 9, 2014, for “aggression.” (PX 2171 at 2-3 (filed under seal)). According to the Bellaire discharge report, dated December 9, 2014, D.I. was diagnosed as a sexual abuse victim and perpetrator. Id. at 2. Carter found that D.I. is still affected by the injury that he suffered while in Texas’s PMC. (D.E. 326 at 190-91). Carter testified that D.I. “continues to be a very disturbed boy,” is “heavily sexualized,” and “a high risk for sexually harming children.” Id. at 191. Unfortunately, as Carter testified and the Court so finds, D.I.’s experience is “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. See id. at 132-33, 194.
c. S.A. S.A. is a class representative for the General Class and the Licensed Foster Care Subclass. At the time of trial, S.A. was 18 years old and living in a shelter after aging out of PMC. (See DX 120 at DFPS009035700-10 (filed under seal)). She is one of the 1300-1400
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children who age out of PMC each year. She first came into Texas foster care at the age of five when her adoptive mother was arrested on outstanding warrants trying to cross into Mexico with her boyfriend, a registered sex offender.24 See id. at DFPS #48573, #48597. Within four months of entering foster care, she made her first sexual abuse outcry, reporting anal penetration by an older male foster child. (See D.E. 326 at 192; D.E. 325 at 23-24; DX 120 at DFPS008344565, 00903674, 1 RFP CPS 155128 (filed under seal)). After this abuse was reported, RCCL’s only response was to request that the Bair Foundation (the CPA that placed S.A. in that foster home) complete an internal investigation. (DX 120 at DFPS008344565 (filed under seal)). This investigation was labeled “Priority 3,” meaning that it related to “minor violations of the law or minimum standards that involve low risk to children.” Id. According to that report, the CPA performed an internal investigation but “did not cite any non-compliances” and planned no further action. Id. at DFPS008344566. It is hard to imagine that a five-year old could have any frame of reference to fabricate anal penetration. There is no evidence in S.A.’s 33,000 pages of case files that she was interviewed regarding these allegations or that she received any type of physical examination or medical treatment in connection with these allegations. It does not appear that RCCL conducted any independent investigation or follow-up in regard to these allegations. Because RCCL allows CPAs to keep their own files, the records of the CPA’s internal investigation are not in her IMPACT25 or External26 case files. Therefore, no subsequent caseworker would have this information.
24 The record is unclear whether S.A. was sexually abused before coming into foster care in Texas. 25 IMPACT, or Information Management for the Protection of Adults and Children in Texas, is an automated system, included in children’s case files, in which DFPS staff record casework related activities. DFPS Handbook § 1181, http://www.dfps.state.tx.us/handbooks/cps/files/CPS_pg_1170.asp (last visited December 14, 2015).
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Although the CPA Ruled Out abuse based on its internal investigation, S.A.’s foster parents asked that she be removed “to ensure her safety and [prevent] any possible contact between her and the other child.” Id. DFPS #49623. Approximately a month later, S.A. was moved to an emergency shelter in an RTC. Id. at DFPS #49624-5. After S.A.’s sexual abuse outcry, she began exhibiting frequent, uncontrollable, and “extreme tantrums where she tried to hurt herself and others.” Id. at DFPS #49622, #48997. A week after the outcry, S.A. was hospitalized due to those behaviors. See id. at DFPS008344565. Throughout her time in care, she repeatedly reported being uncomfortable around and distrustful of older, especially male, children, and male adults. See, e.g., id. at DFPS #49435-36, #49438-40, #49464. S.A told her caseworker that she did not trust CPS “to keep her safe.” Id. at DFPS #49435. There are mentions throughout her records that she received therapy to address past sexual abuse. S.A. entered PMC at the age of six in late 2002, already exhibiting “sexual acting out,” which was graded as “extreme.” Id. at DFPS009037819.
Expert and fact witnesses for both parties testified that once children are sexually abused, or “sexualized,” that behavior is ongoing and destructive to themselves as well as to the other children with whom they come in contact. (See D.E. 299 at 36, 70-71; D.E. 303 at 8; D.E. 304 at 51; D.E. 326 at 15-16, 105-06, 113-15, 162-63; D.E. 328 at 161). As discussed infra, because DFPS does not track child-on-child abuse in an aggregate or centralized manner, it is possible that these children will again be placed with the same children who participated in their earlier sexualization. See Section IV.B.1. Although Defendants’ and Plaintiffs’ experts agreed that
26 External case files contain supporting case documentation that cannot be entered or uploaded into the IMPACT system, including paper documents, spreadsheets, photographs, computer disks, audio tapes, and video tapes. DFPS Program Handbook § 5212, http://www.dfps.state.tx.us/handbooks/aps/files/APS_pg_5200.asp (last visited December 14, 2015).
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sexually abused children should live in single-child placements, none of S.A.’s 13 foster homes was a single-child placement. (See D.E. 328 at 161; D.E. 329 at 161; D.E. 303 at 8).
S.A. is one more child that entered the foster care system at a Basic-level of care and exited from an RTC some 13 years later, severely damaged. She had over 45 placement changes and lived in at least 33 different placements throughout the State. (D.E. 325 at 21-22; see DX 120 at DFPS009030795-96 (filed under seal)). Many of these placements were in psychiatric hospitals where she was restrained and heavily medicated. Several of these placements were inappropriate, some lasting as little as two days. She was shuttled between different placement types including foster homes, restrictive RTCs, and emergency shelters. The reason for moving S.A. was generally a decreased level of care or displaying aggressive and self-abusive behavior. (See DX 120 at DFPS #48435-568, #48993-99, #49002-21, #49495, DFPS009030795-96 (filed under seal)). Because of the significant amount of time that she spent in RTCs, at the age of 17 S.A. did not have “basic adult living preparation skills,” and did not know how to wash dishes or set a table. Id. at DFPS009035666.
S.A.’s longest stay at a placement was at the Hill Country Youth Ranch (“HCYR”) RTC in Ingram, Texas, where she was placed in December 2003. Id. at DFPS #49008, #48716. In July 2004, her service plan indicated that DFPS would “look at placing [S.A.] in another RTC since she has made minor improvement and the current facility staff feel there is no more that [S.A.] can benefit from their program.” Id. at 1 RFP CPS 177486. However, the department did not remove her from that RTC until nearly three years later, in April 2007, because her level of care was reduced. Id. at DFPS #49103. By then the placement change appears to have been contrary to S.A.’s needs. By 2007, S.A. had made remarkable progress socially, emotionally, and academically at the RTC and appeared to finally have some stability in her life. See id. at
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DFPS009043113-14, 009043119-20. Although her improvement was significant, multiple professional staff members at the RTC, including the school director, believed that she should not have been removed when she was, especially in the abrupt manner in which CPS conducted the removal. See id. In letters to a Cameron County district judge, the staff members said they were “shocked and saddened by [S.A.’s] sudden removal” and admonished CPS for their failure to fully consider the propriety of the removal. Id. In her letter, the RTC school director wrote:
I am unclear as to how the decision to remove [S.A.] was made, and I do not know who made it or the criteria used to reach this judgment. I was informed of her impending removal this morning immediately before her departure. In the midst of many tears and much confusion, we attempted to say our goodbyes and to provide her with some measure of support and comfort. It was and still is painful to think that this child was removed from a positive and fruitful program that was clearly advantageous to her. I truly have no words to describe the depth of my objections to this decision, as well as my disappointment at the manner in which her removal was done. This child may have been well-served if the person or persons making placement decisions would have sought and obtained objective data and information from the staff who were effectively working with her. Sadly, her amazing struggles, effort and eventual success were dismissed and disrespected in this life-changing decision. Id. at DFPS009043119-20 (emphasis added). One of her former instructors stated that S.A. had made much progress after a very difficult beginning and was not “ready to be taken from here.” Id. at DFPS009043114. The instructor further stated that she was disappointed that S.A. was being removed just as she was “showing improvement, and . . . starting to blossom.” Id. After this removal, S.A. was placed in a therapeutic foster group home that lasted only two days because she became “violent and defiant.” Id. at DFPS #48716. She was removed to another therapeutic foster home where she remained for 11 days before being admitted to a psychiatric hospital for self-abusive and suicidal behavior. Id. While in this hospital a
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psychologist evaluated S.A. and noted that she had become “too aggressive and assaultive and was considered to be dangerous to the other children in the home” and that “she had a history of not getting along with other children” in foster homes. Id. at DFPS #52873-74. That psychologist determined that she was “unable to live in a community setting” and recommended she be placed in an RTC to meet her level of care, which was up to Specialized. Id. at DFPS #52876-77. In spite of the psychologist’s recommendations, S.A. was again placed in a therapeutic foster home with other children. Id. at DFPS #48810, #49500. This placement lasted six days, as she became confrontational, taunting, and negative, particularly toward the other children in the home, and ended with her readmission to a psychiatric hospital after an episode of uncontrollable yelling, screaming, and crying. Id.
S.A. had many other inappropriate placements throughout her time in care. For example, after several failed foster home placements, S.A. was placed in an RTC in July 2007. In September 2007, S.A.’s I See You caseworker was concerned about S.A.’s continued restraint pattern and that the RTC staff did not appear to be “dealing with her behaviors very well.” Id. at DFPS #49505-06. Earlier that same month her caseworker observed and reported that S.A. was being inappropriately restrained in that RTC when a staff member bent and pushed S.A.’s arms backward to the point that the caseworker was “concerned that her shoulders/arms would be pulled out of [their] sockets or her elbows broke[n].” Id. at DFPS #49507. The caseworker noted that she thought the RTC was unable to provide for S.A.’s needs at that time and an RCCL investigator who visited S.A. concluded that she did not belong at that RTC. Id. There is nothing in S.A.’s files, though, about the outcome of that investigation or whether the offending staff member was ever admonished for the improper restraint. S.A. was not removed from that RTC until December of that year. See id. at DFPS #49045, #49511-18.
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As another example of an inappropriate placement, in mid-2010 S.A.’s psychological evaluation stated that, because she was “vulnerable to self-destructive and aggressive behaviors,” she required “ongoing placement in a locked facility to help manage her mood and behavior.” Id. at DFPS009041897. Yet, two months later, she was placed in a therapeutic foster home. Id. at DFPS #49087. After approximately four months, which included almost daily emotional breakdowns and two psychiatric hospitalizations, she was moved to a new RTC. See id. at DFPS #49087-94, #49403-13. Finally, in October 2011, she was returned to HCYR RTC where she had previously been successful, but her evaluating psychologist noted that she was “increasingly aggressive especially toward young children” and habitually tried to hurt herself and others. Id. at 1 RFP CPS 006986. This psychologist recommended that she be placed either with a family trained in appropriate techniques without any other children or an RTC “where there is a high level of restriction, rules, consequences, structure, routine, emotional support, modeling, praise, and help with academic, developmental, and psychiatric needs.” Id. at 1 RFP CPS 006992. This psychologist recommended that DFPS make every effort “to NOT move [S.A.] again before she is an adult.” Id. Nonetheless, a week later S.A. was moved to a different RTC for two weeks, whereupon she was placed in another psychiatric hospital. Id. at 1 RFP CPS 177322-23. In July 2012, she was moved to a therapeutic foster home that had other foster children. Id. at 1 RFP CPS 177980, 1 RFP RCCL 03635.
Along with the many placement changes, S.A. experienced a revolving door of caseworkers. She had approximately 28 different primary and secondary caseworkers. See id. at DFPS009033366-942. Her records reflect that she was often upset to learn she had a new primary caseworker, and usually her previous caseworker left without giving her notice. See, e.g., id. at DFPS #49437, #49439. During her first few years in foster care, her caseworkers
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visited her in person only four times a year. See id. at DFPS #48689, 1 RFP CPS 177485. In 2005, an I See You worker began to visit S.A. on roughly a monthly basis. S.A. would sometimes go several months without any contact with her primary caseworker and would complain about this to her various I See You workers. See, e.g., id. at DFPS #49386, #49511, #49516, #49519. At least once when her primary caseworker changed without any notice, S.A. continued to try to contact the former caseworker without any response. Id. at DFPS #49519. Eventually, after months without contact from her primary caseworker, one of her I See You workers checked IMPACT and discovered that her primary caseworker had changed. Id.
Throughout her time in care, several possible adoptive placements never materialized, in part due to significant paperwork delays. See, e.g., at DFPS #49445-61, #49535. The most common obstacle in placing S.A. with potential adoptive families was her caseworkers’ failure to update her health, social, educational, and genetic history report (“HSEGH”). This report must be shown to prospective adoptive parents before any adoption can go forward. (See id. at DFPS # 49123; PX 1964 at 22). The delays appear largely attributable to a frequent turnover in her primary caseworkers. (See DX 120 at DFPS #49450 (filed under seal)).
In May 2005 and again in February 2009, delays in updating her HSEGH derailed several possible adoptive placements. See id. at DFPS #48694, #49445-61, #49535. S.A. experienced a significant amount of worry and anxiety throughout the potential adoption delays, and the continued failure to update the reports was particularly devastating for her. See id. at DFPS #49436-41, DFPS #49447-48. In spite of this, she continued to hold out hope of being adopted. See, e.g., id. at DFPS #49366-67, #49475, #49491. In 2011, a psychologist noted in his evaluation of S.A. that her prior failed adoptions was one of her major psycho-social stressors and that her behavior became increasingly worse after this. Id. at 1 RFP CPS 006986-90.
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S.A. significantly deteriorated while in care, as reflected in her psychological evaluations. Shortly after entering State custody, she received an initial psychological screening and was provisionally diagnosed with Disruptive Behavior Disorder, but no learning disorders, ADHD, or PTSD. Id. at DFPS #52311, #52321. She received a full psychological evaluation in early 2002, which found that her intellectual functioning was approximately “in the upper end of the Low Average range,” which was likely an “underestimate of her actual intellectual level of functioning.” Id. at DFPS00941860. At that time, she was diagnosed with ADHD and Intermittent Explosive Disorder. Id. at DFPS00941861. In her psychological evaluation in late 2003, she was diagnosed with Bipolar Disorder, mixed with psychotic features, ADHD, Reading Disorder, Mathematics Disorder, and Disorder of Written Expression. Id. at DFPS009041870. By early 2004, S.A. was additionally diagnosed with PTSD and Reactive Attachment Disorder. Id. at DFPS009043286. Her psychosocial stressors included “potential sexual molestation” and “failed placements.” Id. In July 2005, a psychologist diagnosed her with Cyclothymic Disorder and Oppositional Defiant Disorder, and said she was susceptible to “a full-blown mood disorder such as Bipolar Disorder II or Major Depressive Disorder.” Id. at DFPS009041874. In April 2007, shortly after she was removed from HCYR RTC, a hospital psychologist concluded that S.A. was “a danger to herself and others” and that she should be “committed for long-term psychiatric care.” Id. at DFPS009041884. At this psychiatric admission, she was diagnosed with Bipolar Disorder, Conduct Disorder, and Dysthymia. Id. at DFPS009041879-83. In 2008, she was diagnosed with all of the above plus ADHD and Impulsive Disorder. Id. at DFPS #52113. By this point, S.A. was prescribed Lithium Carbonate,27 Trileptal, Risperdal, and
27 Lithium is used to treat manic symptoms. The many potential side effects include extreme thirst, weakness, restlessness, confusion, vision problems, lightheadedness, fainting, hallucinations, seizures, fever, nausea, vomiting,
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Vyvanse, to “help improve mood swings, sleep, attention and to reduce aggression, hyperactivity and impulsivity.” Id. In 2009, S.A. reported during a psychological evaluation that she “cannot sleep and has bad dreams every other night in which she gets killed,” that she “has felt so sad that she no longer wanted to live,” and that she “tried to kill herself twice using a knife and a piece of glass.” Id. at DFPS009041886.
During her 2010 psychological evaluation, S.A. “denied that any happy things [had] ever happened to her” and described her mood as depressed. Id. at DFPS009041893-94. The psychologist at that time found that her intellectual functioning appeared to be “in the borderline to possibly mildly mentally retarded range” and that her “overall functioning is very impaired.” Id. at DFPS009041896. The psychologist was concerned that S.A.’s intellectual functioning could deteriorate even further to “a level of clear mild mental retardation.” The psychologist noted, “In the past she was described to be functioning higher.” Id. at DFPS009041896. The psychologist further noted that S.A. “has a long history of rejection, abandonment, and betrayal by others,” which as a result “has significantly interfered with her capacity to trust others and develop meaningful human relationships.” Id. The psychologist observed that S.A. saw other humans as “perpetrators and irritants.” Id.
Her next psychological evaluation in 2011 noted that she “displayed regressed emotional functioning” and that her behavior had not improved over the past year. Id. at 1 RFP CPS 006986. At this point S.A. was 15 years old and composed the following sentences, among others, during that evaluation: “Other kids make me frustrated”; “I regret hitting little kids”; “I can’t stay in a place a long time”; and “I need a family.” Id. at 1 RFP CPS 006989. S.A.’s reading skills were estimated between third and fourth grade levels and the psychologist noted
diarrhea, drowsiness, and lack of coordination. http://www.drugs.com/lithium.html (last viewed July 27, 2015).
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that two of her major psycho-social stressors were “numerous placements” and “failed adoptions” and that “not being apart [sic] of a family is painfully disturbing to this child.” Id. at 1 RFP CPS 006990. The psychologist also found that S.A.’s “caseworkers need to be thinking of her long-term future because” she “will not be able to be on her own when she is 18, if ever” and “will likely always need the support of a closed community to keep her safe and to help her function on a daily basis.” Id. at 1 RFP CPS 006992.
According to Carter, because of her many placements, S.A. had little “sense of who she is and what her history is” and “no sense of . . . belonging.” (D.E. 326 at 98-99). She could not remember all the places she has been and could not assist Carter in developing a chronology of her life. Id. She is “disgusted by the ways she has been allowed to fall through the cracks” in foster care due to the constant turnover of primary caseworkers and her many placements. Id. at 96. S.A.’s education was also significantly impacted by her many placement changes; she attended 16 different schools over 13 years. (DX 120 at DFPS009035208-13 (filed under seal)).
Based on an IQ and achievement screening that Carter administered, S.A. is “well below normal in all areas” and at the age of 17 could not “read past the third or fourth grade level.” (D.E. 326 at 99, 130-31). According to Carter, S.A. knows that she is a “psychological wreck” and not equipped to become an independent adult in this world. Id. at 130. Like almost all other current and former Named Plaintiffs, S.A. exhibits a condition of “learned helplessness,” which occurs when a “child learn[s] that [her] circumstance [is] unlikely to change and it manifests itself in the form of a helpless sense or helpless state.” Id. at 91, 132. Two months after she aged out of care and one week after Carter’s evaluation, S.A. walked into traffic on a highway and was hit by a car. (DX 120 at DFPS009033437 (filed under seal)). Fortunately her injuries were not life threatening. Id. S.A., who aged out with no life skills and nowhere to go, is
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another example of the forgotten children in Texas’s PMC. Unfortunately, as Carter testified and the Court so finds, S.A.’s experience is “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. (See D.E. 326 at 132-33, 192, 194).
d. A.M. A.M. is a class representative for the General Class and the Licensed Foster Care Subclass. At the time of trial, A.M. was 17 years old. She was placed in foster care in July 2004 at age seven due to her mother’s neglectful supervision. (DX 120 at DFPS009048706 (filed under seal)). Her case files numbered approximately 36,000 pages. When she was placed in care, her father was on death row and her mother was on trial for homicide. Id. at DFPS #3980. DFPS had previously investigated possible physical abuse and neglect of A.M. and her sister in 2003, but determined no abuse occurred. Id. at 1 RFP CPS 133080. A.M. came into care with two half siblings with whom she was very close. She was essentially the primary caregiver for her younger sisters. See id. at 1 RFP CPS 133081. A.M.’s first caseworker noted that A.M. was “consumed with caring for her little sisters,” particularly her youngest sister, whom A.M. called “my baby.” Id. at 1 RFP CPS 133130. All three siblings were initially placed together in a foster home outside of their home community, but within 50 miles. Id. at 1 RFP CPS 133131. In August 2004, A.M.’s next younger sister was removed to a kinship placement with her biological father, where she reportedly did well.28 Id. at DFPS #3375. In October, that child was dismissed from DFPS custody and her biological father was granted permanent conservatorship of her. Id. at DFPS #3376. Although DFPS initially made efforts to keep A.M. and her youngest sister together, they were eventually separated. See id. at 1 RFP CPS 133361.
28 The three siblings each reportedly had different biological fathers.
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A.M. had two failed adoption placements. In the first, after cycling through several therapeutic foster homes, in December 2004 A.M. and her half-sister were placed in a preadoptive placement. Id. at DFPS #3476, 3374-80, 3384. Although A.M. initially did well, her behavior began to deteriorate. See id. at DFPS #3386-93. These foster parents struggled to handle her fits of rage. In February 2006, A.M.’s therapist notified CPS that these foster parents intended to separate A.M. from her sister and return A.M. to CPS. Id. at DFPS #3360. A.M.’s caseworker reported serious concerns that these parents were in a “power struggle” with eightyear-old A.M. See id. at DFPS #3360, #3424. The caseworker also expressed concern that these parents refused to change their child-rearing techniques despite A.M.’s needs. Id. at DFPS #1010. The foster father refused all of A.M.’s therapist’s suggestions for how to deal with her behavior, instead forcing her to run laps in the back yard. See id. at DFPS #3428. Nonetheless, the adoption process for only the younger sister continued. Id. at DFPS #3360.
In April 2006, the foster parents demanded that A.M. be removed immediately as A.M. allegedly tried to hurt her younger sister. Id. at DFPS #3435-36. Both children were removed. Id. at DFPS #3437-38. After removal, the two year old younger sister displayed disturbing behavior, including attempting to place a crayon in her vagina and open-mouth kissing. Id. at DFPS #3437. A.M. reported that the former foster parents punished her by making her drink vinegar, which induced vomiting. Id. at DFPS009048356-64. A.M.’s aunt reported to her caseworker that she was glad that the children were removed as the foster mother made A.M. eat alone in the kitchen, forced her to clean the house, and didn’t allow her to play outside. Id. at DFPS #3450. RCCL investigated the allegations and Ruled Out any abuse in the previous foster home. Id. at DFPS009048366, 009048440-41.
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In May 2006, both children were placed in a therapeutic foster home. Id. at DFPS #3449. A week later A.M. was placed in a psychiatric hospital for anger, rages and threats to harm herself and her foster parents. Id.
In July 2006, A.M. returned to the same foster home and for a time appeared to be improving, though she did have outbursts and crying fits. Id. at DFPS, #3452, #3456-57. The foster parents expressed interest in adopting both children. Id. at DFPS #3456. At this time, the foster parents changed the first name of the younger sister. Id. at DFPS #3457-61. A.M.’s behavior continued to deteriorate and, in December 2006, the foster parents informed A.M. that “her behavior needed to improve, or she may not be able to stay.” Id. at DFPS #3461. The caseworker requested that she be given adequate notice if A.M. could not remain with them to avoid placing her in a shelter. Id.
In January 2007, a court agreed to separate the two siblings, thus allowing the younger sibling to be adopted. Id. at DFPS #3350-51. A.M. apparently had no knowledge of this, as her psychologist wrote to the court in October 2007 that it was in A.M.’s best interest to remain in this placement with hopes of adoption and that her removal from this placement “would be a tremendous loss to her and highly destructive to her ability to attach to any parents in the future.” Id. at DFPS #3188. The psychologist also warned that the younger sister’s adoption should not be kept a secret from A.M. as her “inevitable realization of this deception will significantly impair her ability to trust . . . and further impair her attachment process.” Id. Around this time, her caseworker noted that a separation from her sister would wound A.M.29 Id. at DFPS #3214.
29 From January to October, 2007, A.M.’s only contact with a caseworker was an I See You worker. Notes indicate that this worker spoke with the foster parents by phone and in person once during this ten-month period. A.M.’s monthly impact evaluation prepared by her primary caseworker appears to be entirely based on secondhand information from the I See You worker.
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In May 2007, A.M. told her I See You worker that she wanted to stay with this family because she loved them and wanted to be with her younger sister. Id. at DFPS #3468. That same month, the foster parents informed the I See You worker that they intended only to adopt the younger sibling and suggested A.M. be sent to a group home. See id. Still A.M. was left in the dark by everyone as to this second failed adoption. In December 2007, the foster parents formally adopted the youngest sister and changed her last name. Id. at DFPS #963. A.M. asked her caseworker if her name could be changed as well. Id. at DFPS #961. No response is noted.
Two weeks later, A.M. had a major meltdown and was placed in emergency respite care. Id. at DFPS #963. By January 2008, she was in a psychiatric hospital for her behavioral deterioration and for hitting her teacher. Id. at DFPS #964. The following day, the foster parents gave notice that they could no longer provide A.M. a home even though they signed a long-term care agreement for A.M. around the time they adopted her younger sister. Id. Carter testified that A.M. “deeply regrets” being separated from her two half-sisters. (D.E. 326 at 120, 122).
After a placement change, A.M.’s behavior and emotional state deteriorated even further. According to Talley, A.M.’s next friend, A.M. never recovered from that second rejection. (D.E. 323 at 98). After two weeks in the psychiatric hospital, in February 2008 A.M. was placed in an RTC. (DX 120 at DFPS #969 (filed under seal)). She remained there for approximately three years, and was visited exclusively by her I See You worker. See id. at DFPS #1101-51. Despite seeing A.M. regularly over the three years, the worker seems to have never developed a relationship with A.M, mechanically asking the same 10-12 questions at every visit to which A.M. gave one-word responses. See id. at DFPS #828-997. After A.M.’s primary caseworker dropped her off at the RTC in February 2008, A.M. did not see her primary caseworker again until February 2011, when a different primary caseworker took her to another placement. See id.
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A.M.’s primary caseworkers changed four times over that period, meaning that three of them never saw A.M. in person. See id. A.M. spoke with her primary workers by telephone less than once a month over that period, often initiating the calls herself. See id.
In April 2009, a person from North Carolina contacted CPS about adopting A.M. See id. at DFPS #989. For two months, CPS prepared A.M. for the possibility of being adopted in a different state. See id. at DFPS #991-98. In July 2009, A.M. told her therapist that she did not want to be adopted “because she would live so far away and would not see her sister.” Id. at DFPS #998. That same month, A.M.’s therapist informed her primary caseworker that A.M. “can’t seem to get out of her head that the family that adopted her sister [did] not want to adopt her and won’t.” Id. at DFPS #999. In June 2010, CPS learned that the person from North Carolina had been untruthful and was carrying on a relationship with A.M.’s father, who was still on death row. Id. at DFPS #905-06. Because of the attempted deception, CPS immediately stopped all contact between this person and A.M. Id. at DFPS #906. Two weeks later, CPS decided to stop all “active recruitment efforts” for a permanent home for A.M. and her permanency goal was changed to Another Planned Permanent Living Arrangement (“APPLA”). Id. at DFPS #824, #906. According to DFPS policy, APPLA is reserved for children age 16 and above when all other possible permanency goals have been explored and ruled out. And the caseworker must state a compelling reason why no other permanency goal is possible or appropriate. (PX 52 at 29). A.M. was 12 years old when her permanency goal changed to APPLA. On her service plan that month, A.M.’s caseworker acknowledged that A.M. may now age out of care. (DX 120 at DFPS #329 (filed under seal)).
Since June 2010, A.M. cycled through ten more placements (including five different RTCs) and had at least three more psychiatric hospitalizations, including an unnecessary six
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weeks in a psychiatric hospital because CPS could not find her a placement. See id. at DFPS009043853-920. By February 2014, A.M.’s behavior had deteriorated to such an extent that most RTCs in Texas appeared unwilling to take her. See id. at DFPS009043821. In August 2014, she was discharged from the only RTC that had been willing to take her, when she assaulted a staff member and was taken into police custody. Id. at DFPS009043809, 00904425661. She was detained at the Bexar County Juvenile Detention Center. Id. at DFPS009043809. As of October 2014, A.M. was living in another RTC, more than 200 miles from her home county. (DX 266 at 3 (filed under seal)). DFPS expected her to age out of care when she turned 18 on July 31, 2015. (PX 2003 at 106 (filed under seal)).
When A.M. first entered care, her level of service was Basic. (DX 120 at DFPS009048706 (filed under seal)). Throughout her time in care, her service levels ranged the entire spectrum, mostly alternating between Moderate and Specialized, with two extended periods at Intense. See id. at 1 RFP CPS 132864-3000. Although A.M.’s level of care had fluctuated previously, she was Basic for most of her stay with the first potential adoptive family in 2005-06. Id. at DFPS #44-57. Approximately two months after that placement failed, her level of care raised from Basic to Specialized. Id. at DFPS #58. A.M. fluctuated between Moderate and Specialized throughout her time with the second potential adoptive family in 2006-07; she was Moderate at the time that her sister was adopted. Id. at DFPS #58-73. At the end of January 2008, almost immediately after A.M. was returned to CPS while her sister was adopted, A.M.’s level of care increased from Moderate to Specialized. Id. at DFPS #74. Less than two months later, her level of care rose for the first time to Intense. Id. at DFPS #76. Her level of care fluctuated for the rest of her time in care, remaining primarily on Specialized, and never again reduced to Basic. See id. at 1 RFP CPS 132864-3000, DFPS009043800.
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A.M. changed schools at least ten times while in State custody. See id. at 1 RFP CPS 135321-25. Shortly after she entered care, A.M. appeared “to be right on target developmentally” and had “no known developmental delays.” Id. at DFPS009048706. In early 2006, approximately a year and a half later, A.M. was still doing well in school, had good word comprehension, and evenly developed math skills. Id. at DFPS009050704. In April 2006, her evaluating psychologist found that her “basic academic skills [were] better developed than those of most” children her age and believed that A.M. would do “well in a regular education classroom.” Id. A.M. was in third grade at the time and was regarded as “generally a good student, and very bright.” Id. at DFPS009048727. She remained in regular classes until 2008, at which point she began receiving special education services. Id. at 1 RFP CPS 135323, DFPS009050535. She continued to receive special education services on and off throughout the rest of her time in care, though she initially remained a good student overall. See id. at 1 RFP CPS 135321-23. For example, in the sixth grade (2008-09 school year), she received a “90” or above in all of her classes. Id. at DFPS009048993. During the 2010-11 school year (eighth grade), A.M. had a “90” or better in all of her core classes, with a “100” in Mathematics. Id. at DFPS009049166. As of July 2014, though, after being shuffled between different four RTCs over three years, A.M.’s grades fell to “below average.” Id. at DFPS009043800-01. As of October 2014, A.M. was attending a self-contained special education program for “emotionally disturbed children.” (DX 266 at 3 (filed under seal)).
During her time in foster care, A.M. had at least eight different primary, and eight different secondary, caseworkers. (See DX 120 at 1 RFP CPS 133792-4232 (filed under seal)). Because several of her placements were far from her home county, A.M. never met many of her caseworkers. See id. A.M. changed placements at least 21 times, including seven psychiatric
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hospitalizations. See id. at DFPS009043800. Although early on in her time in care she was placed mainly in therapeutic foster homes, since 2008 she lived primarily (five and a half of her last seven years in custody) in various RTCs, all hundreds of miles from her home county. Id. Carter opined that A.M. is “so damaged from being moved from RTC to RTC, she [doesn’t] know how to function in a home.” (D.E. 323 at 97-98). Carter testified that A.M. viewed her experience in foster care overwhelmingly negatively. (D.E. 326 at 120-22). While in care, A.M. would occasionally “achieve relative stability,” during which her service level would improve, and as a result her placement would be changed. Id. at 122. She was often moved just as she became accustomed to her placement. See id. According to Carter, A.M. has not “achieved any kind of lasting stability” in State care. Id. at 120, 122. Carter testified that A.M. projects her pain caused by separation from her siblings outward by being “extremely defiant.” Id. at 122. Like most of the other Named Plaintiffs, she has “no sense of belonging” and does not know how to function in a family environment. See id. at 121-22. She is woefully unprepared “for adulthood, for marriage, family life, social settings,” or employment. Id. at 136. Carter concluded that A.M. had been “greatly hurt” in foster care. Id. at 192, 194. Unfortunately, as Carter testified and the Court so finds, A.M.’s experience is “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. See id. at 132-33, 192, 194.
e. J.S. J.S. is a class representative for the General Class and the Licensed Foster Care Subclass. At the time of trial, J.S. was 12 years old. (D.E. 326 at 95). He was removed from his mother’s home in Lubbock in May 2007, at the age of five, due to neglect and his mother’s drug abuse. (DX 120 at DFPS009058393 (filed under seal)). He was initially placed in a foster group home with his older sister (and her infant child). See id. at DFPS009058892. In his first psychological evaluation, in July 2007, the psychologist diagnosed J.S. with Adjustment Disorder with Mixed
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Anxiety and Depressed Mood, and noted that J.S. may have a learning disability, but also said that if he “remains in a stable environment, his prognosis is good.” Id. at DFPS009062646. His initial level of care was Basic. See id. at DFPS009058904. Yet, two weeks later, J.S. was moved to an emergency shelter at a GRO. Id. at DFPS009058894. Shortly after that move, J.S. made an outcry of prior sexual abuse by two of his young cousins. Id. at 1 RFP CPS 014877, DFPS009068441, DFPS #40677. Although the allegations were investigated, it does not appear that a doctor physically examined J.S. in connection with that outcry. Id. at 1 RFP CPS 015429. J.S. did not receive any specialized counseling to address those allegations either. See id. at 1 RFP CPS 015463.
In October 2007, J.S. was admitted to a psychiatric hospital and his level of care was increased to Specialized because he threatened to cut his neck, cut off his nose and brain, and shoot himself. Id. at DFPS009055638, 009062077. There, only four months after entering care, an evaluating psychologist found that J.S. was suffering from anxiety and depression, noting that J.S.’s “depression appear[ed] to have worsened causing him to act out even more.” Id. at DFPS009062182. In November 2007, DFPS moved J.S. to an RTC in Victoria, 500 miles away, separating him from his sister. Id. at DFPS009058904. After this move, J.S.’s behavior worsened and he began to act out sexually, “exposing himself to his peers and asking for them to perform oral sex on him.” Id. at DFPS009062772. J.S.’s caseworker noted that sexual acting out was now “an obvious issue.” Id. at DFPS009062811. In spite of Defendants’ and Plaintiffs’ experts testifying that sexually abused children should live in single-child placements, DFPS never placed J.S. in a single-child home. (See D.E. 328 at 161; D.E. 329 at 161; D.E. 303 at 8). J.S. made little progress at the Victoria facility. During that placement, a judge referred to J.S. as “unadoptable.” Id. at DFPS009059404. J.S. remained at that RTC until November 2008, at
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which point DFPS moved him back to Lubbock to reestablish contact with his sister, per his attorney ad litem’s request. Id. at DFPS009058903. Lutheran Social Services, a CPA, placed J.S. in a therapeutic foster home. Id. at DFPS009055662, 009058906.
J.S.’s behavior initially worsened in that home, at times running out into the street and telling his foster mother that he wanted to be hit by a car. See id. at DFPS009057698. J.S. eventually improved, growing close to his foster mother. Back in Lubbock, in December 2008 J.S. began having visits with his sister, which made him very happy. See id. at DFPS9061249. In January 2009, J.S.’s caseworker noted that J.S.’s sister was still visiting him weekly and that his behavior had improved, although he continued to struggle. Id. at DFPS009061253. In May 2009, a psychologist noted that J.S.’s “behavior had improved significantly since this examiner last evaluated [J.S.].” Id. at DFPS009062463. J.S. was diagnosed with Adjustment Disorder with Depressed Mood, Dysthymic Disorder, and ADHD. Id. The psychologist noted that J.S. required “a stable, long-term placement.” Id. In August 2009, J.S.’s caseworker wrote that J.S. “appeared happy and healthy” and that he was “free from abuse and neglect [in] his current placement.” Id. at DFPS #40524. Two weeks later, though, and for reasons that are not supported by any concrete evidence or findings, J.S. was removed from that placement. The removal appears to have been based entirely his caseworker’s concern that J.S.’s foster home had a “chaotic structure” and his doctor’s worry that J.S.’s foster mother “may” not have had “adequate training to deal with” J.S.’s behavior. Id. at DFPS #40528, #40530. There is no record that DFPS investigated these allegations. According to the caseworker’s notes, J.S. liked living in that home and when he was told that he would not be returning, he became very angry and began to cry. Id. The Bair Foundation moved him to another therapeutic foster home. Id. at DFPS009063546.
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J.S.’s behavior and condition declined dramatically. Although J.S. had “show[n] improvement at [his] previous school,” a month after being moved, he was suspended from his new school several times. Id. at DFPS009057707. When placing J.S., neither DFPS nor the CPA informed his new foster parents about his history of sexual abuse and sexually acting out. Other than his race, the only information that the foster parents were told prior to bringing J.S. into their home was that he was “desperate for a placement.” Id. at DFPS009062030. The foster parents, who had three other similarly aged foster children and an adopted teenage son, only learned about J.S.’s tendency to act out sexually when J.S. exposed himself to two of his foster brothers. Id. at DFPS009062030, 009061738-39. J.S. shared a room with R.R., the foster parents’ 15-year-old adopted son; they slept in bunk-beds. Id. DFPS009062030-32.
Within two months of being placed in that home, J.S. made a sexual abuse outcry. On November 5, 2009, a teaching assistant overheard seven-year-old J.S. tell his eight-year-old foster brother: “I’m gonna stick my [penis] in your [behind], it’s gonna hurt you but it’s gonna make me feel good.” Id. at DFPS009061758. When later questioned, J.S. indicated that his foster brother had performed anal sex on him, but did not provide any other details. Id. The school’s principal told RCCL that the children’s behavior had recently become much worse, and the teaching assistant told RCCL that she observed R.R. “be a real bully to the other children.” (DX 120 at DFPS009062029 (filed under seal)). The Child Advocacy Center conducted forensic interviews with J.S. and his three foster brothers, but none of them made any further outcries. Id. at DFPS009062035. During J.S.’s interview, he denied that anyone touched him inappropriately, but did state that his roommate, R.R. “scare[d] him.” Id. at DFPS009062026. There is no record in J.S.’s approximately 40,000 pages of case files that a doctor physically examined J.S. in connection with these allegations. After many years of therapy, J.S. would later admit to his
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psychologist that a boy at a previous placement blindfolded him, urinated on him, and fondled him. Id. at 1 RFP CPS 136190. Even during his 2014 psychological evaluation by Carter, J.S. only admitted that he was “sexualized” by his foster brother, but was too embarrassed to discuss the incident any further. (D.E. 326 at 115).
During the investigation, the foster father told the RCCL investigator that, one month prior, R.R. had exposed himself to one of the other young boys in the home, that R.R. had a “sexual history,” and that another foster child had several years prior exposed himself to R.R. Id. (DX 120 at DFPS009062027 (filed under seal)). The foster father also told the investigator that due to R.R.’s “history and behaviors,” all of the rooms have baby monitors and motion detectors, although the detectors do not pick up movement in a child’s bed.30 Id. The investigator who reviewed R.R.’s case files confirmed that R.R. had a sexual abuse history, had acted out sexually in the past, and had only one week earlier exposed himself to one of the other foster children. Id. at DFPS009062029. Following that previous incident, DFPS implemented a safety plan to ensure that R.R. “would not be alone with any of the foster children.” Id. During the investigation, the investigator discussed with the CPA’s case manager his concern that because R.R. was “much older and shar[ed] a room with” J.S., that “could have put [J.S.] at risk.” Id. at DFPS009062028. The investigator specifically noted that because R.R. had a history of sexual abuse, “the incident when he exposed himself to [another foster child] in October pose[d] a concern for the safety of any children alone or sharing a bedroom with” him. Id. The investigator informed the Bair Foundation that before any of the other foster children could return to that home, the CPA needed to “reduce the number of children in the . . . foster home”
30 The baby monitors turned out to be of little use as well. As J.S. told his therapist nearly a year later, he “couldn’t scream because he was too scared.” Id. at DFPS009066838 (internal quotation marks omitted).
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and prohibit R.R. from sharing a bedroom with any other child, which the Bair Foundation agreed to do. Id.; see 1 RFP 6 RCCL 01565-69. Yet R.R. continued sharing a room with J.S. Id. at DFPS009062029. Despite all of the above, the investigator never interviewed R.R., a decision his supervisor approved. Id. at DFPS009062031-33. The investigator Ruled Out neglectful supervision by the foster parents “with no minimum standard violations cited,” recommending only “[r]outine monitoring.” Id. at DFPS009062035. In making that disposition, the investigator noted that, aside from J.S., the “children in the foster home do not have any history of sexually acting out before or in this home,” in direct contradiction of his own investigation notes. See id. at DFPS009062026-35. The entire investigation, from outcry to final disposition, lasted less than a month. See id.
Although DFPS Ruled Out all allegations of abuse and neglect, it did not return J.S. to that foster home and placed him instead in an RTC, again far from his home county, where he immediately began “struggling with aggressive and inappropriate sexual behavior.” Id. at DFPS009057715, 009058914. The record of his time there is replete with serious incident reports, documenting many unsettling behaviors. Besides repeatedly exposing himself to other children, staff continuously found J.S. sleeping in the same bed as, kissing, and inappropriately touching other children. See, e.g., id. at DFPS009063328, 009067086, 009067206, 009067790, 009068214. The RTC eventually placed J.S. in his own room. Id. at DFPS009068857. Although his sister could no longer visit him, she continued to call J.S., albeit irregularly; J.S. told his caseworker that he missed his sister and liked talking to her.31 See id. at
31 By March 2010 (and perhaps much earlier), J.S.’s sister had aged out of care, although J.S. would continue to speak with her by phone on and off until at least the middle of 2011. See id. at DFPS009061186-317. His sister attempted to reestablish contact in August 2012, but CPS determined that it would be best for contact to be “limited” until the sister was able to maintain consistency in written correspondence. See id. at DFPS9061361-80. In January
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DFPS009061159; 009061203-18. J.S.’s next psychological evaluation, in July 2010, reflected marked deterioration. J.S. was diagnosed with PTSD, Major Depressive Disorder, Disruptive Behavior Disorder, and Reactive Attachment Disorder, all of which were new diagnoses. See id. at DFPS009062377, 009063226. In that evaluation, J.S. was characterized as “a very depressed, anxious[,] and angry youth who has suffered through a long history of chronic instability and mistreatment.” Id. at DFPS009063226. His level of care was fluctuating between Specialized and Intense. See id. at DFPS #42140, DFPS009068857.
In September 2011, J.S.’s RTC closed so DFPS moved him 200 miles to another RTC in Nacogdoches. Id. at DFPS009055662. J.S. was placed in a room with four other boys in spite of his well-documented history of sexually aggressive behavior. Id. at DFPS009058886. After two months, the Nacogdoches RTC “requested [J.S.] be moved due to his behavior requiring more supervision than what they were able to provide.” Id. at DFPS009058919. In November 2011, J.S. was moved to an RTC 250 miles away in Goldthwaite—his ninth placement in four years, not counting respite homes. See id. at DFPS009055662. His level of care at this point was Intense (his case files are inconsistent as to how long he had been at that level). Id. at DFPS #42140, DFPS009055662. J.S. remained at an Intense level until July 2013. Id. at DFPS009055656. Shortly before his level of care decreased, an adoption specialist described J.S. as “not looking anywhere near ready for [an] adoptive placement.” Id. at 1 RFP CPS 136258. Yet DFPS, after investing a considerable amount of effort, was able to find J.S. a preadoptive placement, more than 500 miles from his home county, which he was moved to in December 2013. Id. at DFPS009055662. In May 2014, J.S.’s caseworker noted that he appeared
2013, J.S. was again speaking with his sister by phone, but by July 2013, due to sister’s inconsistency, J.S.’s caseworker began withholding her letters from him. Id. at DFPS009061391-92, 009061416.
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to be bonding with his potential adoptive father, but that the caseworker was dependent on J.S.’s therapist and secondary worker for all such observations as “it [was] hard to tell what is on [J.S.’s] mind and how deep the bond is from long distance.” Id. at DFPS009061444. J.S.’s adoption was finalized on July 18, 2014. Id. at DFPS009056970, 009056973.
Throughout his time in care, J.S. had at least 15 different primary and secondary caseworkers. See id. at DFPS009059443-527. J.S. rarely saw, or even heard from, his primary caseworkers and had little opportunity to establish stable or meaningful relationships. See id. On the rare occasion that J.S. developed a relationship with a caseworker, it generally did not last very long and sometimes resulted in additional pain for J.S. For example, in May 2011, J.S. told his therapist that he was sad because he missed his caseworker—whom he had not seen in over a year at that point—and asked if he could write her a letter. Id. at DFPS #42124. Both primary and secondary caseworkers failed to visit J.S. regularly. No caseworker visited or even called J.S. in October 2009, immediately prior to his outcry of sexual abuse at the hands of another child in his placement. See id. at DFPS009059467-69. Most egregious, after his outcry and removal to an RTC, his primary caseworker did not visit him for over four months. See id. at DFPS009059469-74. Even when secondary caseworkers visited J.S. regularly, he was subjected to a flurry of different ones, each a complete stranger. For example, in a six-month period in 2010, J.S. saw six different workers, most of whom he had never met. Id. at DFPS009059443527. In 2011, J.S. saw seven different caseworkers, some for the first time. See id.
Not including several different respite homes stays, J.S. had ten different placements across Texas during his seven years in care. Id. at DFPS009055662. He attended eight different schools over that time, each in a different county. See id. at DFPS009060987-89. At the age of 12, J.S. was “a virtual non-reader.” (D.E. 326 at 115). According to Carter, J.S. has “severe
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attachment deficits” due to his experiences. Id. at 114. Although J.S. likely came into care with some attachment deficiencies, they worsened during his time in care “simply because . . . he was provided no stability whatsoever.” Id. Carter opined that J.S., due to his experience in substitute care, has “become an aggressor” and will likely hurt himself and others. Id. at 114-16. J.S. was “hurt by his experiences in the State[’s] care.” Id. at 190. Unfortunately, as Carter testified and the Court so finds, J.S.’s experience is “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. See id. 132-33, 190, 194.
f. H.V., J.V, and P.O. H.V. is a class representative for the General Class, the Licensed Foster Care Subclass, and the Foster Group Home Subclass. P.O. is a former class representative for the General Class and the Licensed Foster Care Subclass. 32 J.V. is not a Named Plaintiff, but his case files were included with, and linked to, the case files for H.V. and P.O. The Court relies on J.V.’s experience in the same way it relies on the evidence from former foster children Arce, Bentley, Jackson, Virgil, and Sharp. See supra p. 31. H.V., J.V., and P.O. are brothers who DFPS removed from their family’s care in Levelland in October 2004 following allegations of neglectful supervision, physical neglect, and drug abuse by both parents. (DX 120 at 1 RFP CPS 035047-48, DFPS009027864 (filed under seal)). Their case files constitute more than 60,000 pages. All three boys have the same biological mother, but P.O. has a different biological father. Their mother had a long history of drug abuse and it was suspected that H.V.’s and J.V.’s father was using and selling drugs. Neither parent had a permanent home. Id. at 1 RFP CPS 035048-49. P.O.’s father also had a history of drug abuse, criminal behavior, and incarceration. Id. at 1 RFP CPS 034327, 034997,
32 The Court holds that certain Named Plaintiffs are no longer adequate class representatives. See infra Section III.
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DFPS009026635. All three boys had lived off and on with their maternal aunt and grandmother. Id. at DFPS009027864. The brothers also had an older sister, who lived with the grandmother. Id. at DFPS009028131.
H.V. was five years old and in kindergarten when he entered care with DFPS. Id. at DFPS009027864. J.V. was three years old and in daycare, and P.O. was one year old when they entered the DFPS system. Id. at 1 RFP CPS 032017-18. All three boys’ initial level of care was Basic. 1 RFP CPS 148315, 1 RFP CPS 034595, 1 RFP CPS 033430. After removal from their parents, DFPS temporarily placed H.V. and J.V. in a Basic foster home and P.O. with his maternal aunt. Id. at DFPS009026217, DFPS009026134, DFPS009026453. After about a week, DFPS moved H.V. and J.V. to the aunt’s home as well, where they stayed for over a year. Id. at 1 RFP CPS 032553. While in that home, H.V. was described as a smart and active boy, outgoing, friendly, and mischievous, without any developmental delays or behavior problems. Id. at DFPS009027864. J.V. usually was observed playing with his brothers or watching television, and P.O. was described as active, giggling, happy, and playful. The children were in play therapy with a psychologist. Id. at 1 RFP CPS 032549.
In November 2005, allegations were made that the aunt tied J.V.’s hands behind his back and made him stand with his nose on the wall, spanked him, and put him in a black hole, later determined to be the basement. It also was alleged that the aunt hit J.V. in the head with a paddle, causing an injury that required stitches, and that he was not fed regularly and was frightened. Id. at 1 RFP CPS 032554, DFPS009028691, 009025491. The boys were removed from that home and placed with their grandmother. While there, J.V. alleged that the grandmother tied his hands with a jump rope and that another member of the household threatened him with a knife. Id. at DFPS009028691. An investigation resulted in a finding of
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RTB regarding the allegations against the aunt and UTD regarding the allegations against the grandmother. Id. at 1 RFP CPS 037378-79. In the meantime, the parents’ custody rights were terminated. DFPS obtained permanent managing conservatorship of H.V. and J.V. on February 10, 2006, and of P.O. on January 9, 2007. Id. at 1 RFP CPS 031078. After the investigation, DFPS moved all three boys to an emergency shelter at the Panhandle Assessment Center on February 17, 2006. J.V. and P.O. were very upset during the transport to the shelter and cursed, screamed, hit, and kicked at workers. Id. at DFPS009028690-91.33
The boys’ time with DFPS is notable for the ready use of psychotropic medication to control what often was age-appropriate behavior, or at the very least, behavior expected from children exposed to violence and upheaval in their young lives. In February 2006, when H.V. was still living with the grandmother, he was seen by a psychiatrist at the request of his caseworker. He was diagnosed with Adjustment Disorder, although it was noted that there was no need for medication at the time and no evidence of ADHD. Id. at 1 RFP CPS 036687-89. While H.V. was at the Panhandle Assessment Center, a psychological evaluation showed that his overall intellectual functioning was in the average range with high average performance skills and high average reading and spelling skills. He was capable of responding in a compliant, cheerful, and appropriately interactive manner, though he frequently responded in an argumentative, dominating, antagonistic, and aggressive manner toward his brothers and residents in the home. He was diagnosed with an adjustment disorder, with disturbance of mood and conduct and a severe history of abuse and neglect. His prognosis was “hopeful,” as long as
33 As early as December 6, 2004, P.O.’s paternal grandparents expressed an interest in adopting him, but inexplicably, their home was not considered as a potential placement until eight years later. Id. at DFPS009028104, DFPS009024714.
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he could be placed in a well-structured, nurturing, consistent, and enriching environment. Id. at 1 RFP CPS 036725-29. Nevertheless, within one month, H.V. was prescribed Risperdal, an antipsychotic medication. Id. at 1 RFP CPS 036698, 036701. In May 2006, H.V. was doing well and staff at PAC reported no problems. Id. at 1 RFP CPS 032566. He was continued on the Risperdal because of a tendency to be defiant and talk back. Id. at 1 RFP CPS 036701.
In January 2006, two months after making physical abuse outcry, five-year-old J.V. had his first of many visits to a psychiatrist to address behaviors of kicking, hitting, and defiance. He was prescribed Focalin for ADHD, although there is no record of an evaluation. His therapist recommended that J.V. see the psychiatrist. Id. at 1 RFP CPS 031868. At a March 2006 psychological evaluation, J.V. exhibited occasional impatience, demanding behaviors, emotional sensitivity and withdrawal. Id. at 1 RFP CPS 037195. He also struggled to listen and follow directions, and was fidgety and overactive, but was responsive to redirection. His overall intellectual functioning was in the average range. Id. at 1 RFP CPS 037193-99.
P.O. was moved to a therapeutic foster home run by PAC. Notes show that P.O., who had just turned three years old, had tantrums when asked to do something, interrupted adults when talking, used curse words, ignored adults when they talked to him, resisted taking naps and going to bed, and pouted, sulked, and whined when told it was time to clean up or go to bed. Id. at 1 RFP CPS 034589-90. In April 2006, P.O. was prescribed Albuterol for bronchitis. In June 2006, P.O. was taking Sudafed for reasons that are not clear in the record. Id. at 1 RFP CPS 034490, 034609. Both medications list nervousness, restlessness, and sleeplessness as side effects.34 Later in June, based on P.O.’s foster mother’s report that he was hyperactive,
34 See http://www.drugs.com/albuterol.html (last viewed on June 27, 2015); http://www.webmd.com/drugs/2/drug6573/sudafed/details/list-sideeffects (last viewed on June 27, 2015).
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aggressive, and had trouble sleeping, a psychiatrist prescribed Clonidine to help him sleep. There is no mention in the psychiatrist’s notes that P.O. was taking other medications at the time. Id. at 1 RFP CPS 034496. The next month the psychiatrist increased the Clonidine dosage. Id. at 1 RFP CPS 034506-07.
P.O. continued to have tantrums, hit other children over toys, resisted going to time-out, bit his nails, played in bed when he was supposed to be sleeping, whined, interrupted adults, played with his food, and argued, although he also had good days and behaved well at times. Id. at 1 RFP CPS 034624-66. In August 2006, P.O.’s foster mother requested an increase in his level of care from Basic to Moderate based on aggression and not wanting to take naps. Id. at DFPS009028702. However, he remained at a Basic level of care. Id. at 1 RFP CPS 146859. In September 2006, the psychiatrist added Focalin and Risperdal to P.O.’s medication regimen. Id. at 1 RFP CPS 034508-09. P.O. had not undergone a psychological evaluation or intellectual assessment. Id. at 1 RFP CPS 034334. The next month, P.O. began to have occurrences of enuresis (involuntary urination) and encopresis (involuntary defecation). Id. at 1 RFP CPS 034337. Nothing in the record indicates that any of P.O.’s caregivers or health care providers questioned the possible link between his new medications and his urinary and bowel troubles. These conditions plagued him for years.
P.O. underwent a psychological evaluation on October 10, 2006, where the psychologist noted that the amount of Clonidine he was taking had been reduced. P.O. behaved well during the assessment. His intellectual functioning fell within the average range and his motor behavior was slightly excessive. Based on reports from his foster mother, P.O. was defiant, destructive, disobedient, aggressive, resistant to toilet training, and unresponsiveness to punishment. He was diagnosed with Oppositional Defiant Disorder, ADHD, and Relational Problems (not otherwise
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specified). Id. at 1 RFP CPS 034352-62. The psychologist recommended that P.O. continue placement in a therapeutic environment that provided adequate stability, consistency, and emotional responsiveness. Id. at 1 RFP CPS 034574.
In October 2006, P.O.’s caseworker submitted a request to raise his level of care to Moderate, but he remained at Basic. Id. at 1 RFP CPS 033428. In March 2007, P.O. was doing well, was cooperative and pleasant. He was easy to redirect and well behaved. The psychiatrist reduced the amount of Clonidine he was taking. Id. at 1 RFP CPS 034535. In May 2007, his foster mother said she would like him to be taken off his medication at some point. Id. at DFPS009028633. P.O. had a difficult month in June 2007, exposed himself to another boy and tried to urinate on him, and talked back to his caregivers. Id. at 1 RFP CPS 034877. In December 2007, his therapist remarked that P.O.’s social skills appeared improved and he was calm and compliant. His therapy was reduced to once per month. Id. at 1 RFP CPS 034587. He was four years old.
In April 2008, P.O.’s therapist said his behavior had improved and he was showing more compliance and less aggression. Id. at 1 RFP CPS 037734. After the boys were placed in the adoption unit, P.O. was moved to a different foster home, in Lubbock, so that he would be in the same city as H.V. and J.V.. Id. at DFPS009028658659. P.O. did well in that home. In October 2008, P.O.’s foster mother said he never got in trouble at home or school. He was taking Focalin and Risperdal. Id. at 1 RFP CPS 031816.
In the meantime, in May 2006, H.V. and J.V. were moved to a GRO in Amarillo. After the move, H.V. began acting out violently and was rebellious toward his caregivers, according to his psychiatrist, who increased the amount of Risperdal H.V. was taking. The psychiatrist noted no side effects from the Risperdal, even though listed side effects include aggressive behavior
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and agitation. Id. at 1 RFP CPS 036703. Another listed side effect is enuresis; H.V. had begun to wet the bed at night. Id. at 1 RFP CPS 038078.
In May 2006, J.V. was described as shy, quiet, fearful, and aggressive, although he did not display the aggression that H.V. displayed. Id. at 1 RFP CPS 036932, 036957. His therapist noted that nurturance and safety were J.V.’s biggest needs. Id. at 1 RFP CPS 037206. In September 2006, J.V.’s therapist stated that he had become more emotionally defiant with his house parents, cursing at them and trying to provoke them. The therapist also said it was important for staff to evaluate J.V.’s behavior in light of his medications. Id. at 1 RFP CPS 037211. As of November 2006, J.V., five years old and in kindergarten, was taking Strattera,35 Focalin, and Risperdal. Id. at 1 RFP CPS 036946. His level of care rose to Moderate at the GRO’s request. Id. at 1 RFP CPS 033430. GRO staff described H.V. and J.V. as a handful, but said that everyone who met the boys enjoyed them and that even though they were active and could be a problem, they were pleasant and enjoyable to be around. Id. at 1 RFP CPS 032579.
There was discussion about allowing the aunt and grandmother to visit the boys. J.V. indicated that he wanted to see the aunt but also was afraid of her. Id. at 1 RFP CPS 037209. After J.V. had a visit with the aunt, he complained of a stomachache and was withdrawn and depressed. He chewed his nails, which his therapist attributed to anxiety or a side effect of his stimulant medication. Id. at 1 RFP CPS 037217. J.V.’s behavior began to deteriorate after the aunt and grandmother started visiting him twice per month. He started having wetting and soiling accidents, became distraught, was emotionally out of control and explosive. Id. at 1 RFP
35 Strattera is used to treat AHDH in children. Side effects include confusion, hallucinations, unusual thoughts or behavior, feeling aggressive or hostile, painful or difficult urination, drowsiness, and insomnia. http://www.drugs.com/strattera.html (last viewed July 1, 2015).
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CPS 037220. By January 2007, J.V. was very aggressive with other children, hitting, kicking, and biting them. He responded poorly to timeouts and loss of privileges. His therapist said J.V. needed as much individual parenting as possible and the houseparent structure at his GRO was not meeting his needs. Id. at 1 RFP CPS 037224.
In January 2007, the GRO requested that J.V. be moved because of his difficult behavior. He began to improve, but his behavior dramatically regressed after the visits from his aunt and grandmother, and he was completely out of control at home and at school. He was anxious, angry, and explosive, and acted out in a sexual manner. Since starting a drug for enuresis and a stool softener medication, J.V. stopped wetting himself. Id. at 1 RFP CPS 033430-31. On March 13, 2007, J.V. spontaneously said he did not want to have more visits with the aunt or grandmother. Id. at 1 RFP CPS 037234. As of March 26, 2007, Trileptal and Clonidine were added to J.V.’s medication regimen. Id. at 1 RFP CPS 037011
H.V. and J.V. stayed at the GRO until March 2007, when J.V. was moved to a therapeutic foster home. Id. at DFPS009028630. Following the move, J.V. became very disruptive at school. Id. at 1 RFP CPS 037094. J.V. continued to see his aunt and grandmother; his therapist noted it was unclear whether the visits were helping or hurting him. Id. at 1 RFP CPS 037238. In a letter to DFPS dated May 24, 2007, the therapist remarked that the temporary placements of J.V. and H.V. looked more and more destructive. He also expressed frustration that home studies had not been done on the aunt and grandmother, since the boys had at least some sort of connection with them. He added that J.V. was “regressing by the bucketfuls” and “showing more and more attachment dysfunction [with] each placement.” Id. at 1 RFP CPS 037240. The therapist also noted that J.V. “needs a mother and special treatment” and that he
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“cannot be medicated into health, only managed chemically.” Id. The therapist asked DFPS, “What do you need to establish a permanency plan?”; it is unclear if he received a response. Id.
H.V. was moved to the therapeutic foster home where J.V. was living in April 2007. Id. at DFPS009028632. H.V. did well in the home, but his foster parents commented that he needed to handle himself better and not act so aggressively. Id. at DFPS009028634. H.V.’s level of care was raised to Moderate in April 2007. Id. at 1 RFP CPS 036006. In June 2007, at eightyears-old, H.V. was taking Invega,36 Vyvanse, and Clonidine, though it is not clear when those medications were prescribed or when Risperdal was discontinued. Id. at 1 RFP CPS 031073. That same month, the foster parents gave notice that they could no longer care for H.V. and J.V., in part because of their disruptive behavior. H.V. and J.V. were then moved into a different therapeutic foster home managed by the Bair Foundation in Lubbock. Id. at DFPS00902863537. After H.V. and J.V. were moved, the foster mother said she thought J.V. was over-medicated because he was very quiet and had trouble listening and focusing. Id. at 1 RFP CPS 037241. A psychological assessment indicated that J.V.’s overall intellectual functioning was in the low average range and his prognosis was “guarded.” Id. at 1 RFP CPS 033831.
Following a visit to a psychiatrist in July 2007, J.V.’s medications were changed to Invega, Vyvanse, and Clonidine. He also took Desmopresson Acetate for bedwetting. Id. at 1 RFP CPS 033939. In August 2007, he was doing well and his caseworker reported that his eyes were brighter since his medications had been reduced. Id. at DFPS009028642. In October 2007, J.V. was still having a difficult time following directions at school and at home, talking back to
36 Invega is an antipsychotic medication used to treat schizophrenia in adults and teenagers who are at least 12 years old. Common side effects include uncontrolled muscle movements, drowsiness, and agitation. http://www.drugs.com/invega.html (last viewed June 30, 2015).
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his teachers and foster parents. He threw tantrums lasting up to 20 minutes, though he was making progress in not wetting the bed. Id. at 1 RFP CPS 037048.
H.V. did not like the new placement and accused the foster parents of being racist. He resented moving and blamed J.V. for the move. It was noted that H.V. needed a stable environment where he knew someone loved him unconditionally, and that many of H.V.’s negative behaviors were attributable to being upset at changing placements so often. Id. at DFPS009028643-44, 009027904. In October 2007, H.V.’s foster parents called the police because H.V. became angry and threw chairs against a glass door. His foster mother wanted to have H.V. moved but keep J.V., who was doing well in the home. Id. at DFPS009028645.
H.V. and J.V. lived in that home for approximately 18 months until December 23, 2008 when they were moved to another therapeutic foster home (also managed by the Bair Foundation) in Muleshoe. P.O., who was still in his earlier foster home, was moved into this home to be reunited with his brothers. The decision to move H.V. was made because his foster parents had given notice that they could no longer care for him. J.V. and P.O. were moved to the same placement so that the brothers could be together. Id. at DFPS009028543.
P.O.’s previous foster parents were extremely distressed that P.O. was moved because he was doing very well in their home and because he was moved during the holidays. Id. at 1 RFP CPS 035257. P.O.’s behavior deteriorated rapidly after the move. He acted out, broke other children’s toys, stepped on their fingers, screamed, threw tantrums, pinched his own skin to the point of bleeding, urinated on himself, and constantly fought with his brothers. Id. at 1 RFP CPS 031822, 032097. On March 18, 2009, P.O.’s foster mother noted that he “got his meds regulated for behavior.” Id. at 1 RFP CPS 033545. On March 27, 2009, P.O.’s level of care was still
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Basic and he was taking Focalin and Clonidine. Despite his behavior at home, he was doing well in kindergarten. Id. at 1 RFP CPS 031077.
H.V. and J.V. also struggled after the move. H.V. displayed violent behavior with kicking, screaming and not following directions. Id. at 1 RFP CPS 031822. J.V. had bonded with his previous foster mother, but in the new placement talked back, was aggressive, struggled to follow directions, and wet the bed every night. Id. at 1 RFP CPS 033929. In March 2009, H.V. was taking Clonidine and Abilify. He was described as bright, manipulative, and quick to anger. Id. at 1 RFP CPS 031077. In April 2009, a psychologist evaluated H.V. and diagnosed him with Disruptive Behavior Disorder. He had symptoms of ADHD and Oppositional Defiant Disorder, but there was insufficient evidence to support a diagnosis of those disorders. His prognosis was “fair.” There were no contraindications to adoption, but it was recommended that H.V. be adopted with his brothers and that caregivers should assume that any adoption would not go smoothly for the first six months. Id. at 1 RFP CPS 036789-99. H.V. continued to have emotional and violent outbursts and was overheard talking in a sexually inappropriate way about the household dog. Id. at 1 RFP CPS 038579, 031851. However, he also appeared to be trying to control his temper and behave better. Id. at 1 RFP CPS 031858. Though, in June 2010, H.V. started a fire in his grandmother’s garage during a visit. Id. at 1 RFP CPS 036843.
In April 2009, J.V.’s foster mother reported that when J.V. was angry he cursed and yelled and threw tantrums, although they did not last very long. He often did not follow the house rules and could be argumentative and oppositional, lied, and occasionally stole things. She described him as hyperactive and impulsive. Testing showed J.V. in the average range of intelligence, functioning near age-level expectations in spelling, math, and reading. J.V. reported some auditory hallucinations and said he frequently heard a voice talking to him at school but
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could not understand what it said. J.V. was diagnosed with ADHD, but was ruled out for psychotic symptoms. The therapist said that any potential adoptive parents should be made aware of J.V.’s behavioral difficulties and should have an opportunity to form a relationship with J.V. and his brothers prior to placement. Id. at 1 RFP CPS 034109-18.
On September 1, 2009, a safety plan was implemented following an incident that occurred on August 28, 2009. An incident report was not located in the record, although it may be related to a conversation the foster mother overheard between J.V. and H.V., where J.V. said he was going to urinate in the dog’s mouth. The safety plan required that H.V. and J.V. not be allowed around pets without adult supervision, that H.V. and J.V. have a responsible adult present when they were playing outside, and that their foster parents report any inappropriate touching or talking to the CPA immediately. Id. at 1 RFP CPS 033527, DFPS009028565.
In February 2010, J.V.’s level of care was Specialized. Id. at 1 RFP CPS 033829. He was having extreme tantrums when he was asked to do anything, although he was not having behavior problems at school. He continued to urinate on himself and wet the bed at night. Id. at 1 RFP CPS 033833. Due to his aggressive behavior, J.V. was to be closely supervised by adults during waking hours. Id. at 1 RFP CPS 033842. In June 2010, J.V. continued to have difficulty controlling his bowels and would hide his soiled clothes. Id. at 1 RFP CPS 034077. In July 2010, J.V. said he had reservations about being adopted. Id. at 1 RFP CPS 034144. Not even two weeks later, despite all the behaviors noted above, CPS staff stated in an adoption readiness summary that J.V. was ready for adoption, although there might be an adjustment period and time of behavioral issues once he was placed with the family. Id. at 1 RFP CPS 035792.
P.O. underwent a psychological evaluation on April 13, 2009. His foster mother described disruptive behavior and said that he was hyperactive and impulsive. He had average
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intellectual functioning and was functioning consistently at a Kindergarten level in reading, spelling and arithmetic. He was diagnosed with ADHD and Adjustment Disorder with disturbance of conduct. His prognosis was “fair” and it was recommended that every effort be made to keep P.O. and his brothers together. It was also recommended that any potential adoptive family be made aware of his behavior difficulties and be allowed to form a relationship prior to adoption. Id. at 1 RFP CPS 037564.
P.O. continued with his disruptive behavior and, in September 2009, touched a pet in an inappropriate way. He was doing well at school but was confrontational and aggressive at home. Id. at 1 RFP CPS 037555. In October 2009, P.O. touched another boy inappropriately. When his foster mother talked to him about it, P.O. said that in his former foster home he used to touch all the little girls in their private areas. The foster mother said she had monitors in the bedrooms and was “pretty certain” there was no sexual acting out going on between the boys. Id. at DFPS009028569-70. P.O.’s level of care was Moderate as of October 1, 2009. Id. at DFPS009028474. As of April 2010, P.O. was taking Focalin and Clonidine. His foster father reported P.O. was doing well in school but would get in trouble for not taking schoolwork home. When he did take it home, he “[ate] it on a daily basis.” He had trouble sleeping but did better with medication. He cried frequently and fidgeted when he was sent to time-out. He regularly lied and stole. He angered easily, used foul language, screamed, hit, kicked, bit, destroyed property, and was cruel to the family dog. He was seven years old and in the first grade. Id. at 1 RFP CPS 036453-56. Despite his behavior, P.O. functioned at age-level expectation in school and appeared to possess adequate resources for performing well academically. He underwent a psychological evaluation in April 2010, still diagnosed with ADHD and Adjustment Disorder with disturbance of conduct. His prognosis was “fair” and the psychologist noted that his
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behaviors worsened since being placed with his brothers, but continued to recommend that every effort be made to keep the brothers together. Id. at 1 RFP CPS 036457-61.
In May 2010, a visitor to the foster home reported to CPS that P.O. told her that an older boy, who shared a room with P.O. and his brothers, hurt P.O.’s “wee wee.” The visitor also reported that the foster mother was verbally abusive to a girl in the house and would not let any of the children talk to visitors. A CPS investigator interviewed all the children and the foster parents, and they all denied that any inappropriate touching or other abuse. P.O. was examined by a doctor who saw no evidence of sexual abuse. The CPS investigator Ruled Out sexual abuse, but the older boy was moved to a room by himself. Id. at DFPS009030587-601.
On August 30, 2010, all three boys were placed in a pre-adoptive home in Blanco. Id. at 1 RFP CPS 038603. At that time, H.V. was 11, J.V. was 9, and P.O. was 7. This adoption was doomed from its inception. The adoptive parents wanted to adopt two children under the age of eight, and preferably under five. They wanted to adopt girls but were open to adopting boys. They wanted to adopt children needing Basic-level care; H.V. and P.O. were at Moderate levels of care and J.V.’s level of care was Specialized. Id. at DFPS009028610. The parents also did not want to adopt children with severe emotional or mental issues. Id. at 1 RFP CPS 035735, 035746. The person who prepared the home study stated that children who had had severe violent behaviors, sexual acting out behaviors, animal cruelty, or fire setting—all behaviors that the boys had exhibited—should not be referred to this family. Id. at 1 RFP CPS 035735. At the adoption staffing, all of the DFPS staff members were concerned about letting the family adopt the boys. The concerns included the family’s preference for girls and children under the age of eight; an incident between the father striking an adopted daughter who later became estranged from the family; that all three boys would have to share a room; that the family had dogs; and
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that they kept guns in the home. Id. at 1 RFP CPS 035876-88. Nonetheless, the decision was made to place the boys in that home.
The first pre-placement visit went well. During the second visit, though, J.V. had meltdowns at bedtime and in the morning when getting up. He appeared to want one-on-one attention. H.V. behaved well and P.O. had some minor episodes. Id. at 1 RFP CPS 032723. On the first day they were actually placed in the home, J.V. ran off but came back. He said he wanted to live with his mother and father and that H.V. was mean to him. J.V. stole some items from the foster parents’ son. Id. at 1 RFP CPS 032724.
The adoption disrupted in stages. One of the first things the foster parents did was give the boys new first names. In the first few days of the adoption, J.V. was having anger outbursts and destroying property. Id. at 1 RFP CPS 034128. Six days after being placed in the home, J.V. was admitted for acute care at a mental health treatment center in San Antonio for homicidal ideation and physical aggression. At the foster parents’ request, the staff stopped all of J.V.’s medications and he was released to their home five days later. Id. at 1 RFP CPS 034133. J.V. continued with outpatient therapy, but was placed in an emergency shelter a few days later after threatening to harm his foster mother; he never returned to that home. Id. at 1 RFP CPS 034241. For J.V., the adoption was over two weeks after it began.
H.V. was slow to bond with the foster parents but did appear to bond with their biological son. The parents began tapering him off his medications soon after he arrived in the home and said they did not notice any change in his behavior. He did well in school and began making friends but he threw tantrums at home and screamed when corrected or told to do chores. Id. at 1 RFP CPS 032702. H.V. blamed the foster parents for the removal of J.V. from the home and his behavior worsened after J.V. was removed. Id. at 1 RFP CPS 032711. H.V. also began bullying
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their biological son. On November 12, 2010, H.V. was removed from the home and placed in a therapeutic foster home in San Antonio. He appeared sad but not distressed about being removed from the pre-adoptive placement. Id. at DFPS009028610-12.
P.O. resisted attaching to the foster parents and did not let his guard down. He made some progress at home, but did poorly in school. He had to be monitored around their pets because he could be cruel to them. Id. at 1 RFP CPS 032710. The foster parents took him off his medications. Id. at 1 RFP CPS 038655. P.O. was removed from the home along with H.V. and placed in the same therapeutic foster home on the same day H.V. was removed. P.O. was sad about being removed from the home and blamed H.V. Id. at DFPS009028612.
In addition to J.V. entering a mental health care facility following the disrupted adoption, H.V. and P.O. also showed signs of intense mental distress over the next several months. H.V.’s foster mother in San Antonio described him as “a child who is lost, had a lot of bravado to cover his fears and is protective, yet disdainful of his little brother.” He had a bad temper and responded poorly every time he was disciplined. He was aggressive, threatened other boys, did not sleep well, argued, talked about sexual things, did not want to shower or brush his teeth, and arrived with a stolen cell phone. He was stealing from the other children and had no boundaries. On November 19, 2010, he was prescribed Risperdal and Concerta. The next day, H.V.’s “hands were flip flopping around, his body was contorting into all kinds of poses and he simply could not sit still.” That behavior continued for more than three hours. Two weeks after being placed in the foster home, H.V. was lying openly, talking about his sexual past, threatening older, bigger boys, and having tantrums every other day. Id. at 1 RFP CPS 038658-59. In December 2010, H.V. had trouble sleeping and was very moody and provoking others in the home. The Risperdal
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was discontinued and he was prescribed Seroquel. Id. at 1 RFP CPS 036888. H.V.’s level of care was increased to Specialized in December 2010. Id. at DFPS009028482.
A week after the disrupted adoption, P.O. became aggressive at school, disrupting the classroom and threatening other children, and made suicidal statements. When the counselor walked him to her office, he twice tried to trip her. While in the assistant principal’s office he jumped off a desk approximately 25 times, threw a chair, pulled off baseboards, and banged on a windowsill. He threatened to kill himself and told the counselor he would kill her too. His foster mother picked him up from school and took him to a psychiatric hospital the next day for evaluation. Id. at DFPS009028610, 1 RFP CPS 037973. While at the psychiatric hospital, P.O. was prescribed Risperdal and Vyvanse. Id. at 1 RFP CPS 037579.
By December 17, 2010, all three boys had been moved to a GRO in Lubbock. H.V. shared a cottage with J.V., and P.O. lived in another cottage on the campus. Id. at DFPS009028614. On January 15, 2011, records show H.V. was taking Abilify and Clonidine. Id. at 1 RFP CPS 038372. On January 18, 2011, H.V. had a very violent episode after becoming angry with another boy. H.V. went throughout the house turning over furniture, breaking pictures and window blinds, throwing chairs, and threatening to harm the other boy. The house parents called the sheriff, who took H.V. into custody. Id. at 1 RFP CPS 038704-05.
At a court hearing on January 6, 2011, it was determined that H.V. would be placed with his grandmother and he was placed there on January 24, 2011. Id. at 1 RFP CPS 032274. However, that placement ended on May 31, 2011 when H.V. was moved to an emergency shelter at a GRO in Lubbock “due to his behaviors.” Id. at DFPS009027953. Notes indicate that there was a lot of conflict between H.V. and his sister, who had lived with the grandmother for years.
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Id. at 1 RFP CPS 036627. H.V.’s level of care was decreased to Basic on May 31, 2011. Id. at 1 RFP CPS 036005. H.V. was prescribed Intuniv in July 2011. Id. at DFPS009028501-02.
J.V. did well at the GRO and, in January 2011, staff generally had no issues with his behavior. See id. at 1 RFP CPS 032277. His level of care was reduced to Moderate in April 2011. Id. at 1 RFP CPS 032282, DFPS009028482. In an August 2011 psychological evaluation, J.V. was noted to anger easily and throw tantrums when upset, but many of his behavior difficulties had improved. Id. at 1 RFP CPS 036175. The psychologist did not find significant support for J.V.’s previous diagnosis of ADHD, but because he was taking psychotropic medication, it was assumed that the ADHD was present but responding favorably to medication. Id. at 1 RFP CPS 036174-75, 036178-79.
In January 2011, P.O. was enjoying the GRO and, other than a tantrum the first weekend he was there, his behavior had been appropriate. Id. at 1 RFP CPS 037465. His level of care was Moderate. Id. at DFPS009028474. He was described as obedient, helpful, and sweetnatured. Id. at 1 RFP CPS 037466. He was taking Clonidine and Focalin. Id. at 1 RFP CPS 037469. P.O. underwent another psychological evaluation on August 30, 2011. His medications were changed to Vyvanse and Risperdal. Staff reported that P.O. angered easily, particularly when asked to do something he did not want to do. Although he occasionally screamed and threw tantrums, he was more likely to be quiet when angry, and had told staff in a quiet voice that he was going to kill them. When he was not upset or angry, he was sweet and would express remorse for his actions. He did well on his medication regimen. The psychologist believed that P.O. had failed to develop an appropriate attachment relationship to any caregiver due to the long history of instability in his placements. He was diagnosed with ADHD, although the psychologist said he did not find support for the diagnosis on the day of the examination and
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assumed that P.O.’s medication was controlling the symptoms. His prognosis was “fair to good” and it was recommended that he be placed for adoption with J.V. Id. at 1 RFP CPS 036437-49.
After the emergency shelter, H.V. returned to the GRO with his brothers and stayed there for four months, until September 27, 2011, at which point he was moved to a therapeutic foster group home. (Id. at DFPS009028503-04; PX 2015 at 90; D.E. 215 at 6). On October 14, 2011, P.O. and J.V. were placed in a pre-adoptive placement in Wichita Falls with a single woman who had worked for CPS for many years. J.V. initially did well in the placement, but P.O. had problems from the beginning, and was defiant and not focusing in school. (DX 120 at 1 RFP CPS 032735 (filed under seal)). J.V. was sad because he was never going to live with his grandmother. Id. at 1 RFP CPS 032736-37. Six weeks after placement, the adoption disrupted when the therapist told the adoptive mother that neither J.V. nor P.O. were ready for adoption. P.O. had been urinating in the trashcan, wiping feces in the bathroom, and refusing to do his homework. When the adoptive mother tried to redirect him, he was defiant. Id. at 1 RFP CPS 032738. In December 2011, P.O. was moved to the therapeutic foster group home where H.V. was staying. P.O. was happy to see H.V., but sad about leaving the adoptive home. Id. at 1 RFP CPS 032323. J.V. was taken to the Texas Boy’s Ranch and cried for half an hour because he had to leave the adoptive home. J.V. told his caseworker that he was moved because he could not behave and could not stop stealing. Id. at 1 RFP CPS 032323.
Following this second disrupted adoption, J.V. acted out in increasingly alarming and violent ways. In February 2012, he was suspended from regular classes after he held a girl down and told her he was going to rape her. He refused to follow directions or go to bed on time at home. Id. at DFPS009028524. J.V. was discovered looking up “rape” and pornography on the Internet and was suspected of “huffing” paint, although he denied it. Id. at 1 RFP CPS 036161.
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On March 6, 2012, J.V. told his caseworker that he did not know why he was acting out, but then said that he was acting out so that he would be moved to live with H.V. He also said that he wanted to go back to his adoptive placement and asked why no one asked him about moving before he was moved. Id. at DFPS009028527. A request to raise J.V.’s level of care to Specialized was submitted on March 7, 2012. Id. at 1 RFP CPS 031085.
J.V. was admitted to the Canyon Lakes Day Treatment Program on March 19, 2012 because of escalated behaviors and the threat of rape he made to the girl at school. Id. at 1 RFP CPS 036060. On March 29, 2012, one of his therapists said J.V. might be acting out because he wanted to return to his adoptive home and recommended his caseworker contact the adoptive mother to ask about the possibility of adopting only J.V. Id. at 1 RFP CPS 032334. There is no indication in the record that the adoptive mother was contacted about this possibility.
J.V. returned to the Texas Boy’s Ranch and, in May 2012, a psychological assessment showed that he was still having behavior problems, the previous weekend stating he wanted to kill himself and refused to eat, play, or take his medication. He was taking Vyvanse, Clonidine, and Lexapro.37 He was still and focused during the assessment and produced drawings that were well done and had significant detail. He was tearful and talked about being in trouble and feeling he would not be able to “start over.” J.V. had significant emotional distress with symptoms suggesting a major depressive disorder. The depression was believed to be a greater factor in his difficult behavior than the ADHD. There were indications of depression and sadness related to his experiences of abuse, neglect, loss or abandonment, and repeated placement changes and
37 Lexapro is an antidepressant used to treat anxiety in adult and major depressive disorder in adults and adolescents who are at least 12 years old. Side effects include racing thoughts, unusual risk-taking behavior, and feelings of extreme happiness or sadness. http://www.drugs.com/lexapro.html (last viewed July 7, 2015).
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failed adoptions. According to the assessment, his acting out and sexualized behaviors may have been attempts to get his needs met, using fantasy and seeking out ways of demonstrating strength and power. It was believed he met the special education criteria in the category of emotional disturbance due to sad mood, difficulty establishing and maintaining relationships, and inappropriate behaviors and feelings under normal circumstances. Id. at RFP CPS 064556.
In May and June 2012, J.V. did better, but his level of care was raised to Specialized in September 2012. Id. at DFPS009028411. In November 2012, J.V. did much better. His foster mother commented that he would be an amazing only child. Id. at DFPS009028420. In March 2013, J.V. was succeeding at home and at school. His house parent did not think he had been stealing and he had asked for an air freshener for his room because it smelled like urine. It was considered a big step that he had admitted urinating in the closet. Id. at DFPS009028451.
In December 2011, in his first week in the group home with H.V., P.O. repeated episodes of encopresis and did not shower. Id. at 1 RFP CPS 032321. By May 2012, P.O. was doing much better and had developed a bond with his foster parents. He made great improvement with his tantrums and was able to control his anger. He was taking Vyvanse, Risperdal, and Intuniv. Id. at 1 RFP CPS 036468. P.O. received court-ordered neuropsychological evaluations in May and June 2012 with an educational psychologist. P.O. was nine years old and in third grade. P.O. had reached all developmental milestones, but continued to struggle with encopresis and enuresis. His foster mother was most concerned about his lying and stealing. His behavior at school had improved. He had no learning disabilities, but did have some areas of weakness that interfered with learning to an extent. P.O. was described as a very complex child with many negative experiences in his young life. The psychologist said there was no doubt that frequent
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placement changes interfered with his emotional and psychological health. He had learned to not become too attached to people. His prognosis was “guarded.” Id. at 1 RFP CPS 036411-25.
P.O. stayed at that foster group home until he was placed for adoption in the home of his paternal grandparents in December 2012. Id. at 1 RFP CPS 147612. It is unclear why placement was not sought with the grandparents when P.O. first entered the DFPS system, considering that the grandparents inquired about adopting P.O. as early as December 2004 when P.O. was not yet two years old. Id. at DFPS009028101-04. Incredibly, P.O.’s grandparents were not notified until late 2012 that P.O. was in the State’s PMC and available for adoption. See id. at 1 RFP CPS 153525. They had no contact from P.O. (or DFPS), and had been under the impression that he was living with his aunt ever since being removed from his home. Id. Placing P.O. with his grandparents eight years earlier might have saved P.O. years of trauma. Instead, he suffered through ten placement changes and two failed adoptions. Id. at 1 RFP CPS 146624. He also attended seven different elementary schools between kindergarten and third grade, where, despite the upheaval, his school performance was overall “good.” See id. at 1 RFP CPS 035991. He additionally had eight primary and secondary caseworkers. See id. at DFPS009027500, 009028630-97, 009028711-94.
H.V.’s behavior improved in his more recent years in foster care. He struggled with responding respectfully to his foster mother, but did respond to redirection by his foster father. He was excited when P.O. moved to the foster group home. In December 2011, H.V. was taking Seroquel, Intuniv, and Concerta. Id. at 1 RFP CPS 036582. In June 2012, P.O. moved into H.V.’s room at the group home, which seemed to go well. Id. at 1 RFP CPS 032352. H.V. was sad when P.O. was placed in his grandparents’ house and said at that time that he wanted to be adopted with J.V. Id. at DFPS009028428. In February 2013, CPS decided to place H.V. and
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J.V. separately for adoption. H.V. was angry and sad about the decision, but acknowledged that it might be for the best. His behavior improved and he was no longer arguing with his foster parents. Id. at DFPS009028429-32. By June 2014, a psychological assessment of H.V. showed that he made tremendous progress. He no longer angered easily and did not typically exhibit aggressive or destructive behaviors. He was diagnosed with Adjustment Disorder; it was noted that while he showed some characteristics of ADHD, there was insufficient evidence to support a diagnosis. His prognosis was “good.” Id. at DFPS009022130. As of August 2014, H.V. was not taking any medications. Id. at DFPS009022099-100. Also in August 2014, H.V. was moved to a foster home that was intended to be a permanent placement. H.V. was friends with the family’s biological son. Id. at DFPS009028196, 009022075. In his ten years in DFPS care, H.V. experienced 13 placements and one failed adoption. See id. at 1 RFP CPS 146607. He attended 11 schools in nine years, including five different schools while in the sixth grade, yet remarkably managed to perform (sometimes exceptionally) well academically. See id. at 1 RFP CPS 146634, DFPS00902210. He had eight primary and secondary caseworkers. See id. at DFPS009028711-94.
A CPS placement review in J.V.’s record indicates that during his visit to a psychologist in January 2014, he made a sexual abuse outcry. Id. at DFPS009022102. The psychologist’s assessment from that visit was not in the record and no other mentions of sexual abuse were found. There is also no evidence in the record as to whether those allegations were investigated. After that outcry, J.V., who had previously demonstrated troubling and inappropriate sexualized behavior, remained in multiple-child facilities. As of August 2014, J.V. was living at the same GRO, although there is a note that a potential adoptive family had been selected for him. Id. at DFPS009022101. As of the end of the trial record, J.V. had experienced at least 13 placements
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and two failed adoptions during his time in care. Id. at 1 RFP CPS 146616. J.V. changed schools nine times in nine years, but generally did well academically. See id. at 1 RFP CPS 14663. J.V. has had nine primary and secondary caseworkers. See id. at DFPS009028711-94, 009026196. Unfortunately, as Carter testified and the Court so finds, H.V.’s and P.O’s experiences are “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. (See D.E. 326 at 132-33, 194).
g. Z.H. Z.H. is a class representative for the General Class and the Licensed Foster Care Subclass. At the time of trial, Z.H. was 14 years old. He entered foster care in February 2009 after being abused and neglected by his mother, who had left him malnourished and was insensitive to his medical and psychiatric needs. (DX 120 at DFPS #33580 (filed under seal)). DFPS investigated multiple reports of abuse and neglect regarding Z.H. between 2003 and 2009. See id. at DFPS #32996-97. In 2007, DFPS investigated a report of sexual abuse of Z.H. and his younger brother. Id. at DFPS #37143, #32996. At that time, two unrelated men, both sex offenders with backgrounds in prostitution who had allegedly stated that they “liked little boys,” were living with Z.H.’s mother. Id. Following the investigation, DFPS found RTB that Z.H. was sexually abused by one of the men. Id. DFPS, though, Ruled Out neglectful supervision by Z.H.’s mother because she “denied knowing [the] criminal history of her homeless friends.” Id. DFPS thus did not remove Z.H. at that time. There is no indication in Z.H.’s 38,000 pages of case files that he received therapy for that sexual abuse incident once he entered foster care. Between 2007 and 2008, Z.H. was psychiatrically hospitalized on four occasions and had been diagnosed with several significant psychological disorders. Id. Z.H. was removed from his mother’s custody in 2009, at the age of eight. The removal was precipitated by a hospitalization
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at the end of 2008, during which it was determined that he was malnourished and that his mother was not administering his required medication. Id. at DFPS #33580. Z.H.’s two brothers (five years old and ten months old, respectively) were both removed at that time as well. Id. at DFPS #32391, #33059. Shortly thereafter, the middle brother was placed with his biological father while the youngest brother was placed with a foster family. Id. at 33093. Z.H. was placed in an emergency shelter.
Over his six years in care, Z.H. was moved at least nine times, spending time in RTCs, therapeutic foster family and group homes, emergency shelters, and psychiatric hospitals. See id. at DFPS009116244-51. For most of his time in care, Z.H. was more than 100 miles from his home county, which made sibling visits difficult. His very first placement, in February 2009, was in a GRO emergency shelter, 60 miles from his home county. Id. at DFPS #32998. Z.H. cycled through several more placements until he was eventually, in June 2009, placed in an RTC 150 miles from his home county. See id. at DFPS #33187-202, #33244, #33580, DFPS009116244-47. In addition, many of Z.H.’s placements were clearly inappropriate, certain to fail from the outset. For example, despite his violent outbursts, violence toward himself, and history of sexual and physical abuse, Z.H. was placed in at least two therapeutic foster family and foster group homes with other foster children. See id. at DFPS009116749. Despite Z.H.’s history of sexual abuse, he was never placed in a single-child home as he should have been according to Defendants’ and Plaintiffs’ experts. (See D.E. 328 at 161; D.E. 329 at 161; D.E. 303 at 8).
Z.H. mainly lived in RTCs where he was heavily medicated. See, e.g., id. at DFPS #33588-89, #37320-34, DFPS009119337, 009119380. He was once admitted to a hospital because he “could not function due to being over medicated.” Id. at DFPS #37282. Although
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Z.H. made some progress in his first RTC, he was moved after less than a year, partly because he was being overmedicated and partly because the RTC could not meet his needs. The next RTC was approximately 300 miles from his home county. See id. at DFPS009116247-48, 009116745. Z.H. remained at that RTC for nearly three years, again making some progress, until he was moved to another RTC, primarily to be closer to his home county. He remained there for approximately one year. See id. at DFPS009116745. In June 2014, at the age of 14, he was moved into a kinship placement in his home county. Since then, he has had contact with his middle sibling, but not his youngest sibling, who was adopted out of care in May 2011. His initial level of care was Specialized, although it was increased to Intense after four and a half months in care. See id. at DFPS009116744-45. Z.H. fluctuated mostly between Specialized and Intense throughout his time in care. See id.
Z.H.’s first psychiatric evaluation in care, in March 2009, contained diagnoses of PTSD, Mood Disorder, ADHD, and Reactive Attachment Disorder. Id. at DFPS #37147. The evaluating psychologist noted that Z.H. was a victim of physical and sexual abuse. Id. Two of the sentences that Z.H. completed during that evaluation were: “The thing I do worst is ‘not getting hurt,’” and, “The worst person who ever lived was ‘my caseworker.’” Id. at DFPS #37146. The psychologist stated that Z.H. “needs to reside in a secure stable living environment,” and to be “enrolled and remain in the same school” throughout the school year in order to receive “the benefit of a consistent educational experience.” Id. at DFPS #37149. The psychologist recommended “long-term placement in a foster-care home or residential group home” and noted that Z.H. “will need intensive monitoring by caretakers” due to risk of suicide. Id. In April and June 2009, he was diagnosed with Bipolar Disorder, ADHD, Generalized Anxiety Disorder, PTSD, and Oppositional Defiant Disorder. Id. at DFPS #37208, #37213. He
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continued to experience serious psychological and emotional issues throughout his time in care. Repeated placement changes and caseworker turnover—Z.H. had at least nine different primary and secondary caseworkers—contributed to disruptions in his medication regimen, which resulted on at least one occasion in a psychiatric hospitalization that exacerbated Z.H.’s alreadydisturbed condition and behaviors. See id. at DFPS #33580.
While in care, Z.H. attended at least seven different schools across six counties. His education records, though, appear to be incomplete and his IMPACT file contains conflicting notes. Z.H.’s Education Log in IMPACT does not reflect what schools he attended for the third, fifth, or sixth grades. See id. at DFPS009118757-58. His Education Log seems to indicate that Z.H. went directly from second grade to fourth grade, although there does not appear to be any explanation for that in the record. See id. at DFPS009118757-58. Notes in his IMPACT file also seem to say that Z.H. repeated the fourth grade in 2010-11, information absent from his Education Log. See id. at DFPS009124720-25. Caseworkers’ notes in IMPACT indicate that Z.H. attended schools on campus at different RTCs between fall of 2010 and spring of 2013. See id. at DFPS009124637-25036. The notes, though, are inconsistent as to what grade Z.H. was in—some notes indicate that he was in sixth grade as early as September 2012, while others indicate that he was still in fifth grade as late as September 2013. See id. at DFPS009124903, 009125020. In the fall of 2013, Z.H. was in the seventh grade. See id. at DFPS009126275-94. In the fall of 2014, Z.H. entered the eighth grade. See id. at DFPS009124956-65. When Carter evaluated him, in the summer of 2014, Z.H. was unable to read a second grade level book. (D.E. 326 at 99-100). He also had “poor impulse control” and was aggressive with both other children and himself. Id. at 100-01. Carter found that Z.H. did not have a good sense of attachment, was “well below normal” from a “cognitive and school achievement standpoint,” and was “seriously
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disturbed.” Id. at 100, 186. At the 2014 evaluation, Carter found that Z.H.’s condition had not appreciably improved since his 2012 evaluation. Id. at 186. Unfortunately, as Carter testified and the Court so finds, Z.H.’s experience is “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. See id. at 132-33, 194.
h. K.E. K.E. is a former class representative for the General Class and the Licensed Foster Care Subclass.38 At the time of trial, K.E. was 19 years old. She aged out of care in 2013. (DX 120 at 1 RFP CPS 141226 (filed under seal)). She was removed from her mother’s home in Odessa, Texas in 2003 at age eight because of neglectful supervision, emotional abuse, and physical neglect. Id. at DFPS #44605, 1 RFP CPS 140538-47. During her ten years in care, K.E. had over 25 primary and secondary caseworkers. See id. at 1 RFP CPS 141859-62. She had at least 27 placements in a variety of settings, including psychiatric hospitals, therapeutic foster family homes, therapeutic foster group homes, emergency shelters, GROs, and RTCs. Id. at 1 RFP CPS 141120, 142037, 1141778-81, 140191-92. K.E. also attended at least 15 schools all over the State. Id. As with Z.H., K.E.’s Education Logs are incomplete. There is no record of K.E.’s sixth or eighth grades and there are date gaps after leaving one school and beginning another. See, e.g., id. at 1 RFP CPS 142602-06; 019904-07, 092721-25. In the 2008-09 school year alone, K.E. “was in 4 school districts.” Id. at DFPS #47130. The State placed K.E. and her three half-brothers in foster care at the same time in 2003. During the initial investigation, her brothers admitted to physically abusing K.E, which K.E.’s mother confirmed. See id. at 1 RFP CPS 140545-46. K.E.’s father was incarcerated at the time, and K.E.’s mother reported that K.E. was abused when she lived with her father. Id. at 1 RFP
38 The Court holds that certain Named Plaintiffs are no longer adequate class representatives. See infra Section III.
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CPS 140547. DFPS found Reason To Believe that K.E.’s mother neglectfully supervised all four children and that K.E. was physically and emotionally abused. Id. at 1 RFP CPS 140717.
K.E. was initially placed in a therapeutic foster home with one of the brothers who had physically abused her.39 She spent three months in that placement, during which time she was hospitalized twice for being “out of control.” Id. at 1 RFP CPS 142037. In June 2003, after her second hospitalization, CPS raised K.E.’s level of care to Intense and moved her to an emergency shelter. See id. CPS then placed her in an RTC approximately 270 miles from her home county. Id. at 1 RFP CPS 141120. Not until after that placement change did CPS disallow visits between K.E. and her brothers because of the earlier abuse. See id. at 1 RFP CPS 140594. In August 2004, K.E.’s three half-brothers were placed in the conservatorship of their biological father and his wife.40 Id. at DFPS #46830-42. K.E. was placed in Texas’s PMC. See id.
CPS was notified that K.E. was sexually abused, likely by multiple perpetrators, before entering care. Yet her case files do not indicate to what extent any of those allegations were investigated. K.E.’s first Common Application noted that she may have been sexually abused by her biological father’s girlfriend. Id. at 1 RFP CPS 140710. Shortly after being placed at an RTC in late 2003, K.E. made an outcry of sexual abuse against her brothers. See id. at 1 RFP CPS 140726, 141829. Yet nowhere in K.E.’s 38,000 pages of case files is there mention of a sexual abuse investigation. There is also no record of K.E. receiving a medical examination in connection with either of those allegations. Her next Common Application, which appears to have been updated soon after her first one, stated that K.E.’s sexual abuse by two of her brothers
39 The other two brothers were placed in a different therapeutic foster home. 40 The half-brothers had the same mother as K.E., but a different father who was married. The boys were placed with their father and step-mother. Both of K.E.’s parents were imprisoned at that time. K.E.’s mother was unavailable due to her incarceration, half-way house term, and home confinement for 2 years. Id. at DFPS #45352.
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had been confirmed.41 Id. at 1 RFP CPS 140726-29. The application also noted “sexual abuse by brothers and other adults” as a factor to consider in determining K.E.’s level of care. Id. at 1 RFP CPS 140728. K.E. also made an outcry of sexual abuse against her mother shortly after she entered PMC in late 2004. Id. at 1 RFP CPS 141833. There is also no documentation of any investigation into this allegation.
Despite documentation of sexual abuse allegations in 2003 and 2004, K.E.’s September 2011 service plan review stated, “No determination was ever made with regards to whether the [sexual abuse by her brothers] ever took place,” although K.E. “insist[ed] that it did take place.” Id. at 1 RFP CPS 140646. It is unclear whether the inconsistencies in K.E.’s record are a result of sexual abuse investigations being overlooked, sloppy and careless caseworker notes, constant caseworker turnover, or some combination of the above. Not until 2011 did a caseworker notice that K.E.’s files did not contain documentation of an investigation into the alleged sexual abuse by her brothers, which prior caseworkers accepted had occurred. It seems that no caseworker read K.E.’s case files all the way through during her first eight years in care or else they would have noticed the absence of this critical record.
K.E.’s Common Applications are similarly inconsistent. When K.E. was initially removed from her mother’s home because of neglect, emotional abuse, and physical abuse, she made no allegations of sexual abuse, nor was sexual abuse investigated. See id. at DFPS #46137-49. Yet, by January 2009, K.E.’s Common Application stated that she had been removed because her mother failed to protect her from sexual abuse by K.E.’s brothers. See id.
41 The application also stated that K.E. had to be removed from the home because the brothers who sexually abused her still lived there. Her brothers were actually removed from the home and placed in foster care at the same time as K.E. Id. at 1 RFP CPS 140726-29; 140538-47.
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at 1 RFP CPS 140873. Even singular documents were contradictory. For example, in July 2009, K.E.’s I See You worker noted that K.E. has eight siblings but that “[o]nly one of [K.E.’s] siblings is in care.” Id. at 1 RFP CPS 141766-67. In the very next paragraph the worker noted that K.E.’s siblings “are all out of care.” Id. Those conflicting statements were copied and pasted into every contact narrative for the next five months. See id. at 1 RFP CPS 141767-75.
As K.E.’s caseworkers continued to change, incidents that were previously described as allegations came to be accepted as fact, while references to other incidents and allegations disappeared completely. For instance, in June 2007, K.E.’s I See You worker e-mailed K.E.’s primary caseworker to inform her that another child in K.E.’s foster home placement hit K.E. and “bloodied her nose.” Id. at 1 RFP CPS 141798. There is no further mention of this incident, or any resulting medical attention, in the record. Further, in May 2012, K.E.’s caseworker noted that K.E. received stitches in her hand at the emergency room, after she broke a window at her RTC. Id. at 1 RFP CPS 141661. Later that month, when K.E.’s I See You worker visited, the worker’s notes do not mention any injuries but instead state that K.E. had no marks or bruises. Id. at 1 RFP CPS 141662. Neither worker appears to have followed up with the RTC about the incident or K.E.’s medical treatment.
Inadequate casework also contributed to DFPS’s failure to find K.E. a permanent home. Between mid-2003 and March 2005, DFPS identified K.E.’s paternal aunt as a possible kinship placement. Separate caseworker notes during this time said that the aunt would like to be considered as a placement, that she would like to get to know K.E. and have K.E. live with her, that she would not provide a home for her, that the aunt could not care for K.E., and that the aunt made no effort to get to know K.E. Id. at 1 RFP CPS 140577, 140595, 141066, 141095, 141807, 141810, 018073019238-39, 019261, DFPS #45354, 46685, 46718, 46846-47. After 2005, K.E.’s
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aunt is no longer mentioned. The case files do not indicate a home study was ever conducted for K.E.’s aunt.
More disappointing, DFPS appears to have given up on K.E. almost as soon as she entered care. Her second Common Application, updated in late 2003 when K.E. was eight years old, stated, “Long term foster care, [K.E.] will likely age out of care.” Id. at 1 RFP CPS 140729. In March 2005, when K.E. was ten years old, DFPS officially changed her long-term goal to APPLA, six years before DFPS policy allows. Id. at 1 RFP CPS 140593. K.E.’s October 2005 service plan review noted that adoption was not possible due to her “emotional/behavioral problems.” Id. at 1 RFP CPS 140597-99. K.E. received no other adoption-related services or efforts until 2009, when only after a court order did a caseworker note that K.E. would meet with staff from the adoption unit to “discuss adoption and everything that entails.” See id. at 1 RFP CPS 140623-25. Nothing came of that meeting; no other adoption efforts were made for K.E.
K.E. experienced little placement stability while in care. The only exception was a two and a half year stay at her first RTC, between September 2003 and March 2006. See id. at 1 RFP CPS 141120. K.E. was removed from that placement because the RTC felt that she had “not made any improvements while there.” Id. at 1 RFP CPS 141778. When K.E. initially learned that CPS was looking for a different placement for her, she became significantly more aggressive. RTC staff reported that she was “trying to sabotage the placement in order to stay because [she was] afraid to leave.” Id. DFPS still moved her 270 miles to a different RTC, more than 500 miles from her home county, in the middle of the school year. Id. at 1 RFP CPS 141779-81. After that move, K.E. experienced 22 different placements over the following seven years, never spending more than a few months in any facility. See id. at 1 RFP CPS 140191-92.
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Further, many of K.E.’s placements did not comport with her needs, exposing her to multiple incidents of sexual and physical abuse. During most of K.E.’s time in care, she displayed “extreme behaviors that require[d] 24-hour supervision.” See, e.g., 1 RFP CPS 140591, 141781, 141844, 142748, 142809. Yet on multiple occasions, K.E. appeared to have no supervision at all. For example, in February 2004, DFPS was notified of allegations of inappropriate sexual conduct, and possible sexual abuse, between K.E. (eight years old at the time) and three other female residents of her RTC, including allegations of oral sex and anal penetration. Id. at DFPS #46603. The intake report reflected that the whereabouts of the staff on duty at the time was “unknown.” Id. K.E.’s case files contain no documentation or mention of an investigation into these allegations.
That same year, in September 2004, DFPS was notified of different allegations of inappropriate sexual conduct between K.E. (nine years old at the time) and a 14 year-old female resident of the RTC that included digital penetration, which both children admitted. See id. at 1 RFP 7 RCCL 02151-58. The intake report notes that both children had a history of sexual acting out. Id. at 1 RFP 7 RCCL 02154. RCCL investigated those allegations for possible neglectful supervision, including making “contact with” K.E., the other child, and multiple RTC staff members, but the “contact” is not described or summarized in the report. See id. 1 RFP 7 RCCL 02158. The investigation closed five days after it was initiated. Id. The report stated:
The alleged neglectful supervision was ruled out, because a preponderance of evidence does not exist to support that the alleged neglectful supervision occurred. The alleged perpetrator was an unknown alleged facility staff member. The specific date and time frame of the alleged incident was unknown. The alleged victims did not have a history of being sexual perpetrators. The alleged victims have been separated, a safety plan has been put in place, and they were receiving therapy. During the investigation, no indications of abuse or neglect were found.
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Id. Numerous statements in this report, including that K.E. and the other child involved did not have a history of being sexual perpetrators, are misleading. DFPS refuses to track child-on-child abuse, thus labeling children as sexual abuse perpetrators, instead investigating child-on-child abuse for neglectful supervision. Therefore, it is impossible that any child in DFPS’s system would “have a history of being sexual perpetrators.” In the end, DFPS placed two children with a sexual abuse history in close proximity (even though these children need single-child homes), both children acknowledged the sexual incident, and RCCL Ruled Out any violation.
It is also not clear if K.E.’s caseworkers were notified of incidents of sexualized conduct and possible sexual abuse. There are no references to the 2004 incidents in K.E.’s primary or secondary caseworker’s notes in. K.E.’s service level throughout 2004 was Intense. See id. at 1 RFP CPS 140315-21.
After the 2004 incidents, as happens to many sexual abuse victims, K.E. became a sexual aggressor. See, e.g. id. at 1 RFP CPS 141609, 141676, 141767. Yet her case files do not indicate if she received therapeutic treatment to address sexual abuse and sexualized behavior until late 2008. See id. at 1 RFP CPS 141756. Not until 2009, is “sexual acting out” mentioned in her comprehensive treatment plan, which already listed “anger/aggression/assaultive behavior . . . suicidal ideation/gestures . . . depression . . . oppositional disorder . . . [and] impulse control.” Id. at DFPS #48311-15. DFPS changed her placement in mid-2009 “due to sexually acting out.” Id. at 1 RFP CPS 141676; 141265-66. DFPS changed her placement again in December 2011 after she sexually assaulted a resident at one of her RTCs. Id. at 1 RFP CPS 141643.
K.E. also suffered multiple instances of child-on-child physical abuse while in care, eventually becoming an aggressor in that regard as well. See e.g., id. at 1 RFP CPS 141756, 141778, 142756, 142780. Carter testified that K.E. became an aggressor toward others because
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she had been “victimized considerably” while in State care. (See D.E. 326 at 103-07). There was also at least one allegation by K.E. that she had been physically abused during a restraint by an RTC staff member; that allegation was adequately investigated before being Ruled Out. (DX 120 at RCCL000000289-428 (filed under seal)).
When K.E. entered care, she had already been diagnosed with Explosive Disorder, for which her mother received Social Security benefits. Id. at 1 RFP CPS 140546-47. According to her second grade teacher, K.E.’s Explosive Disorder was a result of environmental, not genetic, factors. Id. In 2003, during K.E.’s initial evaluation, a psychologist diagnosed her with Conduct Disorder, ADHD, and Learning Disorder. Id. at 1 RFP CPS 140578. The psychologist also noted K.E.’s prior diagnosis of Explosive Disorder. K.E.’s initial level of care was Specialized, though it fluctuated primarily between Specialized and Intense throughout her time in care. See id. at 1 RFP CPS 140306-415. By 2008, K.E. was diagnosed with Oppositional Defiant Disorder, Bipolar Disorder, ADHD, Learning Disorder (not otherwise specified) and Relational Problem (not otherwise specified), although she was no longer diagnosed with Explosive Disorder. Id. at DFPS #47779. Two months later, though, upon admission to a psychiatric hospital, she was only diagnosed with Bipolar Depression and “Questionable PTSD.” Id. at DFPS #47785.
K.E.’s education also suffered while she was in care. Educational disruptions occurred primarily after 2006 when K.E. was discharged from her first RTC. Her initial service plan stated that she was “developmental[ly] on target.” Id. at 1 RFP CPS 140579. When K.E. was in the second grade, she performed at a first grade level, but her teacher told CPS that K.E. would “make [educational] progress with the right stimulation.” Id. at 1 RFP CPS 140546-47. In third grade, K.E. had “A’s and B’s in all subjects except science.” Id. at 1 RFP CPS 141825. Her
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caseworker noted that K.E. maintained “very good” grades and had no absences in the fourth grade. Id. at 1 RFP CPS 141845. After 2006, however, her intellectual functioning deteriorated, although it is difficult to gauge because of her refusal to cooperate with psychological testing. See id. at DFPS #47696-98, 47702-05, 47770-77, 47864. By 2009, at age 14, K.E. was academically stalled at a second-grade level. See id. at DFPS #48306-11. She failed the tenth grade due to excessive absences caused by psychiatric hospital stays, and a refusal to do make-up work. See id. at 1 RFP CPS 141643-44, 141723.
Carter testified that K.E. had been in so many placements that she stopped counting because the number no longer mattered to her. (D.E. 326 at 104). K.E. was often removed from placements for behaviors that her caregivers could not handle, placed in more restrictive environments until her level of care would drop, and then moved back to less restrictive environments, whereupon the cycle repeated. See id. at DFPS #44886-938. When K.E. was in foster home placements, rather than RTCs, K.E. was never placed in a single-child home, as Defendants’ and Plaintiffs’ experts testified that a child with a history of physical and sexual abuse and aggression should have been. (See D.E. 328 at 161; D.E. 329 at 161; D.E. 303 at 8). When placed at RTCs, K.E. often shared rooms with other girls. In March of 2013, after ten years in care, K.E. turned 18 and aged out of the system. Id. at 1 RFP CPS 141226. In short, K.E.’s time in care was marked by educational disruptions, abuse, and numerous placements changes often to facilities unfit for her needs. Unfortunately, as Carter testified and the Court so finds, K.E.’s experience is “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. (See D.E. 326 at 132-33, 194).
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i. L.H. and C.H. L.H. and C.H. are former class representatives for the General Class, the Licensed Foster Care Subclass, and the Basic Care GRO Subclass.42 L.H. and C.H. are sisters who are part of an eight-sibling group from San Benito, Texas. They were 16 and 12 years old respectively at the time of trial. See id. at 1 RFP CPS 115993. The sibling group’s case files in the record, numbering approximately 16,500 pages, are undoubtedly incomplete. First, no RCCL files, which are kept in the CLASS database, were provided.43 Second, the case files for this eightmember group are significantly shorter than those for a single foster child (e.g., M.D.’s was 33,000 pages, J.S.’s was 40,000 pages), which suggest that the IMPACT and External files are incomplete. All eight children are discussed at once even though they were often placed separately and had different caseworkers, making the files difficult to follow. Both L.H. and C.H. received Basic-level services for most of their time in care, although C.H. spent some time at Moderate. See id. at 1 RFP CPS 131917-47, 132327. DFPS became involved in L.H.’s life in 2001 when CPS found RTB that her mother neglectfully supervised L.H., her older brother, and younger sister. Id. at DFPS009984773. CPS provided services until September 2002. During that time, CPS again found RTB neglectful supervision of L.H. and her two siblings. Id. In February 2003, a report alleged that four children, including L.H. and C.H., were left at home unsupervised and were hungry and dirty.
42 The Court holds that certain Named Plaintiffs are no longer adequate class representatives. See infra Section III. 43 RCCL files pertaining to abuse and neglect investigations are organized in CLASS, which stands for Child Care Licensing Automation Support System. CLASS is the electronic case file system utilized by CCL (similar to the IMPACT system utilized by CPS). (D.E. 328 at 112-13; see also DFPS, Definition of Terms, http://www.dfps.state.tx.us/handbooks/Licensing/Files/LPPH_px_ Definitions_of_Terms.asp (last visited December 16, 2015).
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Id. at 1 RFP CPS 122869, 122877. The children were removed that day, but were returned in April 2004. Id. at 1 RFP CPS 122961, DFPS009984773. The children were removed again in November 2004 when CPS received a report that the mother struck C.H., who was less than two years old, due to frustration with her eldest son. Id. 1 RFP CPS 122905. The children were returned to the mother in November 2005. The children cycled in and out of their mother’s care until CPS removed them in May 2008, moving them into separate emergency placements. Id. at DFPS009984766-832, 1 RFP CPS 115863, 122099, 123292-93, 123347, 123506, 123533, 125554. L.H. and C.H. entered Texas’s PMC in April 2009. Id. at 1 RFP CPS 130056-57. L.H. and C.H. shuttled through kinship placements (including their mother), foster family homes, foster group homes, and a GRO until they returned to their mother in May 2013. Id. at 1 RFP CPS 123413-17, 123441-44, 123480-513, 123529-37, 123626-33, 125427. Unlike many of the Named Plaintiffs, L.H. and C.H. remained geographically close to, and in touch with, their siblings and family while in care. See e.g. id. at 1 RFP CPS 116582, 116668-709, 122322.
After she was removed in 2003, L.H. claimed that her brother physically abused her and her sister and that he “used to pick up her shirt and pull down her pants and touch her.” It is unclear if these allegations were formally investigated. In 2003, CPS did investigate an incident, but Ruled Out any misconduct. See id. at 1 RFP CPS 124782, 125007. L.H. was forensically interviewed, but did not “make any indication that she was ever sexually abused” and “seemed to change the subject often to avoid answering some questions.” Id. at 1 RFP CPS 124838. Notes elsewhere in the case files indicate that CPS confirmed that the brother had “sexually molest[ed] other children,” without specifying whom, and was himself a victim of sexual abuse. See id. at DFPS009984771, 1 RFP CPS 124667.
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In July 2008, L.H. was diagnosed with General Anxiety Disorder. Id. at 1 RFP CPS 131531. In August 2008, one of the siblings made allegations of sexual abuse against their mother’s boyfriend stating that the boyfriend had bitten her and touched her inappropriately. Id. at 1 RFP CPS 120562, 120568. Another sibling alleged that she saw her mother and her mother’s boyfriend “take off their clothes and start kissing” and that she saw the boyfriend touch three of the other siblings inappropriately, including C.H. Id. at 1 RFP CPS 120568-69. Following an investigation, CPS found RTB neglectful supervision and sexual abuse of two of the siblings (not including C.H.), but R/O abuse and neglect as to the other children. See id. at 1 RFP CPS 117218, 116168. The investigator noted significant risk factors in the mother’s home, but overall found little risk of further abuse because the children were in foster care and the mother’s boyfriend had been arrested. Id. Their mother continued to be allowed unsupervised weekend and overnight visits with her children.
In September 2008, at the age of six, C.H. was placed in a therapeutic foster home separate from her siblings because she “bullied” them. Id. at 1 RFP CPS 123295. In April 2009, C.H. was diagnosed with ADHD, Anxiety, and Mood Disorder. Id. at 1 RFP CPS 131533.
In May 2009, a new caseworker retrieved C.H. and her sister from an overnight visitation with their mother. Id. at 1 RFP CPS 120577. Both girls made a sexual abuse outcry against their mother. Id. Although the caseworker appeared to be aware that the boyfriend was not supposed to have access to the children, she did not know about the past sexual abuse allegations. See id. The boyfriend told investigators that the mother allowed him access to her children and admitted that he and the mother spent a night at a hotel with her children. Id. at DFPS00998257. The caseworker concluded that the children were at an ongoing risk of sexual abuse. See id. at 1 RFP
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CPS 120577. The mother and boyfriend both appear to have been arrested following the outcry. See id. at DFPS009985222.
CPS investigated the allegations and found RTB neglectful supervision of all eight siblings by their mother, but UTD sexual abuse of any of the children by either the mother or her boyfriend. See id. at DFPS009985257-58, 1 RFP CPS 116146-47. The children did not make a further outcry of abuse when interviewed by an investigator, but they also denied having had contact with their mother’s boyfriend even though the boyfriend admitted he had spent nights with the children when they visited their mother on weekends. See id. at 1 RFP CPS 116168. In a post-investigation risk assessment report, CPS noted that the children’s mother established a “pattern of abuse.” Id. at DFPS009985258. The report found that the mother created an extreme level of risk because she had “been deceitful [with] the Department,” had “allowed a previously RTB’d perpetrator around the children,” and continued “to have a relationship with a man who sexually abused her children.” Id. at DFPS009985261-62. In what appears to be a separate investigation of the same allegations, CPS found RTB sexual abuse of two of the siblings, but not L.H. or C.H., by the mother’s boyfriend. See id. at DFPS009985217.
In June 2009, CPS moved C.H. and several siblings, but not L.H., into a therapeutic foster family home in Brownsville. Id. at 1 RFP CPS 131533. CPS returned L.H. and three siblings to their mother in October. Id. at 1 RFP CPS 131873. The following day, the mother moved into an emergency shelter in Brownsville with the children. Id. C.H. and three siblings remained in the foster home and had weekly visits with the other siblings and their mother. See id. at 1 RFP CPS 116157. In November 2009, C.H.’s foster parents requested that her level of care be increased because she misbehaved and struggled at school. Id. at 1 RFP CPS 131871.
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In January 2010, a school nurse visited L.H. at home and found her and her siblings “outside barefoot” “without jackets.” Id. at 1 RFP CPS 116130. She also observed that they were dirty, appeared malnourished, and that there was little food in the home. Id. The nurse called statewide intake to report her observations. The intake report noted that the mother’s boyfriend “was charged with abusing” L.H. and another sibling, but it was “unknown how [the boyfriend] was abusing” them. Id. at 1 RFP CPS 116170. The report also noted that the boyfriend was “not supposed to be around” the children, but was “still in the picture.” Id. at 116170. After an investigation, CPS Ruled Out all allegations of abuse and neglect, and notified the nurse that CPS “will not be offering services to the family at this time.” Id. at 1 RFP CPS 116132-34, 116171-74. During that investigation, L.H. informed the investigator that she was abused while in foster care seven years earlier by another child in the foster home and she reported the abuse to her foster mother, “but nothing was done about it.” Id. at 1 RFP CPS 116157. There is no mention of an investigation into those allegations.
In February 2010, L.H. was placed in a therapeutic foster group home, along with one of her younger brothers. Id. at 1 RFP CPS 123355-57. C.H. and two other siblings were not moved. The mother was still allowed to visit with all of her children each Saturday at a nearby mall. See, e.g., id. at 1 RFP CPS 132057-65.
A new caseworker began working on L.H. and C.H.’s cases in July 2010. Id. at 1 RFP CPS 132124. At their first meeting, the mother said that the frequent caseworker changes made it difficult to know who was the actual caseworker. Id. at 1 RFP CPS 132123. On July 8, the children’s therapist told the caseworker that the siblings needed to be moved all together, that C.H.’s foster mother was a bad parent, and that she was doing more damage to the children than the alternative of adjusting to a new environment with all the siblings. Id. at 1 RFP CPS 132128.
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L.H., C.H., and all of their siblings except the oldest brother were placed in a GRO on July 19, 2010 despite being Basic-level children. Id. at 1 RFP CPS 123302. The GRO was the only placement available that allowed the sibling group to remain intact. Vasquez, the attorney ad litem and next friend for L.H. and C.H., advocated that they be placed together because their ongoing trauma would have worsened if DFPS disrupted their tight sibling relationships—the only source of stability in their lives. (D.E. 188 at 161). Vasquez visited L.H. and C.H. multiple times in that placement. Id. at 167-68. She described the GRO as “an institution, a facility that just house[d] them,” with blank walls and “no personalization.” Id. Vasquez testified that the GRO was not at all like a home, and that the children did not view it as one, but was instead “a box that [they were] thrown” into. Id.
In August 2010, L.H. and C.H.’s caseworker visited them at the GRO. (DX 120 at 1 RFP CPS 132147 (filed under seal)). C.H. was anxious about wanting to return to the foster home where she had previously lived and refused to discuss anything else. Id. L.H. also stated that she missed her previous foster parent, but otherwise informed her caseworker that she liked the new placement. Id. L.H. also discussed the GRO’s many strict rules and very specific, detailed schedules for all of the children’s activities. See id. The siblings spent most of the day in their own room and were not allowed to visit each other’s rooms. Id. Two of their siblings struggled to adjust to the strict rules and the caseworker “tried to get [the caregiver] to be a little more lenient with the rules and be more understanding about [the children’s] move and give them some time to adjust,” but the caregiver was adamant about his methods. Id. The children continued to have weekly visits with their mother. See id. at 1 RFP CPS 132216.
L.H. and three other siblings returned to their mother “as a monitored placement” in January 2012. Id. at 1 RFP CPS 132256. C.H. and two other siblings were placed with a
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maternal aunt who lived in the same city. Id. at 1 RFP CPS 123306. In March 2012, L.H. was arrested after a fight broke out between L.H. and her mother. Id. at 1 RFP CPS 120600. On the way to the police station, L.H. said that the fight started because her mother told L.H. to take nude photographs of her mother to send to the mother’s boyfriend. Id. at 1 RFP CPS 125111. L.H. was released from police custody the same day. Id. CPS moved the children to their aunt’s home a few days later. Id. at 1 RFP CPS 124564, 125115-16. CPS investigated the allegations, which the mother confirmed, and made an RTB disposition. Id. at 1 RFP CPS 121433, 125116.
In April 2012, L.H., C.H., and their siblings were reunited and living with their maternal aunt. See id. at 1 RFP CPS 132346. However, their mother was regularly present in the home. Their mother was arrested for Assault on a Minor/Family Member after she got in an argument with the aunt’s 15-year-old daughter. See id. While in their aunt’s care, the children reported that their cousins were verbally and physically aggressive toward them. Id. Their mother also alleged that her niece was abusing the children and using illegal drugs and had exposed L.H. to those drugs as well. Id. at 1 RFP CPS 132249. During an investigation into these allegations, L.H. admitted that she smoked with her cousin, but was not sure whether it was marijuana or a regular cigarette. Id. The caseworker had L.H. drug-tested and made arrangements to move the children. Id. In May 2012, L.H., C.H., and their siblings (except the oldest brother) were moved back to their previous GRO. Id. at 1 RFP CPS 132347-52.
In June 2012, the caseworker transported L.H. and C.H. to visit their uncle in Hitchcock, Texas, in hopes that they could be “transitioned” into a kinship placement with him. Id. at 1 RFP CPS 132337. It is unclear why DFPS wanted to place the children with the uncle, as an October 2010 home assessment recommended not placing the children with him due to, among other factors, his precarious financial situation, his unstable romantic relationship, and his uncertain
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immigration status. See id. at 1 RFP CPS 116539-56. It does not appear that another home assessment was completed. At one visit during the “transition stage,” the maternal uncle cut the visit short because C.H. would not stop crying. Id. at 1 RFP CPS 132194-95.
On August 28, 2012, a court terminated parental rights over L.H., C.H., and five of their siblings. Id. at 1 RFP CPS 122140, 132173-78. In October 2012, their mother’s rights were reinstated after appeal, although the children were not to be returned to the mother at that time. Id. The children continued to live at the GRO with reunification and alternative relative placement as their permanency goals. Id. at 1 RFP CPS 132184, 122139. In December, CPS allowed visitation with their mother. Id. at 1 RFP CPS 132170. That month the children and their mother flew to Houston to spend Christmas break with the uncle. Id. The Department’s plan was to place the children with their uncle pending a new home study. Id. During the extended visit, however, the uncle locked L.H. and C.H.’s younger sister in the bathroom for an unknown amount of time after she started to cry during a scary movie, and the uncle threatened to hit her with a riding crop. Id. at 1 RFP CPS 120614. The caseworker’s report from that date expressed “grave concern regarding these reported statements at the children’s uncle’s home, to which they will be going within [the] month.” Id. at 1 RFP CPS 120617. An investigation was opened, but the service plan for L.H. and C.H. completed on January 16, 2013, made no mention of the allegations or impending change in the children’s placement. Id. at 1 RFP CPS 122140.
In February 2013, the caseworker noted that the children had mixed feelings about living with their uncle because he “curses too much and is very strict.” Id. at 1 RFP CPS 132371. Nonetheless, the department still sought to place the L.H., C.H., and their siblings with their uncle, who stated his willingness to take care of all of children except the eldest brother. Id. at 1 RFP CPS 132370-76. Additionally, the caseworker noted that their mother moved into the
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uncle’s house. Id. at 1 RFP CPS 132354. In March, the caseworker wrote that the children were not moved into the uncle’s home as planned due to the open investigation, which made the children, especially L.H., “visibly upset.” See id. at 1 RFP CPS 132354. After the investigator Ruled Out allegations of abuse, CPS again moved toward placing the children with their uncle. See id. at 1 RFP CPS 132355.
On April 9, 2013, the children were placed with the uncle, who signed a kinship agreement. Id. at 1 RFP CPS 123309, 132378. Days later, the uncle reported to CPS that the children’s mother had taken all of the children to another relative’s home and did not bring their medication. Id. at 1 RFP CPS 132380. On April 30, 2013, the uncle contacted the caseworker and said he no longer wanted legal custody of the children. Id. at 1 RFP CPS 132379. That same day, C.H., L.H., and their siblings were placed with their mother. Id. at 1 RFP CPS 123318. The report for each child stated:
This placement is not the most appropriate to meet this child’s needs but there are no other acceptable placement[s]. The Department has diligently made efforts to place with relatives, terminated [sic] parent’s rights but without success. Court has ordered that children remain with [their mother] and the Department will continue to monitor until dismissal date of 6/14/13. See, e.g., id. at 1 RFP CPS 123318. The report for each child further noted that it was “unknown if this placement will be able to meet the child’s long term needs” and that DFPS “was not in favor [of leaving] the children with [their mother]; however, court and attorneys were all in agreement that no other placement was available and it would be too traumatic to remove the children and place in foster care.” Id. On May 8, 2013, the caseworker appears to have visited the children for the last time and noted that the mother continued “to have a hard time ensuring that her house is well kept” and “to demonstrate that she is not able to cope with the number of children that she has.” Id. at 1 RFP CPS 121564.
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Between L.H.’s first removal from her mother in 2002, and her eventual return in 2013, she experienced 13 placements. C.H., who was born in 2002, had 15 placements over the same period. Despite being Basic-level children, they spent a significant amount of time in a GRO. L.H. attended at least 12 schools between pre-kindergarten and eighth grade, including three different schools during seventh grade. C.H. attended at least eight schools between prekindergarten and fourth grade, including five different schools during fourth grade. Between 2008 and 2013, L.H. and C.H. had at least eight primary and secondary caseworkers. See id. at 1 RFP CPS 125069-843. Their caseworkers did not visit them regularly, and often wrote short, recycled, and uninformative notes after visits. See, e.g., id. at 1 RFP CPS 131940, 132062, 132223-93, 132322-76. Carter did not review L.H.’s or C.H.’s case files, or interview them.
j. J.R., M.R., and S.R. J.R., M.R., and S.R. are former class representatives for the General Class.44 J.R. (six months old), M.R. (five years old), and S.R. (six years old) were removed from their mother in June 2010 after J.R. was hospitalized with seizures because her mother failed to properly mix her baby formula. Id. at 1 RFP CPS 71031-37. The mother was determined to have physically neglected and neglectfully supervised J.R. Id. at 1 RFP CPS 71079. The three children were in foster care for approximately three years before they were adopted by their maternal aunt. Yet, during that relatively short period, they had 19 caseworkers. The three siblings were usually placed together, although not initially. After being discharged from the hospital, infant J.R. was placed with a relative, but was moved within ten days due to a risk of abuse. She was placed with a therapeutic foster family, but after four days of continuous crying, the family requested her removal. J.R. was then placed in an emergency
44 The Court holds that certain Named Plaintiffs are no longer adequate class representatives. See infra Section III.
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shelter at a San Antonio GRO until her aunt could take care of her. Id. at 1 RFP CPS 71031-37. S.R. was originally placed at an emergency shelter at a GRO in Tyler, Texas. Id. at 1 RFP CPS 71407. M.R. was originally placed with a relative in Houston, but was quickly moved to his maternal aunt’s home. Id. at 1 RFP CPS 71419-23. Each child spent fewer than six months in care with someone other than a family member. Except for emergency placements, J.R. and S.R. were placed in the Houston area. M.R.’s placements were all in Houston. Because they were so young while in care, their education was not disturbed.
CPS determined that the children’s mother was unable to care for them due to her own mental health problems. Both S.R. and M.R. were Basic-level children, while J.R. was Moderate because of her congenital heart defect and neurological problems. Id. at 1 RFP CPS 71555. S.R. was diagnosed with developmental problems of unknown cause, in part because she did not speak at age five. S.R. and J.R. were both special needs children and characterized as autistic. Id. at 1 RFP CPS 72480. M.R. had no health issues. Id. at 1 RFP CPS 71686. Genetic testing was recommended for S.R. in July 2010 and ordered by the Court in August 2010, but the records do not reflect that the testing was ever performed. Psychological evaluations were recognized as necessary for all the children in June 2010, but evaluations were not performed until June 2012. See Id. at 1 RFP CPS 72498, 075450-55. The evaluation determined that S.R. had a full scale IQ of 50, along with significant developmental delays and was diagnosed with ADHD and mental retardation. Id. J.R was determined to be functioning at an 11-month-old level, although she was two and a half years old. Id. at 1 RFP CPS 075705-09. J.R. was diagnosed with Pervasive Development Disorder.
In August 2011, one of the children’s caseworkers stated in S.R.’s Child’s Service Plan, “caseworker will ensure that child is referred for a psychological assessment to ensure that all of
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his [sic] mental health needs are met.” Id. at 1 RFP CPS 108213. The next Plan, done by a different worker, in December 2011 says, “should the child require additional/testing evaluations, the caregiver will schedule the appointment and provide the agency with the completed report.” The Plan does not indicate that any mental health evaluations took place in the three months between Plans, nor is there a report in the files. Id. at 1 RFP CPS 108318-23. Similar disjointed records exist for J.R. See id. at 1 RFP CPS 108349-60. It appears that as the caseworkers changed, the need for psychological evaluations was overlooked until the change of placement to a foster family caused the issue to come up again. Unfortunately, as Carter testified and the Court so finds, J.R.’s, M.R.’s, and S.R.’s experiences are “typical . . . of the entire foster care system in the State of Texas,” especially in the PMC. (See D.E. at 132-33, 188, 194).
k. S.S. S.S. is a former class representative for the General Class.45 At the time of trial, S.S. was 11 years old. The records provided to the Court on S.S. are incomplete. They are only 776 pages long, which includes files on her father and one of her brothers. The Court was supplied with only External files, no IMPACT or RCCL files. As a result, the Court’s ability to evaluate the casework for S.S., as well as her experience in foster care, is substantially impaired. S.S. was eight years old in 2011 when she made an outcry that her 14-year-old brother had been sexually abusing her for four years. Id. at 1 RFP CPS 163969-79. S.S.’s parents contacted the police and CPS after the mother had S.S. examined by a doctor in Mexico. Id. at 1 RFP CPS 163861. The family lived in the Brownsville area; the parents were separated and the children lived with their father. During CPS’s investigation, S.S. lived with an aunt and uncle in
45 The Court holds that certain Named Plaintiffs are no longer adequate class representatives. See infra Section III.
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Los Fresnos, Texas, and her brother was in a Houston emergency shelter. Id. at 1 RFP CPS 163912-13, 164027.
S.S.’s August 2011 Placement Summary reflected an immediate need for counseling. Id. at 1 RFP CPS 164464-66. That same report identified a therapist and states, “needs initial visit.” Id. Yet the Service Plan for S.S. dated September 12, 2011 does not mention any therapy or counseling. It only notes that S.S. is being “watched closely to determine if she has any specialized emotional needs as a result of being sexually abused.” Id. at 1 RFP CPS 164015. A year later in June 2012, S.S. still did not have regular therapy even though it was needed “to address any emotional or behavioral effects that [S.S.] may be experiencing as a result of the abuse she suffered . . . .” Id. at 1 RFP CPS 164153. The Court cannot determine whether the absence of therapy for an eight-year-old girl who was sexually abused for half her life was the result of overloaded caseworkers or otherwise. The available records do not reflect the frequency of S.S.’s contact with her caseworkers or any effort to arrange therapy.
The records do reflect that DFPS found RTB neglectful supervision by the father as to S.S. and one of her brothers, RTB medical neglect by the father as to one of S.S.’s brothers, and RTB sexual abuse by the father as to one of S.S.’s brothers when he was five years old. Id. at 1 RFP CPS 164052, 163932. Yet DFPS did not oppose returning the son to the father, as long as S.S. was not present. See id. at 1 RFP CPS 164046-50. S.S.’s brother was returned to the father’s custody by Court Order dated June 20, 2012. Id. at 1 RFP CPS 164161-65.
S.S. entered PMC in June 2012. A year later, S.S. was moved to the substitute care of her aunt and uncle with standard visitation by her father. Id. at 1 RFP CPS 164221-36. It is not clear if S.S. was the only child in her aunt’s and uncle’s home, as Defendants’ and Plaintiffs’ experts agreed is necessary for sexually abused children. (See D.E. 328 at 161; D.E. 329 at 161;
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D.E. 303 at 8). Overall, S.S. was in care for two years and was placed within 15 miles of her father and siblings. Id. at 1 RFP CPS 164472. S.S. changed schools during the summer break in 2011 between first and second grade and remained in that school until third grade when she moved in with her aunt and uncle. Id. at 1 RFP CPS 164476. Carter did not review S.S.’s case files, or interview her.
l. A.R. A.R. is a class representative for the General Class. At the time of trial, A.R. was two years old. Id. at 1 RFP CPS 162647. She was born prematurely to a mother who smoked marijuana while she was pregnant. A.R.’s parents did not marry and had a volatile relationship that exposed A.R. to drugs and to domestic chaos and arguments. A.R. came into foster care in November 2011, at five months old, because of a neglectful supervision complaint placed by hospital staff. A.R. was removed after she fell out of her car seat onto the pavement and sustained multiple injuries, including a head injury. A.R.’s mother did not strap A.R. into the car seat and was not using the car seat’s carrying handle when the mother had a seizure and dropped the seat causing A.R. to fall into the street. A.R.’s mother had a long-standing seizure disorder, but did not take medication. Id. at DFPS009071852-53. DFPS found RTB neglectful supervision, but R/O physical abuse. Id. at DFPS009073216. A.R. first moved into a foster family home, where she remained for a year and a half. Id. at 1 RFP CPS 168864. She then transferred to a kinship placement with her paternal uncle and his wife. Id. While there, A.R. developed extreme tantrums that included throwing objects, extreme anger with screaming fits, violent responses to being denied anything, and food stealing and overeating to an extreme degree. See, e.g., id. at 1 RFP CPS 169153. The placement fell
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through after a year, and A.R. returned to her original foster family, where she stayed until that family adopted her in April 2014. Id. at 1 RFP CPS 168859-63, DFPS009074287.
During her time in care, A.R. was placed within 50 miles of her parents and saw them during supervised visits. A.R. had an older half-brother who was voluntarily placed with their maternal grandmother. A.R. had visits with him while she was in care. Her level of care was Basic much of the time, but increased to Moderate for a period. Id. at 1 RFP CPS 168865. As with the other Named Plaintiffs, A.R.’s case files were often incorrect and inconsistent. For example, one of A.R.’s Service Plans noted that she was an only child, even though the same Plan mentioned that she had a relationship with her brother and identified him by name. Compare id. at 1 RFP CPS 168833, 168837, with 168856.
Unlike many of the Named Plaintiffs, A.R.’s time in foster care was relatively short. She was adopted three and a half years after being placed in care. A.R. had the same caseworker for most of her time in care, but when A.R.’s case was transferred to a new caseworker, the worker admitted to the foster family that she had not seen A.R.’s file. See DFPS009074339-41. Carter did not review A.R.’s case files, or interview her.
III. PRELIMINARY ISSUES Defendants contend that this lawsuit is precluded for a number of reasons: (1) Named Plaintiffs lack standing; (2) class certification is improper; (3) this Court should follow the abstention doctrine; and (4) the suit is moot because some Named Plaintiffs are no longer in care. The Court reaffirms its previous rulings on standing, class certification, and abstention, see M.D. II, 294 F.R.D. 7, and finds that the claims of the General Class, the Licensed Foster Care Subclass, and the Foster Group Home Subclass are not moot.
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In their post-trial brief, Defendants seem to assert that Plaintiffs lack standing. However, they fail to make an actual argument to this effect. (D.E. 359 at 51-52). Instead, without an explanation, Defendants cite three seminal standing cases and declare that Plaintiffs do not meet their requirements. Id. The Court is not convinced and reasserts its finding that Named Plaintiffs have standing. In a similar cursory manner, Defendants revisit their class certification and abstention arguments, which this Court has already decided. Id. at 50-52. The Court certified the General Class and three of four subclasses after conducting the “rigorous analysis” that Fed. R. Civ. P. 23(a) and Wal-Mart require. M.D. II, 294 F.R.D. 7. Defendants have not given this Court any reason to amend its prior decision. Likewise, Defendants have not presented new evidence or arguments that convince the Court to overturn its holding that abstention is not appropriate under Younger or Burford. See M.D. v. Perry, 799 F. Supp. 2d 712 (S.D. Tex. 2011).
Defendants raised one new issue, intimating that some Named Plaintiffs are no longer appropriate class representatives. (D.E. 360 at 47-49). Indeed, some have been removed from foster care. See id. Generally, that would moot those Named Plaintiffs’ claims and preclude them from meeting the “case or controversy” requirement for standing. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980); Fontenot v. McCraw, 777 F.3d 741, 747 (5th Cir. 2015). Named Plaintiffs who lack standing are usually dismissed from the case and cannot serve as class representatives, thus causing class decertification. The Court holds that decertification is not proper for the General Class, the Licensed Foster Care Subclass, or the Foster Group Home Subclass. However, decertification is proper for the Basic Care GRO Subclass.
Seven Named Plaintiffs—M.D., S.A., A.M., J.S., H.V., Z.H., and A.R.—representing the General Class, the Licensed Foster Care Subclass, and the Foster Group Home Subclass, were in
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their respective classes when they were certified on August 27, 2013. M.D. II, 294 F.R.D. 7. It is well settled that upon class certification, “the unnamed class members ‘acquired a legal status separate from the interest asserted by [the Named Plaintiffs].’” Zeidman v. J. Ray McDermott, 651 F.2d 1030, 1045 (5th Cir. 1981) (quoting Sosna v. Iowa, 419 U.S. 393, 399 (1975)). “In essence, the act of certification brought the unnamed members of the class before the court for Article III purposes; so long as their claims [are] justiciable, the mootness of the original named plaintiff’s claim would not require dismissal.” Zeidman, 651 F.2d at 1045. The Court finds that the case and controversy remains “very much alive” for the unnamed class members who are still in the certified classes. Sosna, 419 U.S. at 401. As a result, the General Class, the Licensed Foster Care Subclass, and the Foster Group Home Subclass have adequate representatives and remain certified.
Before discussing the Basic Care GRO Subclass, the Court notes that D.I. remains an adequate representative of the General Class and the Licensed Foster Care Subclass under the relation back doctrine. The doctrine applies in two situations: (1) where named plaintiffs’ substantive claims are “by their nature . . . so transitory that no single named plaintiff with such a claim could maintain a justiciable case long enough to procure a decision on class certification”; and (2) when individual named plaintiffs’ claims are mooted “by the defendant’s purposive acts.” Zeidman, 651 F.2d at 1050. In the second case, the relation back doctrine prevents defendants from purposely avoiding litigation on legitimate class claims. See Sandoz v. Cingular Wireless, 553 F.3d 913, 919 (5th Cir. 2008). The Court finds that the relation back doctrine applies here under the second exception. Defendants purposely “picked off” D.I. in the hope of mooting his claims. Zeidman, 651 F.2d at 1050. Buried in D.I.’s case files are handwritten notes on his May 30, 2012 Adoption Preparation Form, which read: “*He’s under the Child’s [sic]
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Rights Lawsuit” and “***(expedite adoption—will be nonsuited after).” (PX 185 at 3079 (filed under seal)) (emphasis added). On D.I.’s May 31, 2012 Adoption Records Form under “special circumstances the redactor needs to be aware of,” the form states, “Please expedite. Call supervisor for details.” Id. This call to arms came after a May 2, 2012 status conference where the Court notified both parties that the class certification hearing would be scheduled around December 2012. D.I. was adopted on October 24, 2012. Likewise, Ricker testified that J.S. and H.V. both received significantly more attention after becoming Named Plaintiffs. (D.E. 326 at 219-20). J.S. was assigned two caseworkers, one of whom had a law degree. Id. at 220. CPS also managed, after much concerted effort, to locate an adoptive placement for J.S. even though a judge had called him “unadoptable” due to his behavior. (DX 120 at DFPS009059404 (filed under seal)). As part of that effort, one caseworker asked a supervisor for money to purchase “brochures with good quality photographs in color” of J.S. The supervisor needed to clear this request with the Program Director because CPS did “not normally do” that. Id. at 1 RFP CPS 054667-72. Although the Court would otherwise applaud DFPS for over-the-top efforts to find a troubled child a permanent home, the apparent motivation is disconcerting. The idea that Defendants “may short-circuit a class action” by undermining the standing of Named Plaintiffs “deserves short shrift.” Roper v. Consurve, 578 F.2d 1106, 1110 (5th Cir. 1978).
The Court did not find this level of malfeasance toward L.H. and C.H., the Basic Care GRO Subclass representatives. The Court recognizes that L.H. and C.H. were placed with their uncle shortly before the Class Certification Order, four years after they entered foster care, and in spite of their caseworker expressing “grave concerns” about this placement because of an open investigation against the uncle for threatening to hit L.H.’s and C.H.’s younger sister with a riding crop. (DX 120 at 1 RFP CPS 120617 (filed under seal)). The Court also recognizes that
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days after moving in with their uncle, CPS signed off on transferring custody to the children’s mother—for whom DFPS had found multiple RTB neglectful supervision of the children—even though, “This placement is not the most appropriate to meet th[e] child[ren]’s needs.” Id. at 1 RFP CPS 123318. The Court is wary about the timing and motivation of these events, but the Court has not seen sufficient evidence that DFPS purposively “picked off” L.H. and C.H. Therefore, without adequate representatives, the Basic Care GRO Subclass must be decertified.
The Court notes that eight proposed Named Plaintiffs—P.O., S.R., M.R., J.R., K.E., and S.S., L.H., and C.H.—are no longer adequate representatives. In addition to L.H. and C.H. leaving foster care in April 2013, P.O. was adopted by his grandparents in December 2012, custody over S.R., M.R., and J.R. transferred to their aunt in August 2012, K.E. aged out of care in March 2013, and custody over S.S. transferred to her aunt and uncle in August 2013. Some of these events are undoubtedly suspicious. P.O. was adopted by his grandparents eight years after entering PMC, one month before the class certification hearing, even though they were willing to adopt him much sooner. Likewise, DFPS transferred S.S. to her aunt days before of the Class Certification Order. Neither case file, however, reveals the blatant motivation present in D.I.’s records. That said, the Court does not need to determine if the State picked off these Named Plaintiffs. P.O. was a representative for the General Class and Licensed Foster Care Subclass, which are both certified without him; S.S. was a representative for the General Class, as well as the proposed Unverified Kinship Subclass, which the Court did not certify. Although these eight children are not adequate class representatives, the Court can rely on their foster care experiences as evidence of Plaintiffs’ claims in the same way that the Court can rely on the experiences of former foster children Arce, Bentley, Jackson, Virgil, and Sharp. Their experiences are proper evidence of the case and controversy that is very much alive for the remaining certified classes.
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IV. DISCUSSION To succeed on their claims, Plaintiffs must demonstrate that the challenged policies or practices were “the moving force[s] behind, or actual cause[s] of, the constitutional injury.” Harris v. Serpas, 745 F.3d 767, 774 (5th Cir. 2014) (internal quotations omitted). In this case, Plaintiffs must prove that Texas’s policies or practices were the moving force behind, or actual cause of, the harm and unreasonable risk of harm to foster children in the certified classes. The “question of causation is intensely factual.” Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir. 1999). “Circumstantial evidence and reasonable inferences therefrom are a sufficient basis for a finding of causation.” Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1044 (5th Cir. 2011) (citation omitted). Where “fault and causation [are] obvious,” demonstrating that a public agency’s policy or practice is unconstitutional is sufficient to establish the agency’s liability. See Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 406 (1997). As discussed supra, Plaintiffs must also show that Texas’s policies or practices that caused the unreasonable risk of harm were maintained with the requisite culpability—either deliberate indifference or substantial departure from professional judgment. See Section II.C. A. General Class The General Class consists of all children now, and in the future, in Texas’s PMC. Plaintiffs allege that DFPS's policies toward its primary conservatorship caseworkers (“CVS caseworkers” or “primary caseworkers”) cause a number of interconnected problems, such as excessive workloads and frequent CVS caseworker turnover. These problems, Plaintiffs argue, result in an unreasonable risk of harm to the General Class in violation of their Fourteenth Amendment rights. The Court agrees.
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CVS caseworkers “provide or coordinate services to families in which children have been removed from their homes and placed in the State’s custody because of significant risks to their safety.” (DX 119 at 17). They are “the frontline workers of the child welfare system.” (PX 2037 at 7). CVS caseworkers are foster children’s “lifeline,” their “connection to everything.” (D.E. 323 at 33). They are the principal DFPS employees tasked with ensuring the safety, permanency, and well-being of foster children. CVS caseworkers have been described as “the backbone of the State’s effort to protect children” who “make life-and-death decisions every day,” (DX 119 at 17), “critical, critical to the provision of child safety, permanency and wellbeing,” and the “eyes and ears of the State for . . . PMC children.” (D.E. 305 at 11-12).
CVS caseworkers’ responsibilities are extensive. They are in charge of “matching children with the most appropriate and least restrictive placement, monitoring that children are safe and their needs are being met in their placements, ensuring that children receive needed services, and developing and implementing permanency plans for children so they exit custody to permanent families as quickly as possible.” (PX 2037 at 7-8). CVS caseworkers are also “responsible for monthly face-to-face contact with the child,” “the foster parents,” and “all other parties involved in the case,” including the child’s caregivers and attorneys and guardians ad litem, to ensure that the child’s needs are being met. (D.E. 324 at 11; PX 885 at 133). In addition, primary caseworkers attend court hearings and service plan meetings, keep children’s medical records updated, prepare court documents, create monthly summaries, and document and maintain relationships with their foster children and the parties involved. (D.E. 324 at 11). At the core, a CVS caseworker’s primary job is to “ensure the safety of children in foster care.” Id. Foster children look to their CVS caseworkers “for support, guidance, [and] understanding . . . . That’s the person the child comes to rely on to get them through [the foster care] experience.”
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(D.E. 326 at 85). Without a CVS caseworker, foster children “would be at a clear risk of harm” because “watching for safety issues” is one of CVS caseworkers’ “crucial responsibilities.” (D.E. 305 at 12). Specia testified that a foster child’s primary CVS caseworker is “one of the most important workers” in the child’s life. (D.E. 299 at 74). McCall explained that if CVS caseworkers “really are too busy,” foster children are at risk of harm. Id. at 12-13.
Before analyzing whether CVS caseworkers “really are too busy,” the Court notes that caseworker caseloads are still something of an open question despite years of litigation and weeks of trial. The problem is that Texas calculates caseloads in terms of “stages,” each of which represents an aspect of the work that needs to be done with a child or her family, rather than by individual children. DFPS stages could include Intake, Investigation, Family Preservation, Child Substitute Care (relating to children removed from the home), Family Substitute Care (a stage created for families when a child has been removed from the home), Foster and Adoptive Home Development, Kinship, and Adoption. (DX 167). One child, then, could represent several stages simultaneously. She could be in the Child Substitute Care and Adoption stages while her family was in the Family Substitute Care one. DFPS’s way of counting caseloads is unique to Texas. (D.E. 302 at 50; D.E. 303 at 4-5). Defendants’ and Plaintiffs’ experts could barely understand the stage-counting approach, let alone explain it to the Court. (See D.E. 327 at 38-39; D.E. 325 at 124-25; D.E. 305 at 45-51). It is therefore difficult to compare DFPS caseworker caseloads to national and professional standards.
Dr. Miller, who ran the DFPS equivalents in Tennessee and Kentucky, established a primary caseworker caseload range of 14 to 17 children in Tennessee, with a maximum of 20. (D.E. 302 at 50-51). When caseloads exceed 20 children, Dr. Miller explained, the caseworkers’ “work really begins to suffer and the children for whom that work is being done begin to suffer.”
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Id. Moreover, Dr. Miller said, setting reasonable caseload caps allows a child welfare agency to better handle caseworker turnover. Dr. Miller’s 14 to 17 child caseload range provided that when a worker resigned or went on leave, their work could be distributed without causing caseloads to exceed 20, assuring that “none of those kids fell through the cracks.” Id. at 53.
Professional organizations agree with Dr. Miller. According to the 2007 Texas Appleseed report, “When those caseworkers are inadequately trained, inexperienced, or overburdened, the system breaks down and children in the system are harmed.” (PX 1966 at 11). Likewise, a 2014 audit of DFPS said, “The single most important improvement any system can make is to ensure it has a well-trained workforce with workloads that meet national standards.” (PX 1880 at 16). The CWLA, which Texas recognizes, see Tex. Gov’t Code Ann. § 531.001(5), recommends a caseload range from 12 to 15 children. (PX 18 at § 3.48). The COA advocates caseloads of 8 to 15 children. (PX 2037 at 9-10). The Court would like to consider DFPS’s own standards, but DFPS does not have any. (See, e.g., D.E. 300 at 12; D.E. 311 at 17). Unlike other child welfare systems, DFPS “puts no limits on the caseload size that a conservatorship worker can carry.” (D.E. 305 at 25, 27-28).
That said, one of DFPS’s Regional Directors agreed that “[a]n overloaded case worker is bad for the children they are supposed to protect.” (D.E. 311 at 21). Commissioner Specia admits that high caseloads “put[] a burden on the worker” and “can have a number of negative consequences.” (D.E. 299 at 55-56). DFPS also agrees that caseloads must be manageable in order to protect foster children. Before working for DFPS, Burstain said, “With caseloads at a manageable level, caseworkers could visit with children and families more often and ensure that children were safe and families were getting needed services.” (PX 1877 at 10). Likewise, “Lower caseloads reduce the paperwork load and allow [conservatorship] workers to spend more
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time helping families and children.” Id. Yet DFPS has not capped its caseloads. Most shocking, McCall, the DFPS officer in charge of making sure that caseworkers have manageable workloads, has “no idea what size child caseload [her] conservatorship workers should have in order to do their jobs properly.” (D.E. 305 at 31). Regardless, McCall agreed that overburdened CVS caseworkers create an unreasonable risk of harm for foster children. Id. at 12-13. Thus, national professional organizations, heads of other state’s child welfare systems, both parties, and this Court agree that excessive caseloads cause an unreasonable risk of harm to foster children.
The Court does not need to establish the exact point at which caseloads become so excessive that they cause an unreasonable risk of harm. Dr. Miller believes that point is at 20 children. The CWLA and the COA believe that point is at 15. Wherever that point lies, DFPS has crossed it. As of July 2014, 21% of CVS caseworkers with at least one PMC foster child had caseloads of 21-25 children; 13% had caseloads of 26-30 children; 6% had caseloads of 31-35 children; and 3% had caseloads of 36 or more children. (PX 2129). In other words, 43% of DPFS’s caseworkers have caseloads above the most lenient professional standard before the Court; and the situation is likely much worse.
Beyond its nebulous stage-counting approach, DFPS “counts [as caseworkers] people that are not there,” such as workers on maternity or medical leave. (D.E. 305 at 41). Moreover, secondary I See You workers and Centralized Placement Unit workers “are categorized in [the DFPS] computer system as conservatorship caseworkers” even though neither workforce has close to the responsibility of a primary caseworker. (D.E. 310 at 67; see also infra pp. 171-76). DFPS also counts caseworkers that only keep track of one child, part-time caseworkers, and fictive workers who are “created out of all the overtime,” which “are not actually even people.”
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Id. DFPS’s data already shows excessive caseloads. The Court can only imagine the actual figures if make-believe people are no longer counted.
Despite DFPS’s deception, the caseworkers themselves say that they are overworked. Over 55% of DFPS’s caseworkers agree that “they do not have adequate time during the workday to successfully do their job.” (DX 119 at 21). More than half believe that DFPS’s expectations for their job performance are unreasonable. Id. Caseworkers often fail to file court reports on time, if at all, and they “do not have enough time to do more than cursory monthly home visits,” typically lasting just five minutes. (PX 1988 at 99). Attorney ad litems Ricker and Vasquez testified that CVS caseworkers are often too busy to return their phone calls, or file necessary documents, which delays needed services to foster children. (D.E. 326 at 224-25; D.E. 327 at 189-92). As one DFPS audit put it, “caseworkers do well just to put out fires.” Id.
Former CVS caseworker B. Miller testified that she had caseloads of “forty to 60 [stages], sometimes higher.” (D.E. 323 at 34). She said this caseload was typical and unmanageable. Id. B. Miller worked approximately 50 hours in a typical week—weekly overtime was the rule, not the exception. Id. at 34-35. Her caseload caused her to experience “[e]xtreme stress, burnout, wearing down, [and] anxiety,” and affected her relationship with her family. Id. at 38. Any time a worker in B. Miller’s unit left, the remaining workers’ caseloads would “spike” as the leaving worker’s cases were redistributed. Id. at 39. As a caseworker, Miller spent most of her time “doing triage” and was forced to prioritize certain responsibilities over others because of the size of her caseload. Id. at 35-36. B. Miller also testified that children in PMC were more affected by her high caseload than children in TMC. Id. at 37. This was because TMC children’s cases have “many [more] moving parts” and “many aspects that are demanding for services,” while PMC children are generally already in a placement and at least
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appear to be relatively settled. Id. at 37. As a result, Miller testified that “when something else [was] blowing up,” PMC children were “the first ones to . . . get pushed to the side.” Id.
To gain a perspective on what is a manageable caseload, the Court calculated how many hours it took to simply review the 20 foster children’s case files that are in the record, including Named Plaintiffs’. (DX 120). Bearing in mind that a 20-child caseload is below what many DFPS primary caseworkers carry, it took the Court 462 hours just to read the 358,102 pages of case files in DX 120. Admittedly, the Court is not (or was not) well trained at reading case files. That said, any added time it took the Court to read the case files was offset by their incomplete nature: the records contained no CPA investigation files, and there were no IMPACT or RCCL files for multiple children. In short, reading case files, a necessary step for caseworkers to understand the needs of their foster children, takes around eleven uninterrupted workweeks. Considering the frequent turnover among caseworkers, see infra pp. 176-82, this onerous task is duplicated many times for each child. It is no surprise, then, that caseworkers “just don’t have enough hours in their day” to focus on their children. (D.E. 326 at 200). As a result, the needs and safety of Texas’s PMC children are being overlooked. (See, e.g., PX 1988 at 10).
For example, Jackson, who aged out of foster care in July 2014, told the Court that he saw his caseworker “once every two months,” and that “it was just hard to get in contact with her [and] to even have a conversation with her . . . [to] tell her I needed things.” (D.E. 324 at 186). No caseworker even visited J.S. the month before an alleged sexual abuse in his placement. After the abuse, J.S.’s primary caseworker did not visit him for another four months. S.A. similarly would go several months without contact from her primary caseworker. S.A.’s rotation of overburdened caseworkers caused significant paperwork delays, which prevented many possible adoptions. Attorney ad litem Ricker explained her elaborate protocol just to speak with
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a primary caseworker: “you call the caseworker and then I call the supervisor, and I call the supervisor’s supervisor, and I say, I’m looking for your caseworker, pleading . . . . And at some point . . . I instruct frankly the lowest level person on my staff every hour on the hour I want you to send a fax and make a phone call until we hear back from this person.” (D.E. 326 at 199-200). “It is a pervasive problem,” Ricker testified. Id. at 200. “They just flat-out don’t have the time to get back to me.” Id. These examples indicate the obvious: overburdened caseworkers cannot protect their foster children. The purpose of professional caseload standards is to set the point at which children receive adequate care. DFPS’s caseloads far exceed all standards. As such, PMC children are placed at an unreasonable risk of harm.
Further, DFPS’s administrative demands, such as filling out paperwork, are particularly heavy. CVS caseworkers are only able to spend 26% of their time with children, which Specia called “disturbing.” (PX 1993 at 10; D.E. 300 at 24; see also D.E. 302 at 43-44). The Stephen Group cited this 26% figure as “clear evidence that the agency is doing more compliance than care,” and “a barrier that is qualitatively reducing the CPS caseworkers’ ability to keep children safe.” (PX 1993 at 10, 37). The Stephen Group went on to say, “The consequence of these administrative burdens go beyond reducing the time that workers get to build relationships with families. They also mean longer waits to close cases, which leave families in limbo, and worker burnout that leads to high turnover and lower morale which impacts performance.” Id. at 11. In Dr. Miller’s experience, CVS caseworkers should spend “at least 40 to 50 percent” of their time working directly with children and families. (D.E. 302 at 42). Dr. Miller further explained that, when you combine DFPS’s excessive caseloads with its administrative burdens, “In essence, [foster] children may well not have a caseworker.” Id. at 43.
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Former CVS caseworkers B. Miller and Voelkel testified that they were often too busy to keep up with their documentation responsibilities, even though they considered them vital. (D.E. 323 at 36; D.E. 324 at 16). DFPS is well aware that its caseworkers often cannot keep up with required documentation when their caseloads are high. For example, in a memorandum to the Commissioner, McCall noted that exceptionally high CVS caseloads in Region 9 in October 2012 prevented caseworkers from completing required documentation “timely, if at all.” (PX 1825 at 2). Lack of documentation was especially problematic when caseworkers left and their cases were redistributed. (D.E. 324 at 16). The remaining caseworkers could not immediately assess the needs, and appropriately monitor the safety of, the new children on their caseload if their files did not contain thorough and up-to-date documentation. See id. B. Miller at times received files from departing caseworkers that were not up-to-date, making it more difficult to ascertain the current condition and immediate needs of the children. (D.E. 323 at 41). The casefiles that B. Miller received also sometimes contained inaccurate information (such as documentation of required face-to-face visits that had never actually occurred). Id. at 42. Voelkel believed that this common practice of prioritizing more pressing tasks, and allowing documentation to suffer, exposed children to a risk of harm. (D.E. 324 at 16).
The problems of inadequate and incomplete caseworker documentation are considerably magnified by the way in which DFPS maintains foster children’s case files. Children’s records are not kept in a single location nor are they consistently maintained in chronological order. (See D.E. 343 at 1; see generally DX 120 (filed under seal)). Some of the children’s files are kept electronically on DFPS’s IMPACT casework system. Other children’s files are maintained entirely in External paper files. (D.E. 343 at 1-2; supra p. 80-81 nn.25 & 26). Additionally, records relating to abuse and neglect investigations of children in foster care are kept separately
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by RCCL in the CLASS database. (See supra p. 141 n.43). Although CVS caseworkers have access to the CLASS database, CLASS files are not merged with IMPACT files and it is unclear whether CVS caseworkers are trained, let alone have the time, to check whether children newly transferred to their caseloads have CLASS files. (See D.E. 343 at 2). Thus, not only are foster children’s case files shockingly long (358,102 pages of case files for the 20 children for whom the Court has records), they are incredibly disorganized.
Further, inherent problems with DFPS’s outdated IMPACT system further impede caseworkers’ ability to review important electronic case file information. According to The Stephen Group, IMPACT “is not in sync with current versions of forms that are used [by caseworkers] and forces arbitrary workarounds and repetitive entry of data.” (PX 1993 at 15). This results in “delays and considerable frustration among caseworkers and can mean that those accessing the system might not have immediate availability to the most recent updates in a particular case.” Id. This creates opportunities for important safety-related tasks to “fall through the cracks,” especially when cases are transferred between workers. See id. It is unclear how easily CPS caseworkers can access their foster children’s RCCL files, and how often they do so when receiving new files. What is clear is that caseworkers’ continuously fail to maintain complete, timely, and accurate documentation. The resulting widespread neglect of important tasks relating to the safety and well-being of PMC children is indicative of a system where caseworkers’ workloads are unmanageable.
In addition to excessive caseloads placing PMC children at an unreasonable risk of harm, CPS’s work environment encourages its primary caseworkers to prioritize TMC children over PMC children. Many reports found that CPS caseworkers work in an environment permeated with a fear, making “people feel that meeting the numbers is as important as helping children and
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families.” (PX 1993 at 248). In 2013, the State Auditor’s Office found that the work environment at CPS is “unsupportive and punitive” and that CPS staff do not “feel safe to raise concerns or make complaints, fearing retaliation or punishment.” (See DX 119 at 30). The 2014 Sunset Commission echoed these findings. Id. Employees interviewed by the Sunset Commission generally described management practices at CPS as “unfair, unsupportive, bullying, unreasonable, and fear-driven.” Id. at 29. Many CPS caseworkers and managers even stated that they were concerned about possible retaliation for their cooperation with the Sunset review. Id. Because caseworkers at CPS have no way to make “complaints within the agency but outside their chain of command,” they are generally discouraged from making any workplace or program-related complaints at all. Id. at 33. According to the Sunset Commission, because of CPS’s current management structure, there is “persistent fear of retaliation among caseworkers and supervisors.” Id.
The Stephen Group made similar findings: Supervisors are driven to use metrics as a mechanism to make sure caseworkers ‘meet their numbers,’ not as a tool to balance workload, identify workers in need of training or recognize structural issues that should be resolved. This creates a culture of fear where caseworkers are focused more on meeting numbers and checking off boxes than on the quality of service for the children in families under their care. Not surprisingly, many field workers do not feel supported by their supervisors, instead feeling that there is an effort to use metrics to discipline or fire them. This adds to the stress in the workplace and ultimately reduces productivity and increases turnover. (PX 1993 at 19). One CPS employee told The Stephen Group, “Our workers are threatened and scolded more than trained and molded.” Id. at 248. In such an environment, it is only natural that overextended caseworkers prioritize TMC children who have more deadlines and concretely tracked benchmarks.
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Moreover, when a child enters PMC, courts often dismiss the child’s attorney ad litem and CASA, leaving the child with fewer stable relationships and advocates. (PX 1988 at 15; see also supra pp. 7-8). This makes the child’s relationship with his or her caseworker that much more important. According to the 2010 Texas Appleseed report:
So many resources are spent on getting the child to safety during the TMC phase that once the child has the last of his or her TMC permanency hearings, the stakeholders feel relieved of some of the pressure to get the child out of foster care. All too often, the move to PMC is viewed as a signal that the child is out of danger, damage control has been successful, the State has become the child’s parent, and the child is “in a good situation.” . . . [F]or too many children, PMC becomes a “permanent” placeholder. . . . These children essentially continue on with their day-to-day lives, receiving an increased level of attention right before the six-month placement review hearing and then back to the status quo. The judges report that these children typically bide their time until they can age out and go back home to their biological families, often harboring unrealistic but persistent hopes that “all will be fine.” (PX 1988 at 72). One judge interviewed for the Texas Appleseed study stated that foster children in PMC are “just like . . . inmate[s] serving time until they’ve reached 18.” Id. Another judge remarked that “[t]hese are the children that even God has forgotten.” Id. at 14. DFPS claims that its secondary Centralized Placement Unit (“CPU”) and I See You workers fill in the gaps left by overworked CVS caseworkers and ensure that all foster children receive appropriate care. The Court disagrees. CPU workers do not even interact with foster children. They only help find placements. (PX 50 at 16). I See You workers only visit foster children once a month when primary caseworkers are too busy or too far away. (PX 52 at 82). McCall acknowledged that I See You workers’ main responsibility, as indicated in the position title, is “seeing the child” in her placement every month to confirm that she “is still there.” (D.E. 305 at 61-63). Although I See You workers are supposed to have “meaningful discussions” with the children they visit, they often just show up at the child’s placement, ask “five questions and
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leave.” (D.E. 305 at 65; D.E. 324 at 186). For example, A.M.’s I See You worker, who visited her regularly for more than two years, asked the same 10-12 questions at every visit, and A.M. answered the same way. (See DX 120 at DFPS #828-997 (filed under seal)). According to the I See You worker’s notes, A.M. was almost always “fine” and “stable in her current placement” and the worker often noted that “things are going well for [A.M.] at this time.” Id. In reality, during much of this time, A.M’s level of care was Intense and she was repeatedly restrained by RTC staff.
Secondary workers are also “not required to follow up on any needs identified during the visit beyond communicating those needs to the primary caseworker.” (PX 2037 at 57). Nor are they responsible for children’s case planning or permanency planning. (D.E. 322 at 127). A foster child’s relationship with their secondary worker “is never quality.” (D.E. 326 at 88). Their existence—intended as a stopgap—is itself evidence of an understaffed CVS caseworker workforce, as well as DFPS’s inadequate placement array. See infra p. 222-23.
Moreover, replacing contact from primary caseworkers with contact from secondary workers inhibits primary caseworkers’ ability to form relationships with their foster children. As Burstain explained, a CVS caseworker is often a foster child’s “only continuous and stable relationship.” (PX 1871 at 1). Given that PMC children have been removed from their home and likely shuttled between placements, CVS caseworkers are one of the few people that foster children look to for support and guidance. (D.E. 326 at 85). Trust is “highly important” between a foster child and their primary caseworker because children need to feel comfortable telling them their problems. Id. As McCall testified, “especially with emotional harm[,] you need to know . . . the child before you can tell something is wrong.” (D.E. 305 at 62). Using secondary workers to shoulder excessive workloads thus hinders primary caseworkers’ ability to protect
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their children. Further, foster children often do not share their problems with secondary workers who they view as “not the real thing,” akin to substitute teachers. (D.E. 326 at 88). Dr. Miller explained that workers who have no permanent relationship with a child, such as I See You workers, cannot “win a child’s trust in a sufficient way to have the child actually reveal what is happening in the child’s life, particularly if the child is being subjected to maltreatment.” (PX 2037 at 58). Carter testified that foster children “very rarely” see I See You workers “as somebody that is there to support them” because children “intuitively know that this person is just fulfilling a service or a requirement by looking in on them.” Id.
Further, when I See You workers visit children in their placements, they often do not see individual children in private. S.A., for example, complained at one of her placement review hearings that her I See You worker “doesn’t talk to her privately.” (See DX 120 at DFPS #49459 (filed under seal)). In response she was “told to tell the worker when she does want to speak privately.” Id. Sharp testified that when I See You workers visited him while he lived in an RTC outside of his home region, the workers would see him and all other children from his region at the same time. (D.E. 325 at 167). Sharp testified that each visit lasted five to ten minutes, that none of the visits included one-on-one time between Sharp and the worker, and that none of the workers ever asked Sharp any individual questions to properly ascertain how he was doing or whether he felt safe. Id.
Moreover, the record contains numerous examples of post-visit notes by I See You workers that are superficial, confusing, internally inconsistent, or plain useless. For example, when one I See You worker visited A.M. in July 2007, that worker indicated in IMPACT that the method of contact was by telephone, yet in the contact narrative (which was barely two lines) wrote: “I met with foster parent and child all of his needs have been met.” Id. at DFPS #1046
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(emphasis added). Another time, after a July 2008 visit, a different I See You worker wrote that A.M. “was crying and was very hard to understand” during the visit and that she was “crying so much that she refuse[d] to talk. . . . .” Id. at DFPS #976. Yet in the very next line the worker concluded: “No major problems were reported. There are no concerns at this time.” Id. At least one of K.E.’s I See You workers appears to have on several occasions pre-filled the identical questions that would be asked during each monthly visit into IMPACT and then typed in K.E.’s responses: “1. Do you feel safe in this foster home? [K.E.’s] response was yes. 2. Are you pushed or hit by anyone at the foster home? [K.E.’s] response was no. 3. Are you in agreement with your continued placement at the foster home? [K.E.’s] response was yes. . . .” Id. at 1 RFP CPS 141727-29.
I See You workers have significantly more children on their caseload than primary caseworkers, which likely contributes to their cursory and rote interactions during visits. At the time of trial, Texas had 72 I See You workers. (D.E. 302 at 73). According to Black, 39% of PMC children are placed out of region. (D.E. 300 at 101). Each I See You worker thus has between 60 and 70 PMC children that they must visit each month, in addition to any TMC children on their caseload. The often cursory nature of these visits may also be attributable to the general work environment at CPS, which is focused more on compliance (i.e., “checking the box” for required actions, such as monthly face-to-face visits) rather than care. (See PX 1993 at 10-11, 14; DX 156 at 28).
As Burry explained, visits conducted by I See You workers were not the kind of wellplanned and purposeful visits that foster children require in order to achieve permanence. (See D.E. 325 at 40-41). Further, I See You workers’ inconsistent notes based on their cursory visits, which are included in children’s case files, contributed to problematic fragmentation in
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children’s casework. Id. DFPS nonetheless expects primary caseworkers to create permanency plans and goals for their foster children placed outside of their region in reliance on secondary workers’ reports, “without ever seeing the child.” (D.E. 325 at 40-41). Voelkel testified that when she was a primary CVS caseworker, she had to rely on I See You workers to conduct faceto-face visits with her out-of-region children for whom she was nonetheless entirely responsible, which caused her “frustration and stress and confusion” because she had to depend on “a middle man” whom she had never met and whom she found difficult to trust entirely. (D.E. 324 at 25). She found it particularly stressful when she had to conduct case planning or testify in court based entirely on second-hand information that she could not personally verify from a person she did not know. Id. at 24-25. B. Miller testified that she could not always trust information from I See You workers, as there were several occasions when she discovered that an I See You worker had not spent as much time with a child as the worker indicated or had not met with that child privately and thus failed to discover problems that the child may be experiencing. Id. at 55. Miller would only learn about these inadequate visits well after the fact, such as when moving a child to a different placement once the prior placement inevitably failed. Id. at 56. The Named Plaintiffs’ case files contain several instances of purported face-to-face visits between secondary caseworkers and children that other parts of the record contradict or fail to support. (See, e.g., DX 120 at DFPS #988-90 (filed under seal)) (telephone call between A.M. and her primary caseworker where A.M. explains that no I See You worker has been coming to see her). The case files also contain multiple examples of disconnect and miscommunications between primary caseworkers and I See You workers, where one would fail to provide required paperwork or information to the other, and vice versa. See e.g., id. at DFPS009043853 (e-mail from I See You
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worker to A.M.’s primary caseworker stating, “I am scheduled to do the placement first thing tomorrow morning and still have not received placement paperwork”).
Dr. Miller “cannot imagine how a primary caseworker can provide quality permanency casework when she is not visiting the children for whom she is responsible.” (PX 2037 at 58). Nor can the Court. Secondary caseworkers can surely make primary caseworkers’ jobs easier in certain respects, and can contribute to positive outcomes for children (although there is little concrete evidence of that before the Court). The record demonstrates, however, that secondary caseworkers do not compensate for DFPS’s grossly overburdened primary caseworkers. The Court finds that secondary workers are insufficient substitutes for primary caseworkers, and do not prevent Texas’s PMC children from being placed at an unreasonable risk of harm.
Even if the Court accepted secondary workers as adequate substitutes, the Court still finds that caseloads are excessive to the point that foster children are placed at an unreasonable risk of harm. DFPS already includes CPU workers and I See You workers in its caseload data (alongside caseworkers on maternity leave, caseworkers in training, and caseworkers created out of overtime hours), and those numbers reveal excessive caseloads.
Besides harming foster children in and of itself, DFPS admits, “High caseloads lead to high worker turnover, further exacerbating high caseloads.” (PX 877 at 8; see also D.E. 300 at 34, 42; D.E. 305 at 36-37, 56; PX 2037 at 12). Dr. Miller calls this the “cycle of crisis.” (D.E. 303 at 22-23). Specia admits that the “appropriate workload spread out among the workers . . . will help me keep workers.” (D.E. 299 at 82). It is no surprise then that “DFPS has an extraordinary amount of turnover.” (D.E. 305 at 55).
The Stephen Group reported that yearly CVS caseworker turnover is 26.7%, and “a major organizational burden.” (PX 1993 at 16-17, 76). To compare, turnover for workers comparable
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to Texas’s CVS caseworkers was 14% to 15% in Kentucky and 10% to 12% in Tennessee. (D.E. 303 at 28-29). The Stephen Group also noted that turnover is especially high for new CPS workers, with approximately 28% leaving within the first year, and approximately 43% within the first two years. (PX 1993 at 17-18). Likewise, Black testified that turnover is approximately 38% for first-year caseworkers. (D.E. 300 at 38-39). The Sunset Commission reported, “One out of every six new caseworkers leaves CPS within six months.” (DX 119 at 20).
Unmanageable caseloads are the main reason that CVS caseworkers leave. In a survey, 70% of the caseworkers that left listed “Workload” as the first or second reason. (PX 1993 at 306). In a 2009 article, Burstain wrote, “With respect to CVS, historically, a fairly direct relationship exists between caseloads and voluntary turnover.” (PX 1871 at 11). In support of that statement, Burstain cited data showing that when “caseloads declined 16 percent from 2006 to 2008 . . . CVS voluntary turnover declined 10 percent.” Id. Another report found that heavy caseloads “contribute[] to high turnover rates.” (PX 1964 at 9). This finding has “remained consistent from year to year.” (PX 844 at 5).
This high turnover rate means that one out of every 11 CVS caseworker positions is vacant. (DX 119 at 19). Even when those vacancies are filled, it takes “two years” for a caseworker “to fully be up to speed.” (PX 1995 at 159). During their first three months, caseworkers are in training and do not have any cases. (DX 119 at 19). Consequently, while CPS has 1980 primary caseworkers, it needs to hire more than 500 primary caseworkers per year to retain an experienced workforce of only about 1000 who actually close most of the cases. (See D.E. 305 at 41; PX 1993 at 16-17).46 This puts a tremendous strain on the 1000 veteran
46 The Court based these figures on McCall’s testimony that there are 1980 CVS caseworkers, (D.E. 305 at 41), and The Stephen Group’s finding that yearly CVS caseworker turnover is 26.7%. (PX 1993 at 76). This turnover rate
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CVS caseworks, who are the front line workers for over 29,000 foster children, which is not captured in DFPS’s figures.
Caseworker turnover has many negative impacts beyond higher caseloads. Black admitted that turnover causes delayed investigations, a lack of continuity in providing services to families and children, a lack of consistent timely visits by caseworkers to children in State custody, and significant costs to the State in terms of recruiting, training, and lost productivity. (D.E. 300 at 34, 42; see also DX 119 at 17; PX 1995 at 159). Caseworker turnover also “delays or disrupts services and the case plan” of foster children, (PX 1871 at 2), and hinders permanency planning. (D.E. 312 at 20). Moreover, as the Stephen Group explained, “workplace turnover is endemic and institutional knowledge is stripped from across the agency.” (PX 1993 at 17). The high level of turnover at CPS “represents an extraordinary organizational challenge to replace these workers and maintain a consistent level of performance.” (PX 1993 at 16). As one audit of DFPS explained, “Numerous transitions in caseworker assignments disrupt momentum toward permanency by forcing children/youth and their families to ‘start over’ repeatedly with new caseworkers.” (PX 1880 at 5). Specia admitted that foster children are “[a]bsolutely” harmed when they do not achieve permanence. (D.E. 299 at 39).
Dr. Miller explained that foster children “have already been damaged” before entering the State’s care. (D.E. 302 at 32). According to Carter, subjecting these “already fragile” children to a rotation of overburdened caseworkers only causes “despair,” “isolation,” and “helplessness.” (Id; D.E. 326 at 91; PX 2015 at 4 (filed under seal)). Instead of becoming a
means that out of the 1980 CVS caseworkers, 528 leave each year. Obviously, DFPS must hire 528 caseworkers each year to maintain staffing levels. Thus, 1056 CVS caseworkers are within their first two years and not fully up to speed, meaning that 924 CVS caseworkers handle most of the cases. (See also PX 1995 at 159; D.E. 303 at 3334) (describing these calculations for all CPS caseworkers).
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stable influence in a child’s life, foster children “don’t want to have a relationship with [caseworkers] . . . they lose confidence, they lose trust,” and see caseworkers as just a “number.” (D.E. 324 at 20-21). The 2010 Texas Appleseed report found that the high incidence of repeated turnover in PMC children’s caseworkers “contributes to the child[ren]’s difficulties in establishing trust” with their caseworkers. (PX 1988 at 67). Additionally, Texas Appleseed found that when a child’s caseworker “changes constantly or fails to make regular contact with the child, the child’s feelings of rejection are compounded and lead to feelings of distrust between the child and the ‘system,’” which “makes it all the more difficult to elicit critical information needed to ensure appropriate care.” Id. at 100. “[A] child exiting foster care in 2008 had an average of 3.87 caseworkers.” Id. at 99. The longer a child spends in foster care and PMC, the more caseworkers the child will have. Id. Children who exited care in 2008 and spent at least three years in the State’s PMC had an average of 6.39 caseworkers. Id. at 100. Texas Appleseed found that “‘[r]evolving caseworkers’ make it easy for . . . essential services and support for the child to ‘fall through the cracks.’” Id. at 68. The report also found that:
[S]takeholders in the foster care system in Texas are united in their frustration with the high rate of caseworker turnover. New caseworkers spend about six months in training before they take on a full caseload, and considering that CVS caseworkers stay in that position for such a short amount of time, it is not surprising that they often have little or no personal knowledge of the children in their care. Judges especially saw the inexperience of the CVS workers and the frequent changes in Department representation as a “big problem” or even the “biggest” CPS problem, “one that makes everyone else’s job harder.” Several commented that CVS workers did not have the training, life experience, or job experience to effectively manage their cases. Id. at 101. Carpenter testified that significant caseworker turnover was the norm for the more than 180 former foster youths with whom she has worked. (See D.E. 307 at 16). Solis, S.A.’s attorney ad litem, testified that frequent caseworker turnover is typical for the foster children he
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has represented. (D.E. 323 at 18). Virgil, who had “[a]bout 10” caseworkers during her seven years in Texas foster care, often “didn’t know who to go to” and “didn’t know who to trust.” Id. at 200. As a result, “most of the time” when she “had issues,” she kept her “mouth shut.” Id. Former foster child Jackson testified that he had between 20 and 30 primary and secondary caseworkers over his six years in Texas foster care. (D.E. 324 at 183, 185).
Likewise, former foster child Bentley did not have relationships with her caseworkers, and often did not even known who they were. (D.E. 324 at 63). Bentley, who entered foster care at the age of two and eventually aged out of care, was sexually abused in every single foster care placement but one and was constantly physically abused as well. Id. at 63, 66. Although Bentley was relieved when a caseworker would visit her placement, such visits were rare and did not occur monthly as required. Id. at 63-64. When a caseworker did visit Bentley, it would usually be in the presence of her foster parent and her abuser (often a biological or adopted child of the foster parent), which made it difficult for her to report the sexual abuse. Id. at 64. Bentley would try to hint about the abuse because she could not talk about it openly, but the caseworker would fail to notice or understand and the abuse would continue after the caseworker left. Id. Visits from Bentley’s caseworkers were often brief, “15 minutes at the most,” and her caseworkers “never had time” to connect with her or get to know her. Id. at 68. To Bentley’s knowledge, none of the physical or sexual abuse that she was subjected to was ever properly investigated, even when she was able to openly report it (which was only possible after she had been moved to a new placement). Id. at 65-67. She did not feel that there were any caseworkers that she could confide in for her safety or that any of her caseworkers could protect her. Id. at 64. Moreover, Bentley testified that during her time in care, she also observed other foster
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children suffering “a lot” of abuse. Id. Bentley testified that, per her observations, her experience was typical of children in Texas foster care. (D.E. 324 at 202-03).
Sharp, who entered care at ten years old and eventually aged out, had just two primary caseworkers during his time in care, yet he only saw them approximately “10 or 12 times in person” over eight years. (D.E. 325 at 166). Sharp did not develop a relationship with either of them, as he found it “near[ly] impossible to form a relationship with somebody that” he had only seen “two handfuls of times.” Id. He also only saw his I See You worker two or three times during the year and a half that he was at an RTC far away from his home in Region 1. Id. at 167. When I See You workers visited Sharp during that period, it was a different worker each time. Id. The workers also saw all of the Region 1 children in that RTC simultaneously as a group, with each visit lasting five to ten minutes. Id. None of those visits included one-on-one time between Sharp and the worker and none of the workers ever asked Sharp any individual questions to properly ascertain whether he felt safe. Id. Sharp was sexually abused by one of the caregivers at that RTC, as well as by another foster child. Id. at 168-69. Although he wanted to report the abuse, Sharp was unable to because the abusive caregiver was generally present when Sharp was on the phone with his caseworker. Id. at 169. Sharp also felt that no one would believe him or do anything about the abuse even if he had managed to report it. Id. Sharp was under that impression because of his lack of trust or relationship with any of his caseworkers. Id. at 170. Sharp testified that during that time he felt like he did not have anyone who cared about him and that he would have been better off dead because he “knew that [the abuse was] just going to keep happening.” Id. at 172. Sharp testified, “I don’t think you can ever go back and undo the trauma of being raped by your caregiver, of being beaten by your peers and feeling like you couldn’t talk about it and you didn’t have any hope.” Id. at 182.
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Sharp, who after aging out of foster care began to work with current and former foster youths, stated that all the young people that he has worked with who had been placed at an RTC had been abused while in care. Id. Those youths generally had experiences similar to Sharp’s: they attempted to report abuse or other safety problems in their placements but received no response or follow-up, which then discouraged them from trying to make any future reports. Id. at 170-71. Sharp also suffered physical and psychological abuse in other placements, including other RTCs, foster homes, and group homes. Id. at 171. Sharp found sexual assault between foster children to be common, especially in group homes where caregivers were simply “not able to watch everyone.” Id. at 172. Sharp described one foster group home where one young boy was sexually abused by a bigger boy “almost every night.” Id. at 172-73.
Attorney ad litem Ricker testified that “almost all” of the PMC children she has represented have been sexually abused. (D.E. 326 at 216). Carpenter testified that, for the over 180 former foster youth with whom she worked, physical, sexual, and emotional abuse in foster care was “way too prevalent” and “the norm.” (D.E. 307 at 23-24). Approximately 50% of the former foster youths that Carpenter has worked with were sexually abused in foster care. Id. at 32-33. Caseworkers for those youths also often failed to return the youths’ phone calls, even when those calls were in regard to serious issues. Id. at 17. Furthermore, the youths’ former caseworkers consistently failed to “show up” or “do what they said they’re going to do,” and some of the former foster youths did not always know who their caseworkers were. Id.
In addition to leaving PMC children without a caseworker who can effectively protect them, caseworker turnover can on its own cause psychological harm to children. According to Carter, common to the Named Plaintiffs “was a lack of relationships and contact with their CPS caseworkers and a lack of continuity in their care due to experiencing frequent changes in [their]
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CPS caseworkers.” (PX 2015 at 4 (filed under seal)). Carter has a significant amount of experience in evaluating the importance of a good relationship between foster children and their primary caseworkers. (See D.E. 326 at 85). He stated that it is “[h]ighly important” that children have a strong rapport with their caseworkers and that they feel their caseworkers understand them and “have regular contact with them.” Id. at 86. However, Carter testified that children with whom he worked rarely had a strong, trusting relationship with their caseworkers, either because the caseworkers were too busy to develop such a relationship, or due to the constant turnover of caseworkers. Id. at 86-87. According to Carter, “One of the most basic needs any child has is the sense that they are safe.” Id. at 98. However, “If a child feels that the person who is directing [her] life does not know [her], does not have contact with [her] or is everchanging, that causes [the] child to feel that her world is not a safe world,” which is “a very discouraging feeling or emotion for a child to have” and can lead to depression. Id. When foster children, who have already suffered “a disruption in their personal relationships,” experience repeated caseworker turnover it compounds their “feelings of isolation and helplessness.” (PX 2015 at 4 (filed under seal)). Carter testified that the conditions he saw in his evaluations of the Named Plaintiffs, such as psychological disturbance and “learned helplessness,” were typical for the foster care children he has worked with. (See D.E. 326 at 99-100, 114, 120-21, 125, 131-33). These conditions are generally worse in PMC children. Id. at 132-33. According to the 2007 Texas Appleseed report, “even fundamentally normal children who have been taken from their homes and families can become aggressive and ‘emotionally reactive’ due to a lost sense of trust, and their conditions are only worsened by . . . frequent caseworker turnover.” (PX 1966 at 22).
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Further, besides turnover harming the children who lose their caseworker, it also hurts children whose caseworkers remain and take over the departing workers’ cases. (D.E. 323 at 39). This situation all but assures that every PMC child is assigned an overburdened caseworker.
Specia also acknowledged that the “longer children stay in the custody of the state the harder it is for them to achieve a permanent home.” (D.E. 299 at 63, 83; see also PX 1988 at 9). Thus, another consequence of rotating overburdened caseworkers, which disrupts permanency planning, is that 1300-1400 foster children age out of the system each year. It is widely recognized that foster youths who age out generally experience poorer life outcomes. These youths leave the system with few life skills and little, if any, support. As Burstain wrote before joining DFPS, aging out of care is an outcome DFPS tries to avoid as aged-out youths “have no permanent place to call home and often have a difficult time.” (PX 1877 at 36). Burstain reaffirmed this sentiment at trial, saying that children for whom DFPS has failed to find a permanent home and who age out are “likely . . . to be harmed.” (D.E. 310 at 55). This is especially true for children who age out while living far from their home communities and support networks, often lacking the resources or ability to return. As of August 2014, approximately 60% of all foster children were placed outside their home county. (DX 183 at 4). Thus, aging out in a foreign community is commonplace. As a result, these children frequently end up homeless, participating in “criminal activities in order to survive, trespassing in vacant homes or stealing or human trafficking, prostitution, those kind of things in order to have a place to stay.” (D.E. 307 at 15; see also PX 1872 at 4).
Aged out foster youths often experience “serious, and in some cases disabling, physical and mental health care issues” and are likely to suffer from post-traumatic stress disorder (“PTSD”) due to “the traumas and frequent moves and transitions experienced in foster care.”
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(PX 1988 at 10). According to Casey Family Programs, former foster youths suffer from PTSD at nearly five times the rate of the general population and nearly twice the rate of United States combat veterans. Id. at 57, 71. In addition, aged out foster youths often have significantly lower educational attainment than their peers. Id. at 53-55, 58-59. Foster youth in general are “much more likely to be held back than their peers.” Id. at 54. This is due in part to the frequent school changes, which means they are “often absent for large parts of the school year, lose academic credits due to mid-semester moves, and often have incomplete school records due to missing transcripts.” Id. at 53-54. Foster children are also significantly overrepresented in special education classes—at a rate of over four times that of the general population—which may be an underestimate. See id. at 55. Many do not finish high school. Id. at 58. Fewer than 2% of former foster children complete college. Id. at 56.
Talley, who previously worked at DFPS as a Preparation for Adult Living coordinator, testified that the 800 former foster youths for whom she provided services, the majority of which were in PMC, were simply being “maintain[ed] in foster care until they aged out.” (D.E. 323 at 84-85). Carpenter testified that aged-out children lack independent living skills. (See D.E. 307 at 8, 13, 29-30). They do not know how to answer a phone, take or leave a message, cook a meal for themselves, or load a dishwasher. Id. They do not know how to fill out a job application, let alone drive a car to get to work. Id. at 29-30. According to Carter, none of the Named Plaintiffs who are on the cusp of aging out, or have by now aged out, “have sufficient adaptive living skills that are necessary for even a minimally reasonable chance at a decent” life. (D.E. 326 at 129). None of them were involved in any extracurricular activities at school or had any vocational training or employment experience. Id. None of them can “take care of themselves.” Id. In general, as Burstain wrote in 2009 before joining DFPS, youths who have aged out of care:
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[A]re less likely than their peers in the general population to achieve academic milestones, including high school graduation and postsecondary education, which are the foundations of self-sufficiency. These youth are less likely to be employed and, even when they are employed, are more likely to be in jobs that do not pay a living wage. They are more likely to experience violence, homelessness, mental illness, and other poor health outcomes. They are more likely to be incarcerated, to abuse substances, and to experience early parenthood out-ofwedlock. (PX 1877 at 36; see also PX 1988 at 9-10, 14). Carpenter testified that 49% of the young women who age out of Texas foster care are pregnant by the time they are 19 years old and 70% of those children end up in foster care. (D.E. 307 at 13-14). All professional standards, national standards, state standards, and anecdotal evidence this Court has heard—from both sides—are in lockstep that excessive caseloads and overburdened caseworkers cause an unreasonable risk of harm to PMC children. The Court therefore finds that DFPS’s policies and practices regarding its CVS caseworkers amount to structural deficiencies that violate the General Class’s Fourteenth Amendment right to be free from an unreasonable risk of harm. 1. DFPS is Deliberately Indifferent Toward Caseload Levels The central inquiry for determining deliberate indifference is whether DFPS was aware of facts from which the inference could be drawn that maintaining excessive caseloads created a substantial risk of serious harm to PMC children.47 See Hernandez, 380 F.3d at 882. DFPS has known for almost two decades that overburdened caseworkers cause a substantial risk of serious harm to foster children. (PX 1964 at 2, 13). DFPS also admitted, “An overloaded case worker is
47 Foster children have the constitutional right to be free from an unreasonable risk of harm. To succeed on their claim, Plaintiffs must prove that the State violated their right with the requisite level of culpability: deliberate indifference or substantial departure from professional judgment. The “substantial risk of serious harm” language from Hernandez refers to the burden, not the right. 380 F.3d at 882 (emphasis added).
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bad for the children they are supposed to protect,” (D.E. 311 at 21), and high caseloads “put[] a burden on the worker” and “can have a number of negative consequences.” (D.E. 299 at 55-56). Further, DFPS’s external consultants have told DFPS that manageable caseloads are crucial to foster children’s well-being. Numerous reports echo this sentiment. (See, e.g., PX 1966 at 11; PX 1988 at 16; PX 1880 at 16).
In addition, DFPS has long been aware that its caseloads are too high. As early as 1996, the Governor’s Committee to Promote Adoption told DFPS that it needed to reduce CVS caseworker caseloads. (PX 1964 at 10). In 2004, the Texas Comptroller issued the Forgotten Children report, finding that DFPS had several serious problems, including “heavy caseloads and high caseworker turnover that prevented the agency from performing required visits with foster children.” (PX 1966 at 5-6). That report prompted the Texas Legislature the following year to begin efforts to comprehensively reform DFPS by passing Senate Bill 6 (“SB 6”), which, inter alia, provided CPS with $250 million in additional state funding. Id. at 6. SB 6 was aimed primarily at the issue of unmanageable investigation (“INV”) caseworker caseloads, leading CPS to hire more than 3200 INV caseworkers, supervisors, and staff, and improve INV caseworker training. Id. at 6-7. SB 6, though, did not address CVS caseworker caseloads, which were also high. See id. The additional INV caseworkers resulted in CPS removing significantly more children from their homes and into State custody (from 13,431 children in 2004 to 17,547 children in 2006—a 30.6% increase). Id. at 7. This, in turn, exacerbated the already high CVS caseworker caseloads. Id. at 7-8. In 2007, Texas Appleseed told DFPS that “the problem of increasing conservatorship caseloads and inadequate conservator caseworker staffing . . . are simply getting worse.” Id. at 36.
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In 2009, Burstain published an article noting, “when caseloads are high, CVS workers may not be able to do real social work because they must spend all their time completing paperwork and complying with administrative requirements.” (PX 1871 at 11). She further stated, the “Texas legislature acknowledges that reducing caseloads is important but past legislative sessions focused on investigations.” Id. at 14. Burstain explained that “CVS caseloads are too high and above recommended standards” and recommended that caseloads “be reduced to keep paperwork manageable, allowing CVS workers to focus on helping and providing services to children and their families.” Id. at 15.
The 2010 Appleseed Report found that “CPS caseworkers were routinely handling around 30 cases, even though the national standards call for between 15 and 17 cases per worker . . . [and] caseworkers are commonly assigned 40-plus cases at a time.” (PX 1988 at 16). Moreover, the report pointed out that caseload “averages do not reflect spikes in caseloads that can occur when a co-worker goes on extended leave or quits.” Id. “Almost every stakeholder in the foster care system interviewed” for the 2010 Appleseed Report, “expressed the belief that CVS workers are overworked to the point of not being able to do their jobs properly.” Id. at 99. In addition, the 2010 Texas Adoption Review Committee said that caseworkers carry “extremely high caseloads” that are “often twice what is deemed best practice.” (PX 1964 at 9). That report went on to say, “Many of our recommendations are, sadly, ones that have been made in prior years,” including, “Reduce caseload to 15-17/worker in compliance with national standard.” Id. at 2, 13.
Also in 2010, DFPS told the Texas Legislature that it the needed to reduce caseloads for its CPS caseworkers. (PX 1286 at 15). DFPS acknowledged that decreasing caseloads would allow caseworkers to make “regular, meaningful contact with children in the substitute care
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system” and “to ensure the safety and well-being of [those children] until the permanency goal is reached.” Id. In that report, DFPS presented data indicating a correlation between decreasing “statewide average daily caseload[s]” over the prior three years and children “being seen more frequently by their caseworkers.” Id. In its Legislative Appropriations Request for Fiscal Years 2012 and 2013, DFPS acknowledged that the caseload issue was still ongoing, stating, “High caseloads cause quality casework to suffer, thus putting children in our system further at risk of harm.” (PX 878 at 105). DFPS also noted that foster child “safety is greatly improved with lower caseloads that allow workers to spend more time on each case.” Id. at 15.
Yet despite DFPS’s knowledge that it needed to reduce caseloads, between 2009 and 2013 CVS caseloads only increased. (PX 885 at 18; PX 894 at 10). In its Legislative Appropriations Request for Fiscals Years 2014 and 2015, DFPS requested additional funding from the Legislature to lower caseloads to 2009 levels. (PX 885 at 18). DFPS acknowledged that allowing caseloads to go any higher would cause “the quality of casework to suffer, . . . would impair the agency’s ability to keep children safe,” and would result “in significant . . . safety issues.” Id. Currently, though, even by DFPS’s distorted data, caseloads remain well above the maximum recommended by professional standards. According to DFPS’s stagecounting method, in 2014 CVS caseworkers in many counties averaged over 40 stages, with the worst averaging 88.3. (PX 650). Former CVS caseworker B. Miller testified that a “forty to 60” stage caseload is “typical” and unmanageable. (D.E. 323 at 34). Yet, in a memorandum to the Commissioner, McCall described the CPS program Regions 2 and 9 being “in a state of crisis” because average daily caseloads were 27.9 in Region 2 and 37.9 in Region 9. (PX 1837 at 3).
DFPS has also known for a long time that caseworker turnover poses a substantial risk of serious harm to foster children. A 2008 report by the University of Houston Graduate College of
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Social Work, produced in collaboration with DFPS, identified “Conservatorship Worker[] Issues” as an area of concern. (PX 1273 at 18). Under that area of concern, the report listed “continued turnover” as a specific weakness and “high caseloads” as a threat. Id. The Texas Adoption Review Committee, in its December 2010 report, found that high CPS caseloads contribute “to high turnover rates and reduce[] positive outcomes for children.” (PX 1964 at 9). The 2010 Texas Appleseed report found that “[c]aseworker turnover [was] high and directly impact[ed] caseload[s].” (PX 1988 at 100). In its Legislative Appropriations Request for Fiscal Years 2012 and 2013, DFPS noted that if certain already-authorized positions were not funded, average daily caseloads would greatly increase, as would turnover, “and the quality of casework would diminish, thus impairing the agency’s ability to keep children . . . safe.” (PX 878 at 13). An internal study done by DFPS in December 2012 found that two of the main factors contributing to CPS caseworker turnover were “poor working conditions and environment (safety and work-related stress)” and “workload concerns making it difficult to perform adequate work.” (PX 844 at 5, 10). In the Self-Evaluation Report that DFPS submitted to the Sunset Commission in 2013, the agency admitted that “[r]ecruiting and retaining high-quality talent” is “one of the largest challenges for DFPS” and a “long-standing concern.” (PX 1964 at 22). In its Legislative Appropriations Request for Fiscal Years 2014 and 2015, DFPS noted that “[e]ntry level direct delivery positions experience the highest rate of turnover within the agency. Protective services is a stressful job, made even more so when caseloads are high. About 29 percent of new caseworkers in the CPS program . . . leave within the first year.” (PX 885 at 19). DFPS requested additional funding at that time to “incentivize staff to remain in their job long enough to become more competent, make better decisions, and provide the staff coverage necessary to adequately protect the children . . . served by DFPS.” Id. In its Description of
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Revised Exceptional Item Requests for the FY 14-15 Biennium, directed to the House Appropriation Committee Article II Subcommittee, DFPS explained, “High caseworker turnover leads to higher caseloads, less experienced caseworkers and supervisors, and impacts quality casework and ultimately safety for the clients.” (PX 894 at 6, 7). DFPS further stated, “Caseworker turnover in all programs threatens the well-being and safety of clients.” Id. In its Legislative Appropriations Request for Fiscal Years 2016 and 2017, DFPS admitted that “[r]etention and turnover issues have impacted the ability of CPS to achieve full staffing during FY 2014.” (DX 97 at 119). In 2014, The Stephen Group noted that the issue of turnover is “[a] well-known concern across CPS that was reinforced by [The Stephen Group’s] operational review.” (PX 1995 at 7). Also in 2014, the Sunset Commission found that the “Legislature and DFPS have long been concerned with reducing chronically high caseworker turnover, which results in a number of problems that directly affect the agency’s ability to meet its mission of protecting children.” (DX 119 at 9). Yet, “CPS turnover remains significantly higher than the state agency average.” Id.
Furthermore, as high as caseworker turnover is, the reported turnover rate appears to be understated. In an article from 2009, Burstain stated that the way in which DFPS calculates turnover, by counting “how many full time, regular employees left the agency either voluntarily or involuntarily . . . is limited and does not allow for a full understanding of workforce issues and how they should be addressed.” (PX 1871 at 2). The article further states, “From a stability perspective, turnover should include every time workers with direct case management responsibilities leave their position,” which would account for not only the workers leaving DFPS but also “those who transfer to different positions within the agency, either laterally or through a promotion.” Id. The reason for this is fairly straightforward: “After all, the child or
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family does not care why the worker changed, only that they now must establish a relationship with someone new, which often delays or disrupts services and the case plan.” Id. Burstain’s article reflects that, based on DFPS-provided data, from 2006 to 2008, CPS’s total workforce turnover rates were understated by between 5% and 11% per year (accounting only for promotions). Id. Additionally, from 2006 to 2008, CPS workforce turnover, specifically for CVS workers, was further understated by between approximately 10% and 14% per year (accounting for promotions as well as for CVS caseworker transfers into other CPS units). Id. at 11. The Court has seen no evidence that DFPS has changed its method for calculating turnover since 2009.
DFPS has done little to address this problem. It has not created a caseload range, it has not hired enough primary caseworkers, and it has not instituted policies to reduce caseworker turnover. Further, 2004 is the last time DFPS conducted a work measurement study to determine what is a manageable caseload. (DX 5 at 1). In 2010, DFPS purported to “determine how many caseworkers it would take to . . . make meaningful monthly visits with all children . . . in foster care,” producing in July 2010 a 5-page report titled “What Should CPS Caseloads Look Like.” Id. According to the report, DFPS developed “a data driven staffing model” based on the figures from the 2004 study. Id. But the 2010 update does not explain or reevaluate any of the results from the 2004 study and instead makes upward adjustments of the previous figures based only on DFPS policy and practice changes that have been instituted since 2004. See id. at 1-5. The update assumed a very low vacancy rate (4%), which significantly underestimates the actual CPS vacancy rates: statewide CVS vacancy rates were 7.5% in May 2014, and significantly higher in some regions. (DX 71 at 10). The update also assumed that “the additional workers needed are trained and carrying a full caseload each year,” which is simply not consistent with reality: new
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workers, who make up 21% of all DFPS staff, do not carry a caseload for their first three months,
have a reduced caseload for the next three months, and are not fully up to speed for two years.
(D.E. 305 at 38; PX 1995 at 159). Using the adjusted 2004 figures, DFPS determined an average
daily caseload of 24.9 would theoretically allow CVS caseworkers to “make meaningful monthly
visits with all children” on their case load. (See DX 5 at 1, 4).
Yet CVS caseloads have consistently been far higher than 24.9. According to a
September 2013 Self-Evaluation Report submitted by DFPS to the Sunset Commission, during
the 2012 fiscal year, the daily caseload for CPS substitute care workers was 33.7. (DX 31 at 29).
The State’s target for average daily caseload for CPS substitute care workers for that year was
29.2, although it is unclear how that target was derived or what it was based on. Id. According
to the 2014 Sunset Commission:
DFPS bases its target caseload and the corresponding caseworker performance requirements on a workload time study conducted in 2004. This study no longer reflects current workload, however, since the Legislature has significantly increased requirements by passing major reform legislation in 2005 and 2007, in addition to other bills. DFPS itself has added new policies and practices over time, likely contributing to higher workloads for caseworkers. The State Auditor’s Office identified this same issue through an audit published in 2009, which found CPS workload measures were outdated and recommended an updated time study. However, DFPS did not implement this recommendation and continues to use the 2004 information.
Further, the measures themselves focus largely on casework output measures of timeliness that often bear only an indirect relationship to child safety and quality casework. . . . With such a heavy focus on quantity, CPS cannot accurately gauge the quality of services provided to children and families. In fact, internal reviews have illustrated that the focus on timeliness measures may negatively impact the quality of casework.
(DX 119 at 30-31).
Separately from DFPS’s failure to conduct a workload study in the past ten years, the
Sunset Commission found that DFPS does not distribute workloads equitably or consistently
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among workers, leading “to inefficiencies that increase travel time and workload, and possibly impact outcomes for children.” Id. at 32. DFPS’s failure to implement an effective and consistent method for distributing cases creates “situations like the one in Harris County, where caseworkers routinely drive across the large metropolitan area” to perform their job duties and serve their clients. Id. This is further exacerbated by supervisors “hav[ing] the discretion to distribute cases to their caseworkers however they prefer, which an internal report indicates contributes to perceptions of favoritism and unfair management practices.” Id. The resulting inequitable workload distribution48 can lead to caseworkers falling even more behind in their cases, “putting children at risk.” Id. The Sunset Commission noted, “Without a system to assign cases with both efficiency and fairness in mind, CPS will continue to struggle with caseworker retention.” Id.
In its report, the Sunset Commission recommended that DFPS “regularly do casework time studies to more accurately develop caseload goals and policies that are fair and attainable for caseworkers,” whereby DFPS would be able to “ensure that the targeted caseload and caseworker performance goals set by the agency are achievable and reasonable.” Id. at 38. The Commission further recommended that these studies be conducted once every three years. Id. In response to the Commission’s recommendation, DFPS stated that it “agrees with this directive and is already planning a time study.”49 (DX 103 at 3). DFPS also acknowledged that “[r]outine time studies are an important tool for ensuring that caseworkers are evaluated against realistic
48 Caseworkers are also sometimes penalized as a result of the uneven caseload distribution, which is entirely out of their hands. (DX 119 at 32). 49 Despite telling the Sunset Commission that DFPS was “already planning a time study,” no DFPS official could tell the Court of any concrete plans or timelines in regard to performing a CPS caseworker workload time study. (See, e.g., D.E. 313 at 20).
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job expectations.” Id. Similarly, in its April 2014 assessment, Casey Family Programs recommended that DFPS “[p]erform a detailed[] time-study analysis of DFPS caseloads and workloads in order to determine objectively whether caseworkers have manageable workloads, and to identify where additional staffing may be needed in order to reduce and eliminate . . . vacancies and assure an adequate workforce for all offices and work units.” (PX 1880 at 6).
McCall testified at trial that one of her responsibilities is “to make sure that the primary caseworkers throughout the State have manageable caseloads.” (D.E. 305 at 13-14). Part of her job is also “to analyze whether . . . caseworkers have workable or manageable caseloads.” Id. at 17-18. McCall agreed that it is necessary to examine caseloads in order to determine whether there is a problem with them, and how extensive the problem might be. Id. at 20. McCall further testified that DFPS “would shoot to make the worker’s workload be as manageable . . . as possible.” Id. at 27. Yet McCall was not able to explain at trial what methods she, or anyone else at DFPS, uses to ensure that, or even evaluate whether, caseworkers have manageable caseloads. See id. at 20-28. Instead, McCall testified that DFPS has not done any study recently “to determine how many cases a conservatorship caseworker can carry and [still] complete all” of his or her required tasks. Id. at 28. Indeed, the State has placed no limits on the caseload size that a CVS caseworker can carry, nor “established any caseload size parameters.” Id. Black confirmed that CPS has not done a “full work study” in over ten years. (D.E. 300 at 19). She also acknowledged that, since 2004, CPS has implemented “policies and practices and statutes that have added to our caseworkers’ workloads.” Id. at 20.
DFPS also points to “CPS Transformation” as a response to overburdened caseworkers. Launched in October 2014, three and one-half years after this suit was initiated and six weeks before trial, Transformation has three priorities: “developing and maintaining a professional and
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stable workforce; ensuring child safety, permanency and well-being; and establishing an effective and efficient organization and operations.” (DX 156 at 3). Like many of DFPS’s efforts the Court heard about, Transformation is promised to work because it is “completely different” than the reform efforts that came before it. (D.E. 327 at 144). The Court finds that Transformation is not a reasonable response to the problems Plaintiffs allege, and therefore does not protect Defendants from a finding of deliberate indifference. See Farmer, 511 U.S. at 844. First, Transformation was initiated mere weeks before trial, and DFPS has not shown the Court anything that proves it is working. The Court will not place blind faith in DFPS, who has ignored decades of reports that universally cite the danger of overburdened caseworkers. Second, and more importantly, Transformation does not answer Plaintiffs’ claims. Transformation will not produce an updated CVS caseworker work study, or set minimum and maximum caseload standards. (D.E. 313 at 19-20).50 Although at trial Specia stated that he planned to conduct a workload study, he did not provide a timeline for any such study and admittedly did not know what steps he would take upon the completion of the study. (See D.E. 299 at 77).
Moreover, DFPS officials, from Specia down, testified that DFPS has not adopted any national caseload standards. (See, e.g., D.E. 299 at 55; D.E. 300 at 12; D.E. 305 at 21). Dr. Miller explained that “the singularly most troubling finding regarding caseloads was the total absence of a ‘ceiling,’ that point beyond which caseloads would not be considered manageable.” (PX 2037 at 18). Yet DFPS officials testified that DFPS does not have any standards or
50 Transformation also does not address shortcomings with RCCL investigations or DFPS’s placement array. (D.E. 313 at 21; see infra Section IV.B). Nor does Transformation deal with Plaintiffs’ safety concerns in foster group homes. Id.; see infra Section IV.C.
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maximums for its caseworkers’ caseloads and that there is currently no plan to implement caseload maximums. (See, e.g., D.E. 300 at 12, 100; D.E. 305 at 21-22, 25-28; D.E. 313 at 20). Black confirmed that CPS does not “have standards[] for what the caseloads should be.” (D.E. 300 at 12). Bowman testified that she is not aware of any benchmarks, standards, maximums, or guidelines at DFPS for CVS caseloads. (D.E. 311 at 17).
Instead of responding to high workloads by implementing caseload standards or guidelines, DFPS continues to employ a reactive “squeaky wheel” approach to its caseworkers’ workloads. (See, e.g., DX 119 at 52). McCall testified that DFPS relies heavily on its front line supervisors and program directors to manage their caseworkers’ caseloads. (D.E. 322 at 59, 62). She stated that supervisors are expected to go to program directors if there is a caseload problem, and that program directors are then expected, if necessary, to convey the problem further up the chain until it eventually reaches top executives, where the problem will be resolved. Id. at 59-63. Despite multiple reports to the contrary, McCall nonetheless believes that this system “works very well.” Id. at 62. McCall acknowledged, though, that it is not “a prudent or diligent form of management to simply wait for problems to be reported” or “for something bad to happen” before taking action. Id. at 31. Black confirmed that, unless one of her direct reports brings problems to her, she “assume[s] things are going fairly well.” (D.E. 300 at 14-15). However, in CPS’s “unsupportive and punitive” work environment, staff do not “feel safe to raise concerns or make complaints, fearing retaliation or punishment.” (DX 119 at 30; see supra pp. 169-70).
The Texas child welfare system is “reactive,” meaning that it waits for problems to develop before responding to them, instead of being “proactive” in heading off predictable and preventable issues. (See D.E. 303 at 48-49, 57-58; DX 119 at 52). According to Dr. Miller, by waiting until problems develop and become significant enough to warrant attention, DFPS’s
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reactive system exposes children to unnecessary risks. (See D.E. 303 at 57-58). Dr. Miller testified that a proactive system is easier to maintain than a reactive system because it “is a lot harder to clean up a mess.” Id. at 58. The goal of a child welfare system should be “minimize the possibility that something like [a child fatality] is going to happen,” which cannot be accomplished without proactive thoughtfulness and planning. Id. The Sunset Commission found that CPS’s “inherent[ly] reactive approach” results “in a continuing cycle of crisis and criticism that distracts the agency from developing an effective” management structure, and prevents DFPS from “deliver[ing] desired results.” (DX 119 at 10). The Stephen Group found that although CPS gathers a massive amount of data, for which CPS management “has available 2,700 disparate data reports,” CPS does not have a method “to use these data to consider predictive trends and identify potential ‘hot spots’ that require intervention before a bad outcome occurs.” (PX 1993 at 18). As a result, CPS’s extensive repository of information “is useful primarily for historical analysis, not proactive decision making.” Id.
In short, CVS caseworkers are crucial to the safety and well-being of all foster children, including PMC children. They are responsible for ensuring that PMC children are reasonably safe while in the State’s custody. DFPS has known for decades that its primary CVS caseworkers are overburdened to the point where they cannot perform their required duties, namely protecting their foster children from an unreasonable risk of harm. The Court does not find that DFPS has “responded reasonably” to the substantial risk of serious harm posed by overburdened caseworkers. Farmer, 511 U.S. at 844. DFPS is therefore deliberately indifferent toward excessive caseworker caseloads.
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2. DFPS Substantially Departs from Professional Judgment Toward CVS Caseworkers Under the professional judgment standard, a decision “if made by a professional, is presumptively valid.” Youngberg, 457 U.S. at 323. DFPS argues that it has “in place a wide variety of systems to mitigate risks associated with caseworker caseloads and to assure safety of children in the General Class.” (D.E. 359 at 32). However, DFPS fails to point to any specific system. The Court has sifted through the record in search of any decision or response regarding excessive caseloads, but remains empty-handed. Perhaps DFPS is referring to the reports and audits it has commissioned, which were intended to be baselines from which DFPS could begin to improve. Again, DFPS has done little with these reports, which recommend that DFPS “Reduce caseloads to 15-17/worker in compliance with national standard.” (PX 1964 at 13). The Court does not believe that perpetuating a system that places PMC children at a substantial risk of serious harm, and that violates all professional standards, is not a “presumptively valid” response. The CWLA and the COA recommend that caseloads not exceed 15 children. Dr. Miller set a range between 14 to 17 children in Tennessee and Kentucky, with 20 as the maximum in times of crisis. DFPS caseloads far outpace these standards. Yet DFPS has done nothing to reduce caseloads, knowing all the while that foster children are harmed as a result. DFPS’s response (or lack thereof) to its caseworkers’ excessive caseloads shows “such a substantial departure from accepted professional judgment . . . that the person responsible actually did not base the decision on such a judgment.” Youngberg, 457 U.S. at 323. B. Licensed Foster Care Subclass The Licensed Foster Care (“LFC”) Subclass includes all members of the General Class who are now or will be in a licensed or verified foster care placement, excluding verified kinship
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placements. This Subclass claims two structural deficiencies. First, the State does not exercise sufficient oversight of its foster care facilities. Second, the State maintains an insufficient number, geographic distribution, and array of placements. Plaintiffs argue that both of these structural deficiencies cause an unreasonable risk of harm to LFC children. The Court agrees.
1. Insufficient Oversight Plaintiffs’ insufficient oversight allegation breaks down into two subparts. First, DFPS’s abuse and neglect investigations at its licensed facilities are deficient. Second, DFPS’s licensing and inspecting at its licensed facilities are inadequate. Separate and together, Plaintiffs argue that these failings amount to a structural deficiency in DFPS’s oversight of its licensed facilities, which cause an unreasonable risk of harm to LFC children. The Child Care Licensing division of DFPS is in charge of child day care and residential childcare operations. The Residential Child Care Licensing division of CCL is responsible for licensing and inspecting all licensed residential childcare operations, as well as investigating allegations of abuse and neglect at these facilities. Licensed operations include independent foster family homes, independent foster group homes, general residential operations, residential treatment centers, child-placing agencies, CPA foster family homes, and CPA foster group homes. (PX 41, 40 Tex. Admin Code § 745.37). Ninety percent of Texas’s placements are licensed operations. Private CPAs that contract with the State run almost 90% of the licensed facilities. RCCL is the State’s mechanism for ensuring that foster care providers meet minimum standards, keep children safe, and provide adequate care. The task is daunting. In 2013, there were 10,286 24-hour care facilities in Texas that RCCL was responsible for, and there were 4684 inspections and 5160 investigations, 1952 involving cases of abuse and neglect. (DX 119 at 90; DX 249).
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When RCCL investigates an abuse and neglect allegation, one of four dispositions follows: (1) Reason to Believe, meaning that “A preponderance of evidence indicates that abuse, neglect, or exploitation occurred”; (2) Ruled Out, meaning that “A preponderance of evidence indicates that abuse, neglect or exploitation did not occur”; (3) Unable to Determine, meaning that “A determination could not be made because of an inability to gather enough facts. The investigator concludes that there is not a preponderance of evidence that [abuse or neglect] occurred; but it is not reasonable to conclude that abuse or neglect did not occur”; and (4) Administrative Closure, meaning, “The operation is not subject to regulation; or the allegations do not meet the definition of abuse, neglect, or exploitation.” (PX 86 at 113). CCL Assistant Commissioner Morris admits that investigators and inspectors “have to make correct decisions” in their investigations, “otherwise, victims could be subject to continued risk and perpetrators could be given more opportunities to cause harm.” (D.E. 301 at 28). RCCL Director Shaw agreed: “If you don’t have a good investigative system, you can’t have a good [child welfare] system.” (D.E. 304 at 20).
The Performance Management Unit division of CCL ensures that CCL acts according to policies and procedures. It performs internal quality control. At the request of CCL leadership, PMU reviewed 85 physical abuse investigations that occurred between August 1, 2012 to July 31, 2013, which resulted in either Unable to Determine (48) or Reason to Believe (37). Regarding the UTD cases, PMU found that “31 out of 48 (64.6%) of the reviewed [physical abuse cases] were incorrectly determined as UTD.” Of the 48, 36 (75%) involved an injury, with 17 (35.4%) requiring medical attention. (PX 1129 at 3). Nine of the 17 that required medical attention—with injuries ranging from minor to critical—were incorrectly determined as UTD. Eleven of 31 (35.5%) should have been RTB. The common reasons for incorrect dispositions
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included: “Preponderance explanation was not sufficient[;] Not all parties were interviewed[;] Not all evidence was reached to support/refute findings[;] Determination did not meet the definition[; and] Risks were not thoroughly addressed.” Id. at 4. Supervisors signed off on 30 of the 31 (96.8%) incorrect dispositions. This is a systemic failure.
PMU conducted a second review of all 111 UTD dispositions for cases involving physical abuse, sexual abuse, and negligent supervision investigations over the same period. Director Shaw separately reviewed these cases as well. Their findings were even more egregious. Shaw found that 84 of 111 (75%) UTDs were incorrect. (PX 1065). Likewise, Shaw determined that 33 of 44 (75%) UTDs for physical abuse allegations were incorrect. PMU concluded that 35 of 44 (79.5%) were incorrect. Shaw also found that 31 of 38 (81.6%) UTDs for negligent supervision, and 20 of 29 (69.8%) UTDs for sexual abuse were incorrect. Id. Many of the incorrect findings should have been RTB. A typical investigation error rate for a child welfare system is 2% or 3%. (D.E. 303 at 49-50). RCCL’s is 75%. This is staggering, and it means that many abused children—for whom a preponderance of evidence indicated that they were physically abused, sexually abused, or neglected—go untreated and could be left in abusive placements. Even if by some unrelated event a child found reprieve from these facilities, the adult perpetrators can still accept new foster children with nothing in their record indicating a risk. Even with correct dispositions, however, DFPS places LFC children at an unreasonable risk of harm. After the reviews just discussed were completed, “No licenses were suspended . . . . None were revoked . . . . No penalties were established on any of these facilities . . . [and] the State didn’t move any of the children.” (D.E. 301 at 50). In short, little changed as a result of finding out that children were abused and neglected. The Court is convinced that RCCL “simply doesn’t work. It’s broken.” (D.E. 303 at 51).
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In response to discovering this 75% error rate, DFPS conducted a one-day training session for CCL supervisors and program managers to explain to them that CCL has a “very high standard” for investigations, and that their “work has to be better.” (D.E. 301 at 53-56). DFPS took no action nor made any change to RCCL investigation policies or practices. RCCL did hire two additional staff to help Shaw “focus on . . . professional development, additional training, . . . [and] child safety issues.” Id. at 55. Morris described the above actions as “a pretty robust response.” Id. at 52. Rawls-Martin testified that the DFPS Council was never apprised of the PMU reports or their findings regarding the investigation disposition error rate. (D.E. 308 at 17; D.E. 309 at 8). Rawls-Martin saw the actual PMU reports for the first time at trial. (D.E. 309 at 10). She testified that, as chair of the DFPS Council, she “would have expected to see something this serious much sooner.” Id. Rawls-Martin agreed that the findings reflected a “serious issue” at least in part because “unreliable investigations by the licensing group” potentially result in unreliable statistics and findings in regard to abuse and neglect investigations, potentially placing children at risk. Id. at 8-9. She was concerned that such a high error rate “could call into question . . . a much broader scope of investigations.” (D.E. 308 at 23).
The Court is certain that there are scores of other faulty investigations. PMU and Shaw only reviewed the 111 cases with a UTD disposition. In fiscal year 2014, only 4.2% of RCCL’s dispositions were UTD. In contrast, 91.8% of dispositions—1984 of 2161—were Ruled Out. DFPS has not sought to determine the error rate for R/O dispositions. Considering that the same investigators who made the UTD findings made the R/O ones as well, and that R/O rates in other states are around “60, 70 percent of the total,” (D.E. 324 at 132), the Court finds it likely that the R/O error rate is similar to the UTD error rate. Morris agrees. (D.E. 301 at 65). So too does Defendant’s expert on licensing, P. Wilson, who admitted that the high rate of Ruled Out
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dispositions “raised questions” for her. (D.E. 320 at 26-29). Shaw testified that she was not concerned with the R/O investigations possibly being inaccurate because she believed that “preponderance is a little more clear” in those cases. (D.E. 304 at 16). Yet Shaw had not reviewed any investigations with Ruled Out dispositions since at least 2013. Further, even if the preponderance finding is clearer in some Ruled Out cases than Unable to Determine cases, that explanation does not account for the fact that the investigators in question were failing to interview all necessary parties, ask pertinent questions, gather all evidence and key information, and address risks. (See PX 1129). As one DFPS employee stated, the “threshold in RCCL” investigations is “no Autopsy, no RTB.” (PX 1706 at 1).
Attorney ad litem Ricker testified about her experience reporting abuse and neglect in a foster care facility in Levelland. The child Ricker visited, J.R., was non-verbal, had fingernails so long that they curled forward to touch his fingers, had a purple “goose-egg” on his forehead that no one could explain, and was wearing a torn shirt and pants that he had to hold up with his hand because there was no button. The place “REEKED horribly of urine” and had “smeared feces on the wall.” (PX 2164 at 2 (filed under seal)). Ricker visited on numerous occasions, each time finding another child with a black-eye. Ricker twice reported to RCCL the abuse and neglect occurring at this facility. RCCL Ruled Out the allegation without even contacting Ricker, in violation of its policy to interview “adults who may have knowledge of the incident.” (D.E. 326 at 212-14; PX 86 at 69). RCCL made its disposition solely on information provided by the children involved, some of whom were nonverbal and intellectually disabled, and the facility’s staff. (D.E. 304 at 38-40). The facility was not cited for any violations, and J.R., as well as the other children, remained in its uncorrected care.
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Shaw agreed that these two Levelland reports were “pretty serious” and that the conditions at the RTC were not acceptable. Id. at 33, 42. Gilliam, the Regional Director for this facility, testified that those reports concerned her as well. (D.E. 312 at 48). Yet Gilliam did not know about either report until they were disclosed at trial, even though they were serious enough to have been brought to her beforehand. Id. at 49.
Despite these shocking figures and stories, the Court is certain that incidents at licensed facilities are underreported. First, LFC children often do not know to whom they should report abuse and neglect. Sharp testified from his experience as a foster child, it is “challenging to report things in the system . . . . I didn’t know [if] there was a number that I could call. Even if there was, I wouldn’t have access to it. I didn’t have anyone who I felt comfortable reporting these things to. And I think these are the feelings of most children in the system.” (D.E. 325 at 175-76). According to Sharp, “there is abuse happening all the time that simply is not being reported.” Id. Even if children knew how to report incidents, Sharp explained, many would not because they feel that foster care staff do not believe them. Sharp, who now works with foster children who age out of the system, testified, “I’ve never met a young person who stayed in a [residential treatment center] that hasn’t been abused, and hasn’t felt like they wouldn’t be able to report it and have somebody believe them.” Id. at 170. In fact, according to many foster children, reporting abuse makes the situation worse. M.D.’s next friend and attorney ad litem, Stukenberg, explained that when children complain about abuse, “sometimes the children are retaliated back against.” (D.E. 324 at 225). Stukenberg went on to say that in some facilities, “[t]here’s a mentality [that] if you outcry you’re going to pay for it.” Id. Sharp agreed, explaining, “We didn’t feel safe in placements and then nothing happened, and so, I mean – why, why would you go through . . . the process of even thinking that something would happen if you
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were to report something like this?” (D.E. 325 at 170-71). Because RCCL often does not act even when they confirm abuse, children remain in these placements, subject to retaliation. Sharp also explained that children are unable to report abuse because caseworker meetings often occur in the presence of their abusive caregiver. Id. at 167, 169. Moreover, it appears that RCCL outsources investigation responsibilities to CPAs, meaning that a child’s outcry could be investigated by the alleged abuser. Thus, the already staggering number of abuse and neglect incidents (around 2000 each year), for which there is a 75% investigation error rate, is likely much higher because foster children either do not know who to contact, do not feel that anything will be done, or fear retaliation.
One of the more shocking revelations in this case—which is saying quite a bit—is that RCCL does not track child-on-child abuse in LFC placements. Rather, RCCL investigates childon-child incidents for negligent supervision by the caregiver. (PX 1026 at 5). Consequently, there is no centralized data that shows which foster children have a history of physical or sexual abuse. (D.E. 300 at 47-48). The only place that RCCL keeps this information is in each child’s records, which are often tens of thousands of pages long, unorganized, inconsistent, and contradictory. (D.E. 328 at 154-55). This oversight is unprecedented. Dr. Miller explained that tracking child-on-child abuse is “a critically important piece of the decision making process regarding not only subsequent placements but treatment needs.” (D.E. 303 at 8). Dr. Miller “can’t imagine not tracking child-on-child abuse . . . particularly with sexually abusing kids, that information has to inform all subsequent placement decision making.” Id. at 6-7. Specia admitted that child-on-child abuse harms foster children and that DFPS should “find an appropriate way to keep track of it.” (D.E. 299 at 36). Yet DFPS does not track this “critically important” information. The obvious result is that foster children are harmed.
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The 16-year-old boy that sexually abused D.I. had a sexual abuse history himself. His father had sexually abused him, which led him to foster care. Once in foster care, in 2007 he sexually abused a younger child with special needs. This information was not in any centralized place. The 16-year-old’s case files noted the parental abuse, but not the 2007 incident. The consequence was that D.I. was placed with this boy, who forced D.I. into anal and oral sex. The abuse of D.I. was “similar to the previous incident” in 2007. As with the 16-year-old, sexual abuse often “sexualizes” a child, causing them to initiate such incidents in the future. This occurred to D.I. As if to reinforce the lunacy of not tracking child-on-child abuse, D.I.’s next foster home had another “highly sexualized” child with a history of sexual abuse. That child later alleged that D.I., who was ten-years-old at the time, tried to have sex with her. In addition, after D.I. was adopted, he engaged in sexually inappropriate conduct with his adoptive mother’s five-year-old granddaughter. Because of his experiences in foster care, D.I remains “very disturbed,” “heavily sexualized,” and “a high risk for sexually harming children.” His experience is also typical of PMC children. The evidence reveals that child-on-child physical and sexual abuse is typical, common, and widespread throughout Texas foster care. Much of this evidence comes from witnesses who themselves repeatedly experienced physical and sexual abuse at the hands of other foster children in their placements.
To be sure, when child-on-child abuse occurs, “both children are victims. Even the one we would typically call the perpetrator is him – or herself a victim.” (D.E. 303 at 8). According to Dr. Miller, it is important “that both victims get the treatment services that they need and are not placed in environments where they or other children could be [in] danger.” Id. Specia agreed, “There’s two victims in a child on child maltreatment incident,” and that child-on-child abuse “can cause tremendous harm to the children.” (D.E. 299 at 36). Specia further testified,
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“Sexually abused children can act out on other children.” Id. at 70. Likewise, Shaw agreed that “sexually abused [children] often become abusers themselves.” (D.E. 304 at 51). Shaw also testified that not knowing a child’s history of child-on-child abuse results in “a heightened risk.” Id. Yet DFPS refuses to track child-on-child abuse. Black admitted that if a foster child, who had previously sexually abused another child, is placed “into a foster group home with young children . . . no one’s going to know about it at that foster group home” because DFPS does not track that. Id. at 67. McCall, Morris, and Specia all testified to similar effect. (See D.E. 299 at 35-37; D.E. 301 at 80; D.E. 305 at 79). This places all LFC children at risk, making it impossible to assure safe placements. The Court finds that RCCL’s faulty investigations, including its decision to not track child-on-child abuse, cause an unreasonable risk of harm to all LFC children.
RCCL is also failing its licensing and inspecting duties. DFPS can choose from 13 types of enforcement actions against a licensed facility when it finds a violation. These options include working with facilities to voluntarily correct deficiencies, probations, monetary penalties, and denial, suspension, or revocation of an operator’s permit. (DX 119 at 90). DFPS, however, almost never takes an enforcement action. During fiscal year 2013, CCL oversaw 10,286 licensed residential childcare facilities. Id. Over that time, CCL cited providers for 6050 violations, but only issued 12 corrective actions and 1 adverse action. Over the past five years, CCL issued only four adverse actions against residential operations. Instead of enforcement actions, DFPS chooses “Collaborative approaches like corrective plans, probation, and evaluation periods [that] can take up to one year or longer for operations to come into compliance.” Id. at 91. In the meantime, children remain and continue to be placed in these facilities. The Court would not be concerned if DFPS’s strategy was working, but it is not. The
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Sunset Commission found that DFPS’s enforcement effort “has not helped gain compliance with requirements intended to protect children.” Id. According to the Commission, “One consequence of a more relaxed regulatory environment can be seen in a high incidence of repeat violations that can result when regulated entities perceive that they will not be held accountable for ignoring the State’s requirements.” Id. at 92. What is more, the Commission found that “[m]ost of these repeat violations occurred on the highest-risk standards.” Id. This has been going on for a long time: In 2011, PMU found that 65.6% of residential care operations had repeat deficiencies. (PX 1111 at 13). In 2012, 77.6% of residential care operations had repeat deficiencies. (PX 1074 at 12).
DFPS also fails to consistently and reasonably apply safety standards. (DX 119 at 93). According to the Commission, “certain standards that directly relate to a child’s safety should leave little room for subjectivity or error in how they are enforced.” Id. Yet the Commission found “variations in citing critical safety standards” between different regions. Id. As a result, not all children across the state are equally protected in their placements. Id. The Commission also noted that approximately 36 percent of all residential standards violations “are overturned during administrative reviews” due to inadequate investigations.51 Id. at 94.
CCL has closed one facility in the past five years, but it is a story of horror rather than optimism regarding enforcement. The Daystar facility in Manvel, Texas had a capacity of 141 children. Between 1993 and 2002, three teenagers died at Daystar from asphyxiation due to physical restraints. In most cases, the children were hog-tied. Beyond these deaths, there were reports of sexual abuse and staff making developmentally disabled girls fight for snacks.
51 Reasons that standard violations are overturned during administrative review include investigators’ failures to gather sufficient evidence and to appropriately support decisions with documentation. (DX 119 at 94).
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Numerous stakeholders, including the district attorney, spoke out against Daystar, but the facility kept its license. In November 2010, a fourth child died in what was ruled a homicide by asphyxiation due to physical restraints. Daystar’s license was still not revoked until January 2011. DFPS allowed this facility—that was responsible for four deaths, numerous allegations of sexual abuse, and unthinkable treatment of developmentally disabled children—to operate for 17 years. (See PX 2172-75). The Court understands DFPS’s concern that enforcement might affect placement availability. The Court does not understand, nor tolerate, the systemic willingness to put children in mortal harm’s way. The Court finds that DFPS’s inadequate licensing and inspecting causes an unreasonable risk of harm to LFC children.
Part of the problem, as with CVS caseworkers, is that RCCL workers are vastly overburdened. Chansuthus determined that RCCL inspectors and investigators in Region 3 would need 34 work days each month in fiscal year 2011 to complete their assigned tasks. (PX 2021 at 70). Since then, RCCL workers’ workloads have only increased. The number of licensed residential operations has remained relatively constant over the years: 10,361 in 2009 compared to 10,286 in 2013. Yet the number of RCCL caseworkers declined from 136 in 2009 to 89 in March 2014. (PX 2021 at 21). Caseloads have markedly increased as a result. In 2012, monthly caseloads averaged 9.6 per RCCL worker. In 2014, the average was 18.4 for monitoring workers and 16.3 for investigators.52 (PX 640; DX 136). As with CVS caseworkers, excessive caseloads have contributed to turnover. The yearly turnover for RCCL investigators is a staggering 41.2%. (PX 1993 at 76). RCCL recognized this crisis and asked for additional staff in its 2016-17 funding request, to “allow for the caseload to average out to a more manageable
52 In 2014, DFPS began reporting inspector and investigator caseloads separately. (D.E. 301 at 14-15).
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workload, which would help reduce risk to children placed in residential operations and promote staff retention.” (PX 898).
Chansuthus reviewed RCCL’s work and found that its caseworkers were “struggling with follow ups, they were struggling with conducting thorough risk assessments, they were struggling with doing safety plans, they were struggling with completing a number of the tasks that they were charged by their own standards and policies with doing.” (D.E. 324 at 118). Besides being full of errors, RCCL’s investigations were often late. Only 58% of investigations were completed within the required 45-day timeframe. (PX 1118). Chansuthus “attributed the deficiencies to staffing issues.” (D.E. 324 at 118). RCCL workers echo this sentiment, saying they “feel overwhelmed and unable to complete timely [investigations.]” (PX 1117 at 5).
Also similar to CVS caseworkers, DFPS has not conducted an RCCL workload study. DFPS has no idea how much time each RCCL task takes or should take. Nor has DFPS established caseload ranges for RCCL workers. DFPS does not know what is a manageable caseload. Until a workload and time measurement study is done, Chansuthus explained, RCCL “has no management basis for determining exactly what its true needs are and cannot be certain it is addressing those needs in a manner that will support quality performance.” (PX 2021 at 23). As of trial, DFPS had no plan to find out. Thus, while DFPS asked for an additional 20 inspectors, 20 investigators, 9 supervisors, 1 program manager, and 1 state office program specialist in its 2016-17 funding request, it is aiming in the dark.
In sum, the Court finds that DFPS’s insufficient oversight of its licensed foster care facilities has caused harm and an unreasonable risk of harm to LFC children.
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a. DFPS is Deliberately Indifferent Toward RCCL Operations DFPS has known for over a decade about RCCL’s faulty investigations and the substantial risk of serious harm they pose to LFC children. In 2004, a Comptroller Report mentioned investigation shortcomings as a major concern. A 2007 report reiterated the 2004 report’s worry and recommended “thoroughly investigating all complaints, allegations or reports and making the results public.” (PX 1966 at 29). In 2012, PMU reviewed 89 investigations from the year prior and concluded that 20% “should not have been approved” by supervisors because “most of those were inadequate in the preponderance explanation.” (PX 1074 at 21). A year later, PMU and Shaw reviewed the 111 UTD dispositions discussed supra, which came back with a 75% error rate. Each year there are around 5000 investigations, 2000 of which are for abuse and neglect. Due to RCCL’s systemic failures, children are left with their abusers without receiving necessary treatment, and adult perpetrators continue to house foster children with nothing indicating a risk. The substantial risk of serious harm to LFC children from faulty investigations “is obvious.” Hernandez, 380 F.3d at 881. DFPS has presented no evidence that it has acted reasonably to this known risk. Farmer, 511 U.S. at 844. Likewise, the Court finds that DFPS was aware of the substantial risk of serious harm posed by not tracking child-on-child abuse. The 2004 Comptroller Report recommended “keeping sexually abused children separate from other children; tracking and reporting the number of reports it receives concerning child-on-child physical and sexual abuse by facility.” (See PX 1966 at 29). The 2007 Texas Appleseed Report, which was given to DFPS, reiterated these recommendations. (Id.; see also D.E. 299 at 66-67). In November 2012, DFPS explained in an internal memo that “Children who are removed from their homes and brought into the foster care system are victims of abuse and/or neglect. As a result of their abuse and/or neglect,
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these victim children may display a number of inappropriate behaviors with each other in the home or at school.” (DX 21 at 1). In the same memo, DFPS said it “must focus on safety and treatment for all child victims through proper notification to all key parties of an RCCL investigation, careful monitoring, and case management intervention.” Id. at 1-2. In July 2013, DFPS again acknowledged, “Incidents involving allegations of child victimization in foster care require immediate attention from CPS.” (DX 34 at 1). At trial, experts for both parties said that children with sexual abuse histories should be placed in single-child placements. (See, e.g., D.E. 328 at 161; D.E. 329 at 161; D.E. 303 at 8). Likewise, Specia admitted that children who are known victims of sexual abuse will act out with other children. (D.E. 299 at 70). Yet DFPS does not track child-on-child abuse, which is unimaginable to other child welfare experts. (D.E. 303 at 6-7). As a result, children like D.I. unnecessarily experience abuse that affects them—as well as the children they interact with—the rest of their lives. Further, DFPS has no plans to begin tracking this “critically important” piece of information. What is more, it appears that DFPS is equipped to track child-on-child abuse, but simply refuses to do so. As recently as July 2010, RCCL investigation reports had checkboxes for “Child on Child Sexual Abuse” and “Child on Child Physical Abuse.” (See PX 185 at 46 (filed under seal)). Even though this information was not tracked in a centralized, easily retrievable fashion, it at least was noted in the RCCL CLASS records for each child. According to Morris and Shaw, however, those checkboxes are now outdated or inaccurate, and are no longer used. (D.E. 301 at 80; D.E. 304 at 45-46). The Court holds that DFPS is deliberately indifferent toward its faulty investigations, including not tracking child-on-child abuse, which causes an unreasonable risk of harm to the LFC Subclass.
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DFPS is also deliberately indifferent toward RCCL’s enforcement. A 2008 report given to DFPS listed “licensing oversight” as a problem area. (PX 1273 at 779). Yet DFPS continues to under-regulate licensed facilities. In fiscal year 2013, CCL cited licensed facilities for 6050 violations, but only issued 12 corrective actions and one adverse action. Over the past five years, CCL has issued four adverse actions against residential operations. CCL has closed only one facility in the past five years, but not until the fourth homicide. When confronted with recommendations on how to improve, CCL uniformly ignores them. For example, CCL employs risk analysts to determine “the most appropriate action for reducing the risk of harm to children in a licensed facility.” (DX 119 at 93). CCL rarely heeds their advice, and has never followed a recommendation to impose administrative penalties. Id. at 91, 93. CCL also ignores its internal quality control experts at PMU. In 2011 and 2012, CCL did not follow a single license revocation recommendation. (PX 1111 at 10, 12). As discussed supra, after PMU’s and Shaw’s review of UTD cases, “No licenses were suspended . . . . None were revoked . . . . No penalties were established on any of these facilities . . . [and] the State didn’t move any of the children.” (D.E. 301 at 50-51). The substantial risk of serious harm posed to LFC children by improperly licensed and regulated facilities “is obvious.” Hernandez, 380 F.3d at 881. DFPS produced no evidence that it has acted reasonably to respond to this risk. The Court holds that DFPS is deliberately indifferent toward its inadequate licensing and enforcement, which causes an unreasonable risk of harm to the LFC Subclass.
The Court also finds that DFPS is deliberately indifferent toward the substantial risk posed by an inadequate RCCL workforce. In 2010, RCCL staff reported that caseworker and supervisory responsibilities were “too large” and workloads too “intense” to “effectively monitor operations.” (PX 1937 at 17). Since that time, RCCL’s workforce has shrunk by over 30%
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while total cases remain the same. RCCL knows that manageable workloads “would help reduce risk to children placed in residential operations and promote staff retention.” (PX 898). Yet DFPS has not conducted a workload study of RCCL workers, established caseload ranges for RCCL workers, or determined what a manageable caseload would be. Although RCCL has asked for additional staff, the request is not grounded in any knowledge about RCCL’s or LFC children’s needs. This a step in the right direction, but without evidence of how the additional staff will correct RCCL’s systemic problems, the Court finds that DFPS’s response is not reasonable.
In sum, DFPS is aware that faulty investigations, not tracking child-on-child abuse, inadequate licensing and enforcement, and an insufficient workforce all pose a substantial risk of serious harm to LFC children. DFPS has consciously disregarded each of these risks. The Court therefore finds that DFPS is deliberately indifferent toward the LFC Subclass.
b. DFPS Substantially Departs from Professional Judgment Toward RCCL Operations
Failure to act on a 75% error rate on abuse and neglect investigations, when an acceptable average is 2% or 3%, shows an absence of professional judgment. Not tracking child-on-child abuse even though it is “critical” to foster children’s safety shows an absence of professional judgment. Issuing one adverse action for 6050 violations, contrary to recommendations by two quality control boards, shows an absence of professional judgment. Whether DFPS exercised professional judgment regarding RCCL’s workforce is the only question needing more than a moment’s contemplation.
RCCL asked for 51 more staff in its 2016-17 budget request, which would bring its workforce up to 140—up from 136 in 2009. All the evidence, however, reveals that 140 people cannot handle RCCL’s workload. Although a decision “if made by a professional, is
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presumptively valid,” the Court is convinced that DFPS’s response was “such a substantial departure from accepted professional judgment, practice or standards” that it was not based on such a judgment. Youngberg, 457 U.S. at 323.
It is commonsense that an agency should know what a manageable caseload is before it determines how many workers it needs. As the CWLA explains, “Every agency should conduct a workload analysis to determine the appropriate workload standards for its child protective services staff.” (PX 2114 at § 5.9). Completing a workload analysis gives an agency “a true picture of how much time and effort is required to do the tasks required for a specific position – and to allow [an agency] to know, given that this is how much time is required to complete these tasks, how many staff [it] need[s] to have in order to handle the work.” (D.E. 324 at 120). This does not strike the Court as revolutionary. DFPS, however, has not conducted a workload study, nor does it have plans to do so.
Furthermore, DFPS’s staffing request only returns the workforce to 2009 levels. Yet problems with investigations, licensing, and tracking child-on-child abuse began well before 2009. Virgil aged out of foster care before 2009. She testified that she was sexually abused by one of her foster families in a foster group home. When she reported the abuse, “nothing ever happened.” Id. at 200. Virgil does not know if the incident was even investigated. Likewise, Bentley entered foster care when she was two years old in the mid-1990s, and was sexually abused by foster parents and other foster children “Nonstop.” Id. at 63. Bentley was also physically abused, frequently showing up to school with bruises. She believes that people called CPS, but to her knowledge few investigations were ever done. Id. at 66-67. When investigations were done, and abuse was found, no actions were ever taken against the facilities. Id. In short, RCCL did not base its staffing request on any identifiable professional standard, and their
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proposal would only return staffing levels to a time when the problems Plaintiffs allege were rampant. The Court therefore finds that DFPS’s decision was “such a substantial departure from accepted professional judgment” that DFPS “did not base the decision on such a judgment.”
Regardless, the central inquiry is not whether DFPS exercised professional judgment in regards to RCCL staffing. Rather, it is whether DFPS exercised professional judgment in regards to RCCL’s operations as a whole. See Alberti, 790 F.2d at 1224 (“In determining the constitutional question, we need not separately weigh each of the challenged institutional practices and conditions, for we instead look to ‘the totality of conditions.’”) (citation omitted). Even if the Court finds DFPS’s staffing request valid—which it does not—an uptick in workers is not enough to cure RCCL’s systemic deficiencies. The Court has seen no evidence that 20 more investigators will cure DFPS’s 75% investigation error rate, or that 20 more inspectors will begin enforcing licensing standards when RCCL has been ignoring two quality control boards for years, or that new workers will begin tracking child-on-child abuse. Returning the RCCL workforce to 2009 levels is not a silver bullet considering that Plaintiffs other allegations were well ingrained at that time.
The Court finds that DFPS’s disregard of investigations, child-on-child abuse, enforcement, and appropriate staffing levels shows that DFPS substantially departs from professional judgment toward RCCL operations.
2. The State Maintains an Inadequate Placement Array Plaintiffs allege that DFPS has a policy of maintaining an insufficient number, geographic distribution, and array of placements. This “inadequate placement array,” as Plaintiffs call it, is a structural deficiency that forces LFC children to be placed in settings that cause an unreasonable risk of harm. The Court agrees.
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Texas policy requires that DFPS “find the best available placement option” for foster children. (PX 50 at 5). To determine that option, DFPS must consider the child’s “immediate and long-term personal needs and the child’s need for continuity, stability, and permanency.” Id. at 6. To that end, “the placement must be within the same county (or within 50 miles of the parents’ home if the home is near the county boundary line) unless an exception is justified.” Id. at 7. When appropriate, placements should be with families as opposed to group care facilities, because “Families are considered to be least restrictive settings for children.” Id. at 4. Further, “Whenever possible,” children should be placed with their siblings. Id. at 8. In short, foster children should be placed with their siblings in the least restrictive, most family-like settings available that are close to their home community. Id. at 6. Plaintiffs allege that these policies cannot be satisfied because of DFPS’s inadequate placement array.
To reiterate, Plaintiffs do not have a constitutional right to be placed in the least restrictive, most family like placement, or placed with their siblings, or placed close to their home community. Violating Texas policy does not necessarily equate with violating the Constitution. To have a cognizable substantive due process claim, Texas’s inadequate placement array must violate Plaintiffs’ right to be free from harm and an unreasonable risk of harm.
It is beyond question that DFPS’s placement array is inadequate. First, “there is an imbalance in geographic distribution of services.” (PX 1864 at 19). In other words, while some counties have excess capacity, other counties have fewer than 0.5 beds per child entering care. (D.E. 315 at 43-44). It is not just the number, but the types of placements that are also poorly distributed. When a Basic-level child enters care in a county that only has space for higher level needs children, that child will be sent away. As a result of Texas’s inadequate array, 39% of children are placed out of region and 60% are placed out of county. (Id. at 41-42; D.E. 300 at
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101; DX 183 at 4). This is a “high number.” (D.E. 303 at 90). Attorney ad litem Stukenberg testified that is typical for DFPS to “ship[] very young children all across the State, especially to emergency shelters” in search of an appropriate placement. (D.E. 324 at 216). It is also typical for foster children to sleep in CPS offices—on inflatable mattresses without sheets or pillows— because there are no available beds. (DX 18 at 1; PX 1217 at 5; D.E. 327 at 201-02). DFPS recognizes that its “imbalance in geographic distribution of services” results in “children and youth without placements,” and “children and youth placed out of their home regions due to unavailability of appropriate placement resources within their regions.” (D.E. 315 at 34-36; PX 1217 at 8-9).
Second, DFPS’s inadequate array results in “children and youth not placed with their siblings due to unavailability of appropriate placement resources.” (PX 1864 at 19; PX 1271 at 8-9). “[A]ccording to established professional standards and federal and state policy, children should be placed with their siblings unless doing so is inadvisable due to a therapeutic or safety concern.” (PX 2037 at 39). Texas policy says the same. (PX 50 at 8). Yet Texas’s foster children “are separated from their siblings at an alarming rate.” (PX 2037 at 59). As of June 2014, only 64.7% of siblings groups were placed together. (DX 142 at 1). For comparison, Tennessee places 84% of sibling groups together. (D.E. 303 at 73).
Third, foster children are placed in inappropriate facilities. Specifically, DFPS relies too heavily on congregate care facilities, which “are not conducive to supporting youth in engaging activities that help them ‘practice’ for adulthood, or to helping young people build social capital.” (PX 2037 at 38-39). As of September 2012, 13.2% of children who were age 12 or younger, and who had been in care for at least 18 months (i.e., PMC), were placed in either
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group homes or institutions. (PX 2128 at 1). The nationwide average is 4.9%. Id. Texas ranks second worst, and the State is increasing its reliance on group care settings. (D.E. 300 at 60).
Fourth, sexually aggressive children are not placed in single-child homes, the safe and appropriate placement. As discussed supra, sexually abused children often become “sexualized” and initiate abuse in the future. See p. 207. That is why, Gonzalez explained, sexually abused children should be in homes where they are the only child. (D.E. 328 at 161). Defendants’ expert P. Wilson agreed: “You look for a home where that would be the only child in that home.” (D.E. 329 at 161). DFPS, however, does not track how many single-child foster homes are available. After several prods from the Court, DFPS produced data on how many of single-child homes are in use. (See, e.g., D.E. 320 at 50-52; D.E. 328 at 164; D.E. 329 at 162). Of DFPS’s 12,000 foster homes, 262 house one PMC child, but DFPS could not say if there were other adoptive or biological children in the homes. (D.E. 330 at 127). It is unclear whether these homes were designated as single-child placements, or if that occurred by happenstance. It is also unclear if the children in these homes were placed there because of abuse backgrounds or otherwise. Defendants could not confirm how many of these homes, if any, were reserved for abused children. Considering that sexually abused children are frequently placed with other children, sometimes in the same room, the Court is certain that DFPS does not maintain enough single-child homes. See supra p. 207.
Plaintiffs also allege that DFPS’s inadequate array causes frequent placement moves. The Court, however, is not convinced. Rather, placement moves are more a product of changing levels of care or behavior issues. An inadequate array may cause an initial inappropriate placement, but the Court does not follow Plaintiffs’ logic in how an inadequate array causes additional moves. The Court does find that frequent moves are the norm among PMC children.
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As of August 2014, 28.7% of PMC children had experienced five or more placements, and 7.69% had experienced ten or more placements. M.D. had 19 placements, A.M. had 21, and K.E. had 27. Former foster child Jackson had 40 over six years. (D.E. 324 at 184). Shuttling children “from pillar to post and staying for short period of time” is undoubtedly traumatic. (D.E. 303 at 78). For example, J.S. had ten placements in seven years, some over 500 miles from his home county. He attended eight different schools, each in different counties. J.S. is now “a virtual non-reader.” (D.E. 326 at 115). According to Carter, J.S. has “severe attachment deficits” in part because “he was provided no stability whatsoever.” Id. at 114. Likewise, Carter explained that A.M. “had no sense of belonging,” in part because any time she achieved relative stability, DFPS moved her level of care improved. Id. at 122. Carter testified that the impact of frequent moves “from a psychological standpoint is potent” and that “identity disorders are rampant within that population of children.” Id. at 97, 128. Nonetheless, Texas’s inadequate placement array does not cause frequent moves. Instead, the effects of the inadequate array— placements outside of home communities, sibling separation, an overreliance on congregate care facilities, not placing sexualized children in single-child homes—are exacerbated by frequent moves. The Court now turns to whether these effects cause an unreasonable risk of harm to Plaintiffs.
When children are removed from their home communities, they are uprooted from “everything . . . that’s familiar.” (D.E. 303 at 90). DFPS policy requires home community placements because “Children and youth who have been removed from their homes have a high need for stability and continuity of care.” (PX 50 at 7). As Carter explained, removing children from their family, friends, school, and church “may disrupt existing attachments and impact a child’s ability to form new ones.” (PX 2015 at 6). A lack of stability “can be damaging to the
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psychological health and development of children in foster care,” and can lead to “any number of psychological issues including depression and defiance.” Id. DFPS’s inadequate array causes instability. It moves children “hundreds of miles away from their home communities, siblings, schools, and other supports,” “disrupting their school and family relationships.” (DX 119 at 45; PX 1877 at 32). Regional Director Bowman agreed that placing children far from home negatively affects the bonds and connections that children need to be emotionally healthy. Yet 39% of children are placed out of their home region and 60% are placed out of their home county. The combined effects of the inadequate array and frequent moves means that any stability a PMC child may gain in her initial placement is destroyed when she is relocated. For example, the Court counts at least four occasions where J.S. was sent over 200 miles to new placements. Likewise, K.E. was twice moved over 250 miles. Because K.E.’s 27 placement changes took her all over Texas, she attended at least 12 schools in ten years. Like many of the Named Plaintiffs, K.E. had to repeat grades and functions academically well below her age.
Cross-state moves also impede primary caseworkers’ ability to visit their foster children. As discussed supra, primary caseworker are foster children’s lifelines. See Section IV.A. Yet, due to a lack of funding and a lack of time, primary caseworkers “can’t go and meet with [children] face to face” when they are placed out of county or region. (D.E. 324 at 22). Thus, foster children are forced to rely on secondary I See You workers. McCall acknowledged at trial that I See You workers were created by DFPS ten years ago at least in part because children were too often being sent far from their home communities and primary caseworkers. (See D.E. 305 at 62). Although secondary workers do not protect foster children from an unreasonable risk of harm, they undoubtedly help Texas represent to the federal government that caseworkers visit children in foster care at least once per month. If the percent of children in Texas visited by
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caseworkers monthly were to drop below 90% (and after the 2015 fiscal year, below 95%), Texas would lose millions of dollars in federal aid under Title IV-B of the Social Security Act. See 42 U.S.C.A. § 624(f)(1). As discussed supra, the quality of I See You worker visits is inconsistent and often questionable. See pp. 171-76. The Court finds that moving children far from their home communities causes an unreasonable risk of harm to the LFC Subclass.
In addition, separating siblings harms foster children. Carter explained that entering foster care “is in and of itself a frightening experience.” (D.E. 326 at 119-20). When entering care, siblings often become “all one another has to rely on.” Id. at 118-19. When they “are split up for whatever reason,” foster children feel “hopeless . . . [and] helpless because even the people they came into care with, their own siblings, are no longer around to provide them support and a safety net, a sense of belonging.” Id. at 119-20. Carter also explained, “Not only do [foster] children suffer the hurt of permanent removal from adult family members, but severing them from siblings re-traumatizes them and adds further severe damage to the youth’s sense of belonging.” (PX 2015 at 10). For example, A.M. “expressed a great deal of angst over the loss of her relationship with her three younger half-siblings.” Id. In short, as DFPS recognized in 2008, “Children suffer trauma when separated from siblings.” (PX 1273 at 20). That is why DFPS policy requires keeping siblings together “Whenever possible.” (PX 50 at 8). DFPS’s inadequate array, however, forces sibling apart at an “alarming rate.” (PX 2037 at 59). Further, when siblings do separate, DFPS policy requires that sibling visits occur frequently. (PX 52 at 87). Yet former caseworkers testified that when children are placed in separate counties or regions, “arranging a sibling visit is a nightmare” because caseworkers do not have the time or the funding. (D.E. 324 at 22-23). For example, when L.H. and her six siblings were separated, the department was not able to arrange visitations in spite of the siblings crying in
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court over the separation. (D.E. 327 at 195-97). The Court finds that separating siblings at an alarming rate creates an unreasonable risk of harm to the LFC Subclass.
Inappropriate placements also harm foster children. The 2010 Texas Appleseed report found that DFPS has “a history of poor foster care placements.” (PX 1988 at 10). In part, DFPS admitted, this is because “information for matching a child to a placement is often inadequate.” (D.E. 300 at 57-58). A former primary caseworker testified that “placements would sometimes be made based on the availability of a bed rather than the appropriateness of the match.” (D.E. 323 at 45). Solis, the attorney ad litem for S.A., said CPS’s only response to poor placements is “that is the only one that’s available.” Id. at 30. Due to DFPS’s inadequate array, M.D. stayed at a facility for over a year after alleging that a staff member raped her because DFPS “didn’t have anywhere else to move her.” (D.E. 324 at 223-24).
In particular, DFPS over-relies on GROs. A GRO, also called a congregate care placement, is “a child-care facility that provides care for more than 12 children for 24 hours a day.” Tex. Hum. Res. Code Ann. § 42.002(4). GROs include RTCs, halfway houses, emergency shelters, and therapeutic camps, and may be a single building or a campus with multiple cottages. (Id.; see also D.E. 300 at 68). They are much more restrictive and less family-like than other placements. (PX 50 at 7). Dr. Miller testified that “we know” that placing children in the most family-like setting possible, as opposed to GROs, “is not only what’s best for children, it’s absolutely essential if those children are going to be whole and remain whole.” (D.E. 303 at 51-52). Professional literature reflects that congregate care placements for young children “lead to poor developmental outcomes,” and “qualitative studies have raised concerns about the negative impact of group care settings on older children, especially in terms of safety.” (PX 2037 at 54). Yet DFPS is second worst in the nation at placing young children in
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congregate care. GROs are designed to address serious therapeutic needs, which is why DFPS discourages placing Basic-level children in GROs except for short-term, emergency cases. (See PX 50 at 29-30). Nonetheless, at the time of trial, there were 356 Basic-level PMC children in non-emergency GROs. (D.E. 300 at 74-75).
DFPS’s overreliance on GROs effectively institutionalizes children that do not belong in these placements. Part of the problem is that, unlike children who live in foster family homes, children in GROs have to navigate significant bureaucracy to simply participate in extracurricular activities or spend time at friends’ houses. It took former foster child Arce “almost a year just to get a sponsor” to visit with a friend who lived outside the GRO. (D.E. 324 at 55). Further, GROs’ strict regulations keep children from learning basic life skills. Children at GROs never learn how “to use a knife to cut their food because they’re not allowed to have knives where they live.” Nor do they learn “how to make a medical appointment for themselves” or “how to answer a phone or take a message or leave a message for anybody.” (D.E. 307 at 2930). Attorney ad litem Langsley testified that D.P., who had most of her time in congregate care facilities, left foster care without knowing how to use a computer or fill out a job application. (D.E. 323 at 75). When A.M. left foster care, “She didn’t know you could go to the store and buy something. It was a foreign concept for her.” Id. at 98. In Carter’s opinion, A.M. aged out of care in a manner typical of many foster children, unprepared for “adulthood, for marriage, family life, social settings, [and] occupation.” Id. at 136, 194.
In addition to leaving foster care without basic life skills, DFPS’s inadequate array assures that many of the 1300 children who age out of care every year leave the system far from their home communities. The most tragic consequence the Court heard comes from Sharp. During his eight years in foster care, Sharp was placed in 18 or 19 congregate care settings.
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When one of his congregate care facilities in Houston was closing, the only available placement—in the entire State—was in the Panhandle where he had previously been abused. Sharp told the Court, “I decided that I would rather leave the system and just try to make it on my own so I packed some things up and I left.” (D.E. 325 at 178-79). He spent the next six months homeless in Houston, 600 miles away from his home community of Dumas, Texas, “living on top of a shopping strip,” making money by donating blood and prostitution. Id. at 178-80. When he went to donate blood a third time, “they told me I couldn’t do it anymore because I was HIV positive.” Id. at 180. Likewise, the last time M.D. was seen after she ran away from her Houston RTC, she was involved in the Houston sex trade, 200 miles from her home community in Corpus Christi.
It also appears that a corollary of inappropriate placements is overmedication. M.D., for example, was rotated between 16 psychotropic drugs while in care. Sharp explained that “Every foster child apparently has Oppositional Defiant Disorder, ADHD, a wide of things that certainly I don’t think are true.” Id. at 178. While he was in foster care, Sharp took a number of psychotropic drugs for Bipolar Disorder, Schizophrenia and ODD. Id. Soon after aging out, Sharp visited a psychiatrist who told him to stop taking his medications because he did not have those disorders. Id. Langsley testified that D.P. went through 54 placements while in foster care. (D.E. 323 at 70). As D.P. shifted through placements, her medications were “constantly being adjusted, readjusted.” Id. at 71-72. Prior to one of Langsley’s visits, D.P. was “chemically restrained,” meaning she was injected with a drug “cocktail” that a physician prescribed. Id. at 73. The physician “left it up to the staff to administer however many shots they wanted to.” Id.
Lastly, placing sexually abused children with other children in foster family homes and foster group homes causes an unreasonable risk of harm. Sexually abused children either need to
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be placed in GROs where there is strict oversight, or in single-child placements. (See D.E. 328 at 161; D.E. 329 at 161). Yet sexually abused children are often placed alongside other children in loosely regulated environments, sometimes in the same room.
In sum, the Court finds that DFPS’s inadequate array places children far from their home communities, separated from their siblings, and in inappropriate placements. The Court also finds that the “totality of conditions” causes an unreasonable risk of harm to LFC children, which are exacerbated by the frequency with which children are shuttled around the State. See Alberti, 790 F.2d at 1224. The Court holds that DFPS’s inadequate placement array causes an unreasonable risk of harm to the LFC Subclass.
a. DFPS is Deliberately Indifferent Toward its Placement Array DFPS has known about its array problems for years. In 2006, DFPS knew there were “children without placement[s].” (DX 18 at 1). By 2007, DFPS knew that it “frequently moved children from one caregiver to another.” (PX 1966 at 6). By 2008, DFPS knew that it had “placement quality and capacity issues,” including:  Children and youth without placements – children in settings supervised by
CPS due to unavailability of appropriate placement resources and/or provider rejection of the referral;  Children and youth placed out of their home regions due to unavailability of appropriate placement resources within their home regions;  Children and youth not placed with their siblings due to unavailability of appropriate placement resources; [and]  Lack of available and appropriate placement options for children and youth with challenging service needs[.] (PX 1271 at 8-9). Another 2008 report identified “sibling group issues” as an area of concern, noting an “Increased difficulty in finding appropriate homes” and that “Children suffer trauma when separated from siblings.” (PX 1273 at 20). That report also said that DFPS lacks resources in rural areas. Id. at 23. DFPS reiterated these problems in a 2010 report to the Texas
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Legislature, saying, “Finding appropriate placements for children who come into foster care remains difficult because the needs of the children do not always match the number, type, and location of the placement options available.” (PX 1286 at 23). In 2011, CPS recognized that “Too many children in foster care are placed outside their home communities away from siblings, peers, families, school, churches and support networks.” (PX 939 at 1). Specia echoed these concerns at trial. (See D.E. 299 at 39). The Court holds that DFPS was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists.”
The Court is also convinced that DFPS drew that inference. DFPS agrees “there is a causal link between moving a child far from his home community and [his] outcomes.” (D.E. 300 at 54). At trial, Black acknowledged that moving children “outside their home communities and apart from their siblings . . . lead[s] to poorer outcomes for these children.” Id. Two Directors of DFPS Regions agreed that it is “absolutely not good for children” to move away from home communities, as it makes it “more challenging” to stay connected to family and remain emotionally healthy. (D.E. 311 at 40; D.E. 312 at 34-35). The person in charge of revamping DFPS’s array explained that “placing children close to home, placing children in the least restrictive placement setting, placing children with their siblings, maintaining connections for children with those that are important to them” all have to do with “the overall safety of children in foster care.” (D.E. 328 at 182-83).
The Court also finds that the risks of harm posed by an inadequate array are “obvious.” See Hernandez, 380 F.3d at 881. The Court did not need to read a volume of studies to figure out that placing children hundreds of miles from all that is familiar, separating siblings, housing children in facilities that are inappropriate for their needs, leaving children in facilities where they have been abused, and placing sexualized children in the same room as other children
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without proper oversight, all present substantial risks of serious harm. Reading the studies that DFPS has had access to for nearly a decade, and hearing the testimony from DFPS employees, confirmed that DFPS actually knew what was “obvious.”
The remaining inquiry to determine if DFPS is deliberately indifferent is whether DFPS “responded reasonably to the risk.” DFPS points to Foster Care Redesign as its reasonable response. Launched in January 2010, Foster Care Redesign is DFPS’s solution to its inadequate array.53 (PX 969 at 3). Under DFPS’s old system or “legacy system,” the agency contracts with around 300 private CPAs for 90% of foster placements. (DX 119 at 45). DFPS directly provides the remaining 10%. Id. The legacy system uses an “open enrollment” process to procure residential childcare services, but it does not ensure that providers locate in places where services are needed, which creates the geographic imbalance in services that forces children out of their home communities. (PX 969 at 4). For example, there is no residential treatment center in Texas south of San Antonio. (D.E. 327 at 203; see also Attachment 2). Furthermore, under the legacy system, “Because very few providers have all the placement settings and services that are necessary to meet the needs of children regardless of service levels, children move from provider to provider when service levels change.” (PX 969 at 4). In other words, when children improve or decline, they are moved. The legacy system also creates perverse incentives by paying providers more money for children with higher service levels. It is therefore in a provider’s financial interest for children to not improve.
Foster Care Redesign does away with “open enrollment.” Instead of contracting with private providers to run operations wherever they choose, Foster Care Redesign contracts with
53 DFPS was clear that Foster Care Redesign is only intended to fix its inadequate array, not caseworker turnover, not RCCL investigations or licensing, and not how foster group homes are regulated. (D.E. 316 at 6).
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“Single Source Continuum Contractors (SSCC) that provide a full continuum of paid foster care services designed to meet the needs of all children who enter care in the designated [geographic] area” that DFPS chooses. Id. at 5. In this way, children will not have to relocate hundreds of miles if their service level changes. Although DFPS’s caseworkers’ responsibilities remain the same, SSCC’s are “accountable for well-being and permanency outcomes, that support placing children close to home in the least restrictive, most family-like settings.” Id. Foster Care Redesign also does away with the payment incentive structure. Lastly, Foster Care Redesign is cost-neutral, so DFPS spends no more on SSCCs than it paid providers under the legacy system.
The Court is encouraged by the idea of Foster Care Redesign, but discouraged by its results. More than five years into being, the program is active in only 2% of the counties in Texas, covering 800 foster children. (D.E. 316 at 4-5; D.E. 328 at 201). In spite of numerous recommendations, DFPS has not set a timeline or implementation schedule. (D.E. 316 at 32). In addition, DFPS has not:
 Clearly delineated and defined the case management roles and responsibilities of DFPS and the single-source continuum contractors;
 Identified training needs and addressed long-range and continuous plans for the training and cross training of staff;
 Articulated plans for evaluating the costs and tasks involved with each singlesource continuum contract procurement to better inform future resource needs;
 More formally communicated plans for evaluating the performance of contractors and the foster care redesign system as a whole; or
 Reported on transition issues resulting from redesign implementation. (DX 119 at 49-50). DFPS simply has “no roadmap for the overall effort.” Id. at 49. Until it does, “Texas remains unprepared to manage current and future foster care redesign efforts.” Id. at 50. This is particularly troubling because no other state has a similar model that DFPS can use as a guidepost. (D.E. 316 at 15-17). All told, the “foster care re-design model to outsource the administration of the foster care system is a risky endeavor.” (DX 119 at 48).
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In the five years of Foster Care Redesign, DFPS has entered only two SSCC contracts— one was an abject failure, and there is no data on the other. The first SSCC, Providence Service Corporation, was hired by Specia in spite of recommendations not to hire them “based on Inconsistencies and Areas of Risk.” (PX 978 at 11). Far from placing children in the least restrictive facilities, Providence placed more children in RTCs and emergency shelters than the providers under the legacy system. (D.E. 300 at 87). Only 57.9% of children under Providence’s management were placed in foster family homes, compared to 70.3% of children statewide, and 70.8% of children in the regions where Providence operated. (PX 937 at 3). Children still slept in CPS offices because Providence “wasn’t finding placements for them.” (D.E. 300 at 87-88). Moreover, Providence failed to place children close to their homes—the central aim of Foster Care Design. In fact, Providence only placed 29% of children within 50 miles of their home—7% below their contract baseline, and worse than the legacy system’s figures. (D.E. 316 at 17-19). Despite Providence’s abysmal performance, DFPS did not end the contract in part out of fear that Providence would sue them. Id. at 27, 29. Providence quit after a year and a half because they lost $2 million and could not make the contract work.
DFPS has only contracted with one other SSCC, but performance data is not yet available. That said, DFPS almost contracted with Lutheran Social Services of the South before the Providence contract. DFPS tentatively awarded an SSCC contract to Lutheran, but backed out at the last moment because of an adverse licensing action against them. (DX 17 at 5). Defendants could not tell the Court the reason for the adverse licensing action, though Reinhardt, the Director of Foster Care Redesign, agreed that it “could have been” related to the deaths of children in Lutheran’s care around that time. (D.E. 316 at 23-26).
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The Court holds that Foster Care Redesign is not a reasonable response to the risks associated with DFPS’s inadequate array, and therefore DFPS is deliberately indifferent. Foster Care Redesign is a proven failure that Texas has not attempted to fix. The only data available shows that Foster Care Redesign has made Texas’s placement array worse. Fewer children were placed close to home. Fewer children were placed in appropriate settings. Children were still sleeping in offices. The SSCC lost $2 million in a year and a half and quit. This is not a sustainable or reasonable program. The Court does not know why DFPS’s first instinct is to reinvent the wheel. This was displayed in its stage-counting approach, which masks caseworker workloads so that even DFPS officials do not know how many children each caseworker handles. It is also displayed in Foster Care Redesign, which is unlike any other child welfare privatization effort. The Court has seen no evidence that DFPS has tried to fix the program despite the failures with Providence. The Court cannot imagine how DFPS will fix Foster Care Redesign, let alone its placement array, if it must remain cost-neutral.
Furthermore, Foster Care Redesign has reached only 2% of Texas over five years. Even if it performed well, the Court would be pressed to find that a program with such a small reach— and no timetable for expansion—is a reasonable response to statewide problems. Further, Plaintiffs point out that after trial the House and Human Services Committee recommended that the program be put on hold. (D.E. 345 at 57). In sum, even though Foster Care Redesign may have been conceived with good intentions, it was defective and half-baked from the start. Foster Care Redesign is an unprecedented program that never addressed many critical areas, that never had an implementation plan, and that may no longer exist. With Foster Care Redesign as DFPS’s sole response, the Court holds that DFPS is deliberately indifferent toward its inadequate placement array, which causes an unreasonable risk of harm to the LFC Subclass.
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b. DFPS Substantially Departs from Professional Judgment Toward its Placement Array
The Court also finds that DFPS substantially departs from professional judgment toward its placement array. As discussed, Foster Care Redesign is a unique program. CPS testified that there is none similar. It was therefore not based on another state’s professional judgment, practice, or standard. Likewise, DFPS has never done a formal assessment of its placement needs across the State. DFPS does not know how many children are at each care level, where those children are located, or its distribution of placements for each care level across the State. Thus, DFPS does not know where and in what ways its array needs to be improved. It is not that DFPS did not think of this obvious step. A 2008 report explicitly said, “To address current substitute care placement capacity issues and meet future placement needs, a strategic plan based on a comprehensive statewide assessment of substitute care placement capacity and related services is needed.” (PX 1273 at 9). The report went on to say, “Capacity needs must be assessed by reviewing the individual needs of children and comparing their needs to the availability of appropriate substitute care placement within reasonable proximity of the children’s homes.” Id. DFPS never performed a comprehensive study. Instead, DFPS appended two pages onto a progress report, which included no figures on capacity or needs. (DX 17 at 13).
DFPS did conduct a “bed capacity analysis” in 2010, but that study only assessed the number of foster children and beds in each county. This study did not include service levels, which is crucial for placing children correctly. Nor did this study consider keeping sibling groups together. The study also depended on data from 2009, and noted that more recent data were needed. (PX 1277 at 1, 3).
In short, DFPS’s attempted fix was an unprecedented program that was not based on any data, and has proven to be a failure. While a decision made by a professional is presumptively
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valid, the Court finds DFPS’s response “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, 457 U.S. at 323.
C. Foster Group Home Subclass The Foster Group Home (“FGH”) Subclass includes all members of the General Class who are now or will be in a foster group home. Plaintiffs allege that DFPS operates its foster group homes in a constitutionally deficient manner. Specifically, Plaintiffs claim that DFPS does not properly train its FGH staff or caregivers, has an insufficient number of FGH staff, does not require 24-hour awake-night supervision at FGHs, and does not restrict the placement of unrelated children of different genders, ages, and service levels in the same home. Plaintiffs argue that these policies and practices amount to a structural deficiency that violates the FGH Subclass’s right to be free from an unreasonable risk of harm. The Court agrees. Like many of DFPS’s undertakings, foster group homes are unique to Texas. (See, e.g., D.E. 300 at 60-61). FGHs are licensed to provide residential care for 7 to 12 children. (PX 67 at 16). The limit of 12 children is supposed to include “any biological and adopted children of the caregivers who live in the foster home.” Id. at 291. It seems, however, that those children are not counted, allowing capacity to exceed 12. (D.E. 310 at 60; D.E. 326 at 25-26). As of August 2014, 932 PMC children lived in FGHs. (DX 268). FGHs appear to be a hybrid between foster family homes (that contain one to six children) and congregate care facilities like GROs and RTCs (which do not have a capacity limit), for which DFPS plucked the least-demanding standards from each type of facility. FGHs reside in a grey-area that simultaneously provides fewer benefits than foster family homes and fewer safeguards than congregate care facilities.
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It is difficult to compare FGHs to professional standards because they are unprecedented. They do “not exist in the nomenclature.” (D.E. 303 at 89). What is clear, though, is that foster care systems have stricter regulations for facilities with larger capacities because “the more children you have, the more risk that you have.” Id. at 87. Yet, for reasons that escape the Court, Texas exempts FGHs from greater regulations despite recognizing them as “group homes,” and categorizing them with congregate care facilities. (D.E. 300 at 61; PX 50 at 7). Therefore, the Court will compare FGHs to foster family homes and congregate care facilities, when appropriate, to determine if FGH children are at an unreasonable risk of harm.
Plaintiffs first allege that DFPS causes an unreasonable risk of harm by placing unrelated children of different ages, service levels, and genders together in FGHs. (D.E. 300 at 62-63, 66). As of April 2014, 64% of FGHs with seven or more children mixed foster children 12 years old and younger with at least one foster teen. Thirty-six percent of these homes mixed foster children aged five to ten with at least one foster teen. (D.E. 326 at 22). Plaintiffs’ expert on FGHs, Richter, testified that a “very high percentage of . . . younger children were being placed with older children. And we know that creates more risk.” Id. at 22-23. The Court saw evidence of FGHs with age ranges from 1 to 17, 2 to 17, less than 1 to 16, 2 to 16, 5 to 16, and 5 to 17. (PX 598). DFPS does not prohibit teenagers from sharing a bedroom with younger children. (D.E. 315 at 10-11). In addition, “there’s no prohibition, there’s no limitations, that the State of Texas puts on foster group homes between children of different service levels.” (D.E. 300 at 66). In fact, 89% of FGHs with seven or more foster children had a mix of Basic, Moderate, Specialized, or Intense service levels. (D.E. 326 at 24). Richter testified that “89% is very, very high.” Id. Further, DFPS allows for young girls and teenage boys to be placed in the same foster group home. (D.E. 300 at 63).
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Richter testified that the most significant risk to FGH children’s safety “is the fact they’re unrelated.” (D.E. 326 at 14). “There are no bonds, there are no ties; and, therefore, there’s not that instinct to protect or not harm.” Id. at 17-19. Foster family homes account for this instinct by having a lower capacity, allowing for fewer unrelated children with greater monitoring. Congregate care facilities account for this instinct by having more regulations plus greater monitoring. FGHs do not account for this instinct at all.
The most egregious problem is that FGHs lack 24-hour awake-night supervision. (D.E. 300 at 61-62; D.E. 315 at 9-10). Richter described awake-night supervision as the “minimum support that should be given” because it “can prevent children from getting up from their beds and going into bathrooms, other bedrooms for the purpose of sexual contact or aggression or bullying or initiation into the foster group home.” (D.E. 326 at 27; see also D.E. 303 at 87). DFPS requires “all the other group homes” to have 24-hour awake-night supervision, but not FGHs. (D.E. 300 at 61). As a result, you can have 12 unrelated children of different ages, service levels, and genders in a foster group home “and have the caregivers sound asleep every night of the week.” Id. at 62. There is “[n]o doubt” in Dr. Miller’s mind that this arrangement is unsafe. (D.E. 303 at 89).
Carpenter testified that, in foster group homes that mix younger children with older children, sexual abuse “is usual rather than unusual.” (D.E. 307 at 16-21; see also D.E. 324 at 202). The abuse often occurs at night when there is no supervision. Sharp explained that nighttime was “when things happened” in foster group homes. (D.E. 324 at 175). In one of his ten FGHs, Sharp said that a foster boy was “sexually abused almost every night by one of the bigger boys in the home” while the caretakers were asleep on the other side of the house. Id. at 172. Because DFPS does not regulate mixing ages in foster group homes, let alone in bedrooms,
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the abuser and the abused actually shared a bunkbed. Id. In fact, all the foster children in that group home shared one room with six bunk beds, while the foster parents and their two biological children (each of whom had a separate room) lived and slept on the other side of the house. Id. at 173. According to Sharp, it is “common” in foster group homes for the foster children to be segregated in this way from the biological family, often living in a separate building. Id. at 173-75. Similarly, when Jackson was 15, he shared an FGH bedroom with a 2year-old, a 16-year-old, and a 19-year-old. Id. at 192-93. The 16-year-old ended up in jail for physically abusing the 2-year-old. Id. Jackson, who lived in around six foster group homes, called FGHs “unconscionable.” Id. at 192. Because DFPS refuses to track child-on-child abuse, older children with histories of abuse are placed in FGHs with younger children. This is precisely what happened to 8-year-old D.I. who was repeatedly raped by a 16-year-old in a foster group home at night. The 16-year-old, who had a history of sexual abuse, knew that the caregiver was asleep and had one of the other children serve “as a lookout . . . when the children engaged in sexual activities” to make sure the foster father did not wake up. (PX 185 at 58 (filed under seal)). The Court reviewed scores of other tragic events at FGHs, including a 14-year-old boy who abused his foster parents’ biological daughter by “inserting his finger in the vagina of [the] 4-year-old and making her bleed.” (PX 495 at 254 (filed under seal)). The foster mother “later reported that two other foster children—18-year-old [mentally handicapped] female, and 13-year-old [mentally handicapped] male also reported being touched by the 14 year old foster child.” Id. at 244.
Mixing children of varying service levels exacerbates these problems. Children at different service levels have different needs. Richter testified that “when you mix service levels, you see bullying . . . when you place very aggressive or self-injurious kids in a home with
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[Basic-level] children, you now sacrifice a path for them . . . you may actually damage those children to a point that’s unconscionable.” (D.E. 326 at 17). In spite of these dangers, DFPS only requires two hours of extra transportation training for a caregiver to become certified to operate an FGH as opposed to a foster family home. (Id. at 64). Also, for some unexplained reason, DFPS requires fewer staff per child at FGHs than it does at foster family homes. In foster family homes, DFPS policy states, “A two-parent foster family home may care for up to six children,” a 1:3 ratio. (PX 67 at 219). In a foster group home, however, “The number of children one caregiver may supervise . . . is eight,” a 1:8 ratio. Id. at 221. Plaintiffs’ expert Dr. Miller testified, “It’s very difficult to monitor that many kids, especially . . . when you look at the mix of age groups and the mix of disabilities or children with disabilities—or service level needs . . . that are in those homes.” (D.E. 303 at 87). Richter explained, there is “too much going on” at foster group homes given the number of caregivers and their training. (D.E. 326 at 16-17). As a result, there are often “medication errors,” “appointments missed, forgot the court hearing.” Id.
Virgil described FGHs as “Hectic.” Her first FGH contained eight children with an age range of 5 to 16. Whenever Virgil asked her caregiver for help, she was told to “go take a nap.” (D.E. 324 at 202). Because of insufficient staff, all the children were forced to travel together anytime the caregiver ran an errand. The problem, however, is that the caregiver’s minivan only seated six. Virgil, the smallest, sat on the floor without a seatbelt. Id. at 203. Virgil testified that once when a foster child slit her wrists late on a school night, all the children had to spend the night in the hospital while the girl received treatment. Id. at 202. Sharp told the Court:
I don’t think there were any good foster group homes. I don’t think you can give children the time and attention they need [in a foster group home], particularly children who have experienced some type of trauma, which all children in foster care have. Whenever you have ten-plus kids in a home and you tend to . . . only their very basic needs and you put them all in one room and you segregate them
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from everyone else, that’s not a way to treat young people and that certainly isn’t a way to help them address the problems that they’re dealing with. (D.E. 325 at 174). According to Sharp, child-on-child physical and sexual abuse is “a common thing in the bigger homes,” because caregivers cannot monitor all their children. Id. at 172. Plaintiffs call foster group homes “A Recipe for Disaster,” and the Court agrees. (D.E. 345 at 61). It is obvious to the Court that harm would result from mixing unrelated male and female children of vastly different ages and service levels in the same home without appropriate supervision. Beyond the examples cited, the record is full of physical abuse, sexual abuse, suicide attempts, and poor supervision at foster group homes. (See, e.g., PX 372; PX 377; PX 406; PX 457; PX 495; PX 502; PX 2041 at 31-36). As such, the Court finds that DFPS’s policies and procedures for operating foster group homes amount to a structural deficiency that causes an unreasonable risk of harm to the FGH Subclass. 1. DFPS is Deliberately Indifferent Toward Foster Group Homes DFPS is aware of its policies regarding foster group homes. Black admitted that FGHs are “group homes” but DFPS “treat[s] them just like foster family homes.” (D.E. 300 at 61). DFPS also knows that no “other state in the country . . . has what is called a foster group home between seven children and 12 children.” Id. at 60-61. Although FGHs are supposed to contain no more than 12 children, DFPS admitted that it does not have centralized data on how many children, including adopted and biological, are in each FGH. (D.E. 315 at 6-7). DFPS is aware that it mixes ages, genders, and service levels in FGHs. (Id; D.E. 300 at 62-63). The State admitted that, because it also does not track child-on-child abuse, older children with sexual abuse histories could be placed in the same FGH bedroom as younger children. (D.E. 300 at 67). Further, DFPS knows that “all the other group homes in the State . . . require 24/7 supervision,” but FGHs do not. Id. at 61-62.
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In addition to being “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” the State has drawn that inference. Black admitted that she would not allow her own young children to sleep in the same room as older teens with the caregiver asleep, as it is “scary” and “inappropriate.” Id. at 64-65. DFPS said in a 2013 SelfEvaluation Report to the Sunset Commission that there are “risks associated with having seven to 12 children in one home” including “risks associated with providing appropriate overall supervision, ensuring individualized attention to each child’s specific needs, and managing stress when caring for large numbers of children in a foster group home.” (PX 1864 at 235). Even without these admissions, the Court finds that “the risk of harm is obvious” when you place unrelated children of different ages, services levels, and genders in the same facility, without nighttime supervision or a sufficient number of trained staff.
DFPS has presented no evidence that it tried to correct these known harms. There has been no response to FGHs’ shortcomings, let alone a reasonable one. DFPS “exhibited a conscious disregard” for known severe abuses, which “by itself sufficiently demonstrates deliberate indifference to a child’s right to personal security.” Hernandez, 380 F.3d at 881. As such, the Court holds that DFPS is deliberately indifferent toward FGHs’ structural deficiencies, which cause an unreasonable risk of harm to FGH children.
2. DFPS Substantially Departs from Professional Judgment Toward Foster Group Homes
DFPS’s actions defy the professional judgment standard. It is impossible to determine which DFPS policies violate professional standards because there are no FGH professional standards, period. That said, a review of professional standards for all foster facilities convince the Court that DFPS’s foster group home operation is a “substantial departure from accepted professional judgment, practice, or standards.” Youngberg, 457 U.S. at 323.
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All professional standards reviewed by the Court advocate 24-hour awake-night supervision in group homes. The CWLA recommends having staff “scheduled, on site, available and awake 24 hours per day when children are present.” (PX 2 at 2-5). The CWLA also says that, for group homes, there should be “24-hour access” to “medical services” and “psychiatric services,” meaning that “the residential service provider can contact a person or facility and obtain the needed service at any time, 24 hours per day.” Id. at 10. COA standards require continuous supervision by staff “available on a 24-hour basis,” and, “Personnel must be awake at all times unless convincing evidence demonstrates” that a particular home does not need nighttime supervision. (PX 32 at 61). The COA also requires that a “physician or other qualified medical practitioner assumes 24-hour on-call medical responsibility.” Id. at 37. Richter testified that for foster group homes, “the minimum support that should be given, in my opinion, is awake night supervision,” and on-call medical and psychiatric personnel are “very, very important.” (D.E. 326 at 27, 29). In Richter’s opinion, on-call medical and mental health staff, as well as 24hour awake-night supervision “are basic accepted things that you do.” Id. at 31. DFPS itself demands 24-hour awake-night supervision for “all other group homes.” Yet DFPS exempts FGHs from a nighttime supervision requirement. DFPS also does not require FGHs to have oncall medical and mental health support staff. Id. at 30-31.
It should be noted that DFPS’s disregard of professional standards overburdens FGH caregivers, which in turn harms FGH children. (Id. at 16, 24; see also D.E. 303 at 87). The Court strongly agrees with the report and testimony of Richter, who explained, “if you have 7 to 12 children in a home, you have to really attend to the caregivers, support them, give them the kind of training and support they need, or bad things are going to happen. And when caregivers aren’t taken care of, then the kids aren’t.” (D.E. 326 at 13). DFPS offers no extra support for
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FGH caregivers. The only extra training DFPS provides is two hours for transportation training. Further, for some unknown reason, DFPS allows an 8:1 child to staff ratio in FGHs as opposed to the 3:1 ratio in foster family homes. FGHs “stretch caregivers beyond their ability,” and FGH children do not receive adequate supervision—day or night. Id. at 13, 16. In short, Richter believes that the foster group home model:
Has the risks of traditional group care (e.g., problems that come with mixing a high number of unrelated children in one home/setting, including child-on-child victimization, contagion of negative behaviors, police contacts), but none of the perceived benefits . . . (e.g., educational and training requirements for caregivers, strict adherence to and [sic] personnel resources to retain proper supervision ratios and awake-night supervision); and Has the risks of typical family foster homes where caregivers receive only basic state agency-mandated training to meet the needs of children . . . but has only severely compromised benefits of living in a family setting in the community, which promotes normalcy, as a result of the high number of unrelated children living together. (PX 2041 at 10). Richter concludes that “foster group homes operated by [DFPS] deviate from professional standards and, as currently structured, expose all children placed in those homes to serious risk of substantial harm.” Id. at 6, 22. The Court agrees. The Court has seen no decision by DFPS—professional or otherwise—to address the litany of problems with FGHs. Although FGH professional standards do not exist, the Court finds that DFPS has violated a number of relevant professional standards as laid out by professional organizations, Plaintiffs’ experts, and DFPS itself. The Court holds that DFPS’s policies and practices toward foster group homes “are such a substantial departure from accepted professional judgment, practice, or standards” that DFPS did not base its decision on any professional judgment at all.
V. REMEDY Plaintiffs have proven, by a preponderance of the evidence, that DFPS’s policies and practices amount to structural deficiencies that cause an unreasonable risk of harm to all class and subclass members. In order to obtain injunctive relief, Plaintiffs must also show: “(1) that
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[they] suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” See, e.g., eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion.” Id. Equitable relief is “limited by considerations of federalism, and remedies that intrude unnecessarily on a state’s governance of its own affairs should be avoided.” Ass’n of Surrogates & Supreme Ct. Reporters Within City of N.Y. v. State of N.Y., 966 F.2d 75, 79 (2d Cir. 1992). “Courts nevertheless must not shrink from their obligation to enforce the constitutional rights of all persons . . . simply because a remedy would involve intrusion into the realm of [government] administration.” Brown v. Plata, 131 S.Ct. 1910, 1928 (2011) (citation omitted). The Court finds that injunctive relief is appropriate in this case.
Plaintiffs may satisfy the first two factors by proving that they are “likely to be deprived of their constitutional rights in the future by the acts they seek to have enjoined.” Floyd v. City of N.Y., 959 F. Supp. 2d 668, 672 (S.D.N.Y. 2013); see also Springtree Apartments, ALPIC v. Livingston Par. Council, 207 F. Supp. 2d 507, 515 (M.D. La. 2001) (“It has been repeatedly recognized by the federal courts that violation of constitutional rights constitutes irreparable injury as a matter of law.”) (citing Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (plurality opinion) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”)). Texas has violated Plaintiffs’ Fourteenth Amendment right to be free from an unreasonable risk of harm. Remedies besides injunctive relief—which Plaintiffs have not requested—could not compensate for the repeated exposure to
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physical abuse, sexual abuse, and psychological abuse. Until Texas’s structural deficiencies are cured, Plaintiffs will be harmed.
The balance of hardships also tilts strongly in favor of granting injunctive relief. The burden on the Plaintiffs from continued unconstitutional harm far outweighs any administrative hardship Texas will face in correcting its foster care system. The Court is sensitive to the State’s interests in controlling its core functions amidst administrative constraints. Having chosen to operate a foster care system, however, Texas is obligated to comply with the dictates of the Fourteenth Amendment. It is worth noting that funding is not a problem for DFPS. The Texas Legislature has been responsive to DFPS’s needs. According to Specia, “when the State had money, [DFPS] got substantial amounts of money. When the State didn’t have money, [DFPS] had fewer cuts than other people did.” (D.E. 300 at 26; see also D.E. 331 at 32-37). Burstain also testified that “the legislature has been very supportive and aligned with CPS,” allocating significant resources to support CPS’s requests. (D.E. 330 at 176). Budgetary constraints, which do not absolve constitutional violations, nonetheless do not exist here.
Lastly, the public interest would not be disserved by injunctive relief. To the contrary, as the system currently stands, foster children often age out of care more damaged than when they entered. (PX 1964 at 2) (“there is increasing evidence to show that our foster care system is sometimes doing more harm to our children than good”). Years of abuse, neglect, and shuttling between inappropriate placements across the State has created a population that cannot contribute to society, and proves a continued strain on the government through welfare, incarceration, or otherwise. Although some foster children are able to overcome these obstacles, they should not have to. The public interest will not be harmed by an injunction requiring Texas
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to conform its foster care system to the Constitution. With all four factors met, the Court holds that injunctive relief is appropriate in this case.
“[T]he scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971). That said, “judicial powers may be exercised only on the basis of a constitutional violation . . . . As with any equity case, the nature of the violation determines the scope of the remedy.” Id. at 16. In fashioning a remedy, the Court notes the decades of reports aimed at fixing DFPS, and the corresponding lack of meaningful attempts at improvement.
A. Injunction The State shall establish and implement policies and procedures to ensure that Texas’s
PMC foster children are free from an unreasonable risk of harm. To effect this injunction, the Court will appoint a Special Master to help the State implement the Goals outlined below. Further, the State shall immediately stop placing PMC foster children in unsafe placements, which include foster group homes that lack 24-hour awake-night supervision. Foster group homes that immediately require 24-hour awake-night supervision may continue to operate while the Special Master and the State craft and enforce the Implementation Plan.
B. Appointment of a Special Master Because of the complexity and breadth of reforms that are required to bring DFPS in
compliance with the Constitution, it would be impractical for the Court to craft and oversee each necessary change. As a more effective and flexible alternative, the Court will appoint an independent Special Master to help craft the reforms and oversee their implementation. See Floyd, 959 F. Supp. 2d at 676. The State will fund the Special Master, though the Court believes that by facilitating early and unbiased detection of non-compliance and barriers to compliance,
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the Special Master will ultimately save the State time and resources. The Special Master will operate in close coordination with this Court, which retains jurisdiction to issue orders as necessary to remedy the constitutional violations described in this Opinion. To select a Special Master:
(1) Within 30 days of this Opinion, the Court will hold a hearing to select a Special Master. At the hearing, the parties will present the Court with an agreed-on Special Master who is an expert in a field relevant to foster care systems, along with that person’s curriculum vitae (“CV”). The agreed-on Special Master must attend this hearing. If the parties cannot agree on a Special Master, each party will present the court with two candidates and their CVs. The Court will choose one Special Master out of the four options. The four candidates must attend this hearing if the parties cannot agree on a Special Master.
The functions of the Special Master: (1) Within 180 days of selecting a Special Master, the Court will hold another hearing where the Special Master will present the Court with an Implementation Plan to reform Texas’s foster care system. In crafting the Implementation Plan, the Special Master shall have access to all relevant information, records, personnel, and reports, and shall have the authority to require reports that would be helpful. The Special Master shall assure that the Plaintiffs and Defendants have a full opportunity to consult and be involved with the development of the Implementation Plan, though the Special Master must ultimately be guided by the Goals listed below, which are aimed at addressing the State’s constitutional violations. The Special Master shall be mindful that Texas does not need to provide a perfect foster care system; just one that no longer violates the Constitution. The provisions in the proposed Implementation Plan will be viewed as recommendations.
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The Court will hear the parties’ objections to the proposed Implementation Plan at this hearing, and decide which, if any, provisions to accept. If the Court finds any parts lacking or any constitutional violation unaddressed, the Court will ask the Special Master to present additional provisions at a later date. (2) The Implementation Plan shall include:
(a) Implementation Dates. The Plan shall contain final implementation dates by which each provision will be fully implemented. The plan shall also include interim dates, prior to the final implementation date, by which each provision shall be partially implemented, and shall specify the degree of implementation required by each of the interim implementation dates for each provision. Provisions should be implemented at the earliest time practicable. Any need to prioritize implementation will be motivated by which provisions best address the State’s constitutional violations.
(b) Implementation Steps, Processes, and Tasks. The Plan shall specify the steps and tasks necessary to achieve full implementation and to meet the interim and final implementation dates. The Plan shall designate timelines by which the steps and tasks are to be accomplished and shall designate appropriate staffing levels and personnel to assure timely implementation of the Plan. The Plan shall also identify who shall be responsible for the steps and tasks, including outside contractors. This portion of the Implementation Plan shall be updated every six months, and the updates shall list tasks accomplished and additional steps and tasks that may have been identified as additionally necessary to achieve full implementation. The updates shall include timelines for interim and full
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implementation, as well as the designation of personnel for these additional steps and tasks. (3) Upon accepting the Implementation Plan, the Court will enter a Final Order incorporating the provisions of the Implementation Plan that is binding on the parties. The Final Order shall be enforceable by the Court. (4) After the Court enters the Final Order, the Special Master shall issue a report every 180 days concerning the status and progress made by the Defendants toward compliance with the Final Order. The Special Master’s reports shall be provided to the parties and the Court. (5) The Special Master and the parties shall not disclose any individually identifiable information concerning children, their parents, or their foster or adoptive parents. All reports concerning compliance with the Implementation Plan, the status of children, and compliance with the Final Order that do not contain individually identifiable information shall be public information. (6) The Special Master shall be responsible solely to the Court, but shall work actively with the parties to assure the effective and prompt implementation of the Court’s Final Order. (7) The Special Master shall serve until the Court determines, upon Defendants’ application, that the Special Master is no longer necessary. C. Goals In General: (1) When DFPS staff visit or call a foster child, the caregiver must allow the staff member and the child to speak privately, unless the staff member agrees that it would be unsafe.
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If the meeting was not conducted in private, the staff must explain why in the child’s case files. (2) DFPS paperwork and electronic filing system, including IMPACT, CLASS, and the External files, must become more efficient. Each child should have a readily accessible and organized case file, comprised of all records pertaining to that child. The Court was routinely frustrated at the disorganization, duplication, and inconsistency in the foster children’s case files. Caseworkers should be able to spend more than 26% of their time with foster children. (3) DFPS shall include an updated portrait photograph of each child in their respective case files. The Special Master will recommend how frequently the photograph must be updated. Each photograph shall include the date it was taken, and be organized and easily retrievable in the case files.54 (4) DFPS shall establish, staff, and maintain a 24-hour hotline for receiving and responding to reports of abuse and neglect. The hotline’s phone number must be readily available and displayed prominently in all foster care residential facilities. Foster children must be allowed telephone access to reach out to this 24-hour system, free from observation. (5) DFPS shall improve its programs and outreach for children who will age out of foster care so that more children take advantage of these programs.
54 The frequency of runaways while in DFPS care necessitates the availability of a recent photograph. Although DFPS policy already requires an annual photograph, (See PX 52 at 91), the fact that no one at DFPS knew what M.D. looked like is troubling. See supra pp. 68-69. Obviously, the age of the child will dictate the frequency with which the photograph is updated. For example, an annual photograph for an infant might not be helpful.
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(6) All PMC children shall be entitled to an attorney ad litem and a CASA volunteer, as well as any other representative appointed to TMC children that the Special Master determines is necessary for PMC children’s safety and well-being.
(7) The Special Master shall recommend any provision beyond the Court’s Goals that are deemed necessary to cure the State’s constitutional violations outlined in this Opinion.
CVS Caseworkers: (1) DFPS must track primary CVS caseworker caseloads on a child-only basis. The Special Master shall recommend whether tracking should be categorized separately for full-time and part-time primary CVS caseworkers, and how tracking should be categorized on a region and county-level. The State cannot include in the calculations secondary workers, workers in training, or fictive workers created out of overtime. The State is welcome to continue tracking caseloads by stages, but not in lieu of child-only tracking. (2) DFPS must complete a Workload Study to determine the time required for caseworkers to adequately perform their tasks. DFPS will specify how long it takes to complete each task. The Special Master shall recommend how frequently DFPS must complete additional workload studies. (3) The Special Master shall recommend the point at which caseloads are manageable for full-time and part-time CVS caseworkers, taking into account times of crises. What is manageable is to be understood as the level at which caseworkers are able to perform their basic functions and not compelled to quit at an unreasonable rate. In other words, a manageable caseload is the level at which children are free from an unreasonable risk of harm.
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(4) DFPS must hire and maintain enough primary CVS caseworkers to ensure that caseloads are manageable in each county in the State.
(5) DFPS must significantly lower its primary CVS caseworker turnover rate. (6) The Special Master shall evaluate and recommend whether secondary CPU and I See
You workers should be maintained. If so, the Special Master shall recommend provisions to make them more effective at protecting foster children from an unreasonable risk of harm. (7) The Special Master shall recommend other provisions deemed necessary to ensure that primary CVS caseworkers are able to protect foster children from an unreasonable risk of harm. CCL Investigations, Inspections, and Licensing: (1) DFPS must complete a Workload Study to determine the time required for investigators and inspectors to adequately perform their tasks. DFPS will specify how long it takes to complete each task. The Special Master shall recommend how frequently DFPS must complete additional workload studies. (2) The Special Master shall recommend the point at which caseloads are manageable for investigators and inspectors. What is manageable is to be understood as the level at which investigators and inspectors are able to perform their basic functions. In other words, a manageable caseload is the level at which children are free from an unreasonable risk of harm. (3) PMU must conduct case readings to assess RCCL investigations in a manner and at a frequency deemed appropriate by the Special Master. The Special Master will
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recommend the appropriate method to correct dispositions and order corrective actions when PMU identifies deficiencies. (4) The Special Master shall recommend provisions to solve RCCL’s unwillingness to institute corrective actions against violating facilities. (5) DFPS shall track child-on-child abuse, and categorize it as such. The Special Master shall recommend the most appropriate fashion to track child-on-child abuse bearing in mind that the information should be easy to retrieve and should be used to inform all placements and treatments. The Special Master shall also recommend how to categorize the initiators of child-on-child abuse, sensitive to the consequences of labeling children as “perpetrators.” The Special Master shall also recommend if child-on-child abuse should simultaneously be categorized as neglectful supervision by the caregiver. (6) The Special Master shall recommend other provisions deemed necessary to ensure that RCCL protects foster children from an unreasonable risk of harm. Inadequate Placement Array: (1) DFPS shall not allow unrelated children that are more than one service level apart (e.g., Moderate and Intense-level children) to be placed in the same room in any residential facility. The Special Master shall recommend if it is appropriate to allow unrelated children that are only one service level apart (e.g., Basic and Moderate-level children) to be placed in the same room in any residential facility. (2) The Special Master shall recommend what age ranges of unrelated children are appropriate to be placed in the same room in any residential facility. The Court understands that larger age gaps may be more appropriate for younger children (e.g. a
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five-year-old and a ten-year-old in the same room) than for older children (e.g. a tenyear-old and a 15-year old in the same room). (3) DFPS shall track how many placements in its array are designated as single-child homes (including biological and adopted children), and track how many foster children need single-child homes. DFPS shall explain its criteria for determining which children need single-child homes. DFPS shall ensure that all children who need single-child homes are placed in such homes, unless it is in the child’s best interest to remain with siblings or be supervised at a congregate care facility. If a child who needs a single-child home is not placed in such a home, the child’s primary CVS caseworker must explain why in the child’s case files. (4) DFPS shall conduct a formal statewide needs assessment to determine an adequate placement array, including by number, geographic distribution, and placement type. DFPS must procure a placement array that substantially matches this assessment, and place children appropriately. The Special Master shall recommend how frequently DFPS must complete additional statewide needs assessments. DFPS shall take whatever steps are necessary to ensure that it has available to it at all times an adequate placement array, including by number, geographic distribution, and placement type, and that foster children are placed promptly in an appropriate facility. (5) DFPS shall track how many children are in each residential facility, including biological and adopted children, as well as each facility’s licensed capacity. DFPS shall make this information easy to retrieve.
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(6) DFPS can continue to pursue Foster Care Redesign, but only if the Special Master recommends, and the Court agrees, that Redesign meets the statewide needs assessment. The Special Master can evaluate Foster Care Redesign.
(7) The Special Master shall recommend provisions to solve the problem of children being removed from placements where they are succeeding because their level of care has altered. The Special Master shall also recommend provisions to solve the perverse incentive of DFPS providing additional funds to caregivers for children at increased levels of care.
(8) The Special Master shall recommend other provisions deemed necessary to ensure that DFPS’s placement array no longer causes an unreasonable risk of harm to foster children.
Foster Group Homes: (1) The Special Master shall recommend if FGHs should continue to operate based on whether FHGs can be improved to the extent that they will not cause an unreasonable risk of harm to foster children. (2) If the Special Master determines that FGHs should continue to operate, the Special Master shall recommend necessary provisions, including awake-night supervision, additional staff training, and more appropriate staff-to-child ratios. VI. CONCLUSION Texas’s foster care system is broken, and it has been that way for decades. It is broken
for all stakeholders, including DFPS employees who are tasked with impossible workloads. Most importantly, though, it is broken for Texas’s PMC children, who almost uniformly leave State custody more damaged than when they entered.
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The Court believes that Specia and his staff have the best intentions to run an effective foster care system. The Court is also mindful that Specia is the seventh commissioner since 2004, each of whom was surely ushered in with promises that this time it will be different. The reality is that DFPS has ignored 20 years ' of reports, outlining problems and recommending solutions. DFPS has also ignored professional standards. All the while, Texas ' s PMC children have been shuttled throughout a system where rape, abuse, psychotropic medication , and instability are the norm. The Court has no assurance that anything has changed. Of the two reforms to which DFPS pointed- CPS Transformation and Foster Care Redesign-one was instituted in the wake of this lawsuit, the other is an abject failure , and neither answers any of Plaintiffs' claims.
Plaintiffs have a Fourteenth Amendment substantive due process right to be free from an unreasonable risk of harm caused by the State. Texas currently violates that right.
SIGNED and ORDERED this 17th day of December, 2015.
United States District Judge
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VII. GLOSSARY
CCL – Child Care Licensing. A division of DFPS. COA – Council on Accreditation for Services to Children and Families. A nonprofit child advocacy organization that recommends professional standards for state child welfare systems. CPA – Child Placement Agency. A private agency contracted by DFPS to place foster children in homes. CPS – Child Protective Services. A division of DFPS. CPU – Centralized Placement Unit. A secondary caseworker who does not interact with children. CVS – Conservatorship, i.e., foster care. CWLA – Child Welfare League of America. The nation’s oldest and largest child welfare organization, which recommends professional standards for state child welfare systems. DFPS – Department of Family Protective Services. A Defendant, and the Texas State agency responsible for protecting the State’s children, elderly, and disabled. FGH – Foster Group Home. A childcare facility that provides care for 7 to 12 children for 24 hours a day. GRO – General Residential Operation. A child-care facility that provides care for more than 12 children for 24 hours a day. GROs include RTCs, halfway houses, emergency shelters, and therapeutic camps, and may be a single building or a campus with multiple cottages. IMPACT – Information Management for the Protection of Adults and Children in Texas. An automated system, included in case files, in which DFPS staff record casework related activities. LFC – Licensed Foster Care. Refers to foster care operations that receive licensing and oversight from DFPS. LFCs include independent foster family homes, independent foster group homes, GROs, RTCs, maternity homes, child-placing agencies, CPA foster family homes, and CPA foster group homes. PMC – Permanent Managing Conservatorship. A type of legal custody granted by the courts to DFPS. The legal status for children typically progresses to PMC from TMC, 12-18 months after the child enters foster care. PMU – Performance Management Unit. A division of CCL that performs internal quality control. RCCL – Residential Child Care Licensing. A division of CCL that regulates, licenses, and investigates residential foster care operations. R/O – Ruled Out. An investigation disposition, meaning that a preponderance of evidence indicates that abuse, neglect or exploitation did not occur. RTB – Reason to Believe. An investigation disposition, meaning that a preponderance of evidence indicates that abuse, neglect, or exploitation occurred. RTC – Residential Treatment Center. A type of GRO for children with more serious physical and mental health needs. TMC – Temporary Managing Conservatorship, a type of legal custody granted by the courts to DFPS. A child may remain in the State’s TMC for 12 months, although a court can order a 6 month extension. UTD – Unable to Determine. An investigation disposition, meaning that a determination could not be made because of an inability to gather enough facts. The investigator concludes that there is not a preponderance of evidence that abuse or neglect occurred; but it is not reasonable to conclude that abuse or neglect did not occur.
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ATTACHMENT 1
(PX 811) DFPS Hierarchy
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ATTACHMENT 2
(PX 806) Map of Regions
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
RICK PERRY, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:11-CV-84 § § § §

ORDER

Before the Court is Plaintiffs’ Motion for Class Certification and Appointment of Class

Council. (D.E. 160). Plaintiffs have asked the Court to certify one General Class and four

subclasses. Also currently before the Court is Defendants’ Motion for Partial Summary Judgment on the claims of named plaintiffs D.I., S.R.,1 M.R., and J.R., Plaintiffs’ Motion for

Leave to File a Fourth Amended Complaint, and Plaintiffs’ Motion for Leave to File Reply in

Support of that motion. (D.E. 199; 205; 212). For the reasons stated below, Plaintiffs’ Motion

for Class Certification is GRANTED in part and DENIED in part. Defendants’ Motion for

Partial Summary Judgment is DENIED as moot. Plaintiffs’ Motion for Leave to File Reply in

Support of Motion for Leave to File a Fourth Amended Complaint and Motion for Leave to File

a Fourth Amended Complaint are GRANTED.

I. Jurisdiction Plaintiffs bring their claims under 42 U.S.C. § 1983. (D.E. 179 at 7). This Court hence
has subject matter jurisdiction over this case per 28 U.S.C. § 1331.
1 S.R. is listed as S.T. in the Third Amended Complaint (D.E. 179) and Plaintiffs’ Brief in Support of Motion for Class Certification (D.E. 160). The initials are corrected in Plaintiffs’ Post-Hearing Brief (D.E. 195). Class Cert. Hr’g 1/23/13(Young) at 207-10.
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II. Background A. Procedural History
Plaintiffs are minor children in the custody of the Texas Department of Family and Protective Services (“DFPS”). They are all in DFPS’s Permanent Managing Conservatorship (“PMC”). On March 29, 2011 Plaintiffs filed suit through their next friends against Rick Perry, Governor of Texas, Thomas Suehs, Executive Commissioner of the Health and Human Services Commission of the State of Texas, and Anne Heiligenstein, Commissioner of the Department of Family and Protective Services of the State of Texas (collectively, “Defendants”), in their official capacities.2 (D.E. 1). On April 5, 2011 Plaintiffs filed a Motion for Class Certification. The Court granted their motion on June 2, 2011, holding that the requirements of Federal Rules of Civil Procedure Rule 23 had been met. (D.E. 49). Defendants appealed to the Fifth Circuit Court of Appeals pursuant to Rule 23(f). (D.E. 63). On March 23, 2012 the Fifth Circuit vacated the class certification order and remanded the case to this Court for proceedings in light of the intervening Supreme Court ruling in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). M.D. ex rel. Stuckenberg v. Perry, 675 F.3d 832 (5th Cir. 2012) (“MD”). Plaintiffs filed a second motion to certify the class on October 5, 2012. (D.E. 160).
B. Factual Background When the Child Protective Services (“CPS”) division of DFPS determines a child has been maltreated or is at risk and should not remain in her home it removes the child and petitions a court for Temporary Managing Conservatorship (“TMC”) over the child. If TMC is granted,
2 Kyle Janek has since replaced Suehs as Executive Commissioner of the Health and Human Services Commission and John J. Specia, Jr. has replaced Heiligenstein as Commissioner of DFPS. Plaintiffs’ pleadings have been amended to reflect these changes. (D.E. 179).
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DFPS takes custody of the child and attempts to achieve reunification or, if this is not possible, place the child with a new, permanent family. TMC lasts one year unless a court orders that it be extended another six months. If at the termination of TMC the child has not been reunified or placed in a new family the child is transferred to the PMC. The child remains in the State’s PMC until he or she is adopted, custody is otherwise transferred, or they age out of the system. (D.E. 179 at 1-2). There are roughly 12,000 children in the PMC at a given time. (D.E. 195 at 18).
Children in the PMC are placed in a variety of different settings. Many of these placements are managed by private child placing agencies (“CPAs”) that contract with the State. DFPS also directly places some children in homes and residential facilities. In both cases the Residential Child Care Licensing (“RCCL”) division of DFPS has the ultimate responsibility for inspections and investigations of placements, as well as licensing and monitoring CPAs. Foster family homes are traditional foster homes and contain fewer than 7 children. They are verified and the caregivers receive training and financial support. The verification process involves screening the home and conducting a variety of inspections to ensure the placement meets the requirements related to the type of care it will provide. (PX 50 at 204). Foster group homes contain 7 to 12 children but are otherwise almost identical to foster family homes. (PX 390 at 2). They are regulated, receive financial support, but are not required to have nighttime awake supervision. (PX 50). Facilities that contain 13 or more children are termed General Residential Operations (“GROs”). They are licensed by the RCCL, subject to extensive regulations, and receive financial support. (PX 49). Presently, GROs have capacities ranging from 13 to 437 residents. (PX 302). Residential Treatment Centers (“RTCs”) are a type of GRO that provide specialized treatment. (PX 390 at 2).
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Texas also utilizes kinship placements. These are placements with someone who is related to the child or has a longstanding and significant relationship with the child or her family. All kinship placements must be approved by DFPS and have a home assessment. (PX 406 at 4). Kinship placements can be either verified or unverified. If verified, they undergo the same licensing requirements as a foster family home, the caregivers have the same training requirements as foster parents, and the homes receive the same financial assistance as foster homes. If they are unverified, then they are only eligible for limited monetary assistance and the caregivers are not required to complete the training provided for foster parents. (D.E. 179 at 2; PX 406 at 4).
C. Plaintiffs’ Claims Plaintiffs generally allege that “Texas policies and practices result in structural deficiencies that put all children who are or will be in the State’s PMC at an unacceptable risk of harm.” (D.E. 179 at 2). Plaintiffs assert two counts in their Third Amended Complaint and ask the Court to certify a General Class and four subclasses. Count I alleges a violation of Fourteenth Amendment substantive due process rights to adequate care and a safe, secure, and suitable placement while in State custody. Count II alleges a violation of the First, Ninth, and Fourteenth Amendment rights to family integrity of the members of the putative Licensed Foster Care Subclass. (D.E. 179 at 8, 20). In each of their claims Plaintiffs assert that there is some structural deficiency that constitutes a policy or practice of Defendants that violates class members’ constitutional rights. On behalf of all children in the PMC, Plaintiffs bring a class action alleging that the State’s policies and practices deprive class members of their right to be free from an
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unreasonable risk of harm, including psychological harm, which the State owes them by virtue of its decision to take them into its custody. Plaintiffs allege that DFPS has a practice of overburdening caseworkers with excessive workloads. Because of this practice, caseworkers are unable to fulfill their duties, putting class members at risk as caseworkers are critical to maintaining a foster child’s safety and well-being. Caseworkers simply do not have the time and resources to adequately monitor a child to ensure that her living conditions are safe. Plaintiffs allege, as well, that the overburdened caseworkers lead to a greater number of placement moves, which can inflict psychological harm on class members. On behalf of one subclass they claim that the State fails to exercise sufficient oversight over the residences foster care children are placed in. They also claim that the State maintains an insufficient array of placements, so that class members must either be placed in residences ill-suited to their needs or be uprooted and relocated considerable distances. Plaintiffs claim that Texas’ practices of placing children in the foster group homes described above and of placing children who need only basic child care services in GROs violate their respective subclass’ Fourteenth Amendment rights.
In the course of this litigation Plaintiffs’ claims have changed substantially. In their original Complaint, (D.E. 1), Plaintiffs alleged a variety of problems with Texas’ management of foster care and claimed that the State’s mismanagement violated the rights of children in the PMC. In vacating the original certification of the class, the Fifth Circuit expressed doubt as to whether Plaintiffs could “advance a due process claim based on a bare finding that Texas has ‘organized or managed’ DFPS improperly.” MD, 675 F.3d at 841 n.3. Moreover, the Fifth Circuit noted that the original Complaint aggregated a number of individual claims into one “super-claim” on behalf of the class. Id. at 844. In response, Plaintiffs have proposed several subclasses and changed their allegations.
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D. Named Plaintiffs Named plaintiff M.D. was removed from her home because she was neglected by her mother and had been abandoned by her father. (D.E. 1 at 6). At the age of 10 she was placed with her relatives, but was then removed from that home when her cousin sexually assaulted her. (PX 27 at DFPS #28240 (filed under seal)). After the incident, M.D.’s relatives decided that they could not care for her, and she was placed in the State’s custody. Id. at DFPS #28544. Since then, M.D. has been placed in a number of institutional facilities due to her therapeutic needs. These placements have involved moving M.D. far from her home community, her siblings (who are not in foster care), and necessitated repeatedly enrolling her in new schools. Id. at DFPS #28382, DFPS #28394, DFPS #28394. While placed in an RTC M.D. walked to a nearby retail establishment where she was raped. (D.E. 1 at 6). There have also been several reports that M.D. has been subjected to sexual abuse or misconduct while in the State’s custody. (PX 27 at 1 RFP 1 RCCL 00725, 1 RFP 1 RCCL 00863, 1 RFP 1 RCCL 00872-74, 1 RFP 1 RCCL 00009 (filed under seal)). Since being placed in Texas’ PMC, M.D. has been placed primarily in RTCs and Intensive Psychiatric Transition Programs (“IPTPs”) in RTCs that are designed to transition a child into less structured and restrictive environments.. E.g., id. at DFPS #28393-94, DFPS #28396-97, DFPS #28403, DFPS #282419-20, DFPS #28423-24, DFPS #28432-34. She has also been placed in juvenile detention on at least four occasions. Id. at DFPS #28544, DFPS #28574-75, DFPS #30210. Finally, her time in the State’s care has been marked by a number of hospitalizations, including as many as three hospitalizations in the course of a single year. E.g., id. at DFPS #28420. These hospitalizations were precipitated by M.D.’s “extreme behaviors”
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including “severe self-harming behaviors” and cutting. Id. at DFPS #28420, DFPS #28428, DFPS #28399-400, DFPS #28407-08, DFPS #28415-16. M.D. currently resides in an RTC in Austin County. (D.E. 179 at 3). Excepting her hospital stays, M.D. has had 11 placements since being removed from her original home.
D.I. is an eleven year old boy from Houston. He has been involved with DFPS since 2007 when DFPS received reports that his drug-addicted mother was neglecting him. He ran away from home in 2008 and DFPS instituted a safety plan but left him with his mother. In 2009 DFPS removed him from his home after the safety plan failed to end D.I.’s abuse and neglect. He entered the PMC in 2010. (D.E. 1 at 8-9). He was first placed with a relative in an arrangement that was intended to be permanent, but he was removed in June 2010 because that relative could not manage his behaviors. Id.; (PX 26 at DFPS #16449 (filed under seal)). At the age of eight he was placed in a foster group home. In his first month there two older boys in the home, aged 16 and 17, sexually abused him in at least three episodes involving oral and anal sex. The caregiver in the foster group home was unaware of this sexual abuse until one of the older boys confessed. (PX 26 at DFPS #17794, 1 RFP 2RCCL 00930 (filed under seal)). D.I. was removed to an emergency respite placement and then to another foster home. Id. at 1 RFP 2 RCCL 01021. He has subsequently been moved through several different foster homes and psychiatric hospitals. (D.E. 1 at 9-10). Excluding trips to hospitals, he has had four different placements while in care. In one of these he was placed with another child with a history as a victim of sexual abuse. While they were unsupervised, this child attempted to initiate sexual contact with D.I. (PX 26 at CCGH-000370, 1 RFP CPS 002150 (filed under seal)). Neither child was removed from the placement. On October 24, 2012 D.I. was adopted. (D.E. 199).
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Z.H. was brought into foster care in February 2009 after being abused and neglected by his mother, who had left him malnourished and was insensitive to his medical and psychiatric needs. (PX 28 at DFPS #33580 (filed under seal)). He was separated from his siblings and placed in emergency shelters and hospitals where he was overmedicated; on at least one occasion heavy stimulation was required just to keep his eyes open. (D.E. 1 at 12; PX 28 at DFPS #33589 (filed under seal)). During his first six months in state care he was moved seven times, and has experienced nine placement moves total. He was first placed in an emergency shelter, then was moved to a foster group home. After the group home failed to meet his needs he was moved to a psychiatric hospital, then a foster family home, but then back to the psychiatric hospital, where he spent over a month. Z.H. then spent about three weeks in an emergency shelter before being placed in an RTC. (D.E. 1 at 12; PX 28 at DFPS #33187, DFPS #33190, DFPS #33193, DFPS #33196, DFPS #33199, DFPS #33202, DFPS #33580 (filed under seal)). He was in this RTC for almost a year but was removed when the facility gave notice that it could do no more for him. (PX 28 at DFPS #33205 (filed under seal)). He was then moved to his current placement, another RTC roughly 300 miles from his home in San Antonio. (D.E. 179 at 4; PX 38 at DFPS #33208 (filed under seal)).
S.A. was removed from her parents’ custody in Florida after it was determined that she and her brother were at risk of physical abuse from their mother and that their father was unable to care for them. They were adopted by their grandmother, but more abuse was reported to Florida officials. Their grandmother relocated with them to Louisiana before the children could be removed by Florida officials. Child service authorities in Louisiana later removed S.A. from her grandmother’s care and placed her with a family friend. This family friend, however, returned her to her grandmother and they left the state. S.A. was removed by Texas in 2001
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when her grandmother was arrested on outstanding warrants while traveling with a registered sex offender and attempting to cross the border into Mexico. S.A. was five years old at the time and was not with her brother, who has lived in Mexico since 2001. (D.E. 1 at 13; PX 32 at DFPS #48570, DFPS #49408 (filed under seal)). While in care she moved through foster homes, RTCs, and emergency shelters, often being moved after displaying aggressive and self-abusive behavior. (PX 32 at DFPS #48993, DFPS #48996, DFPS #48999, DFPS #49002, DFPS #49012 (filed under seal)). She has also spent time in several psychiatric hospitals. Id. at DFPS #49022, DFPS #49025, DFPS #49025, DFPS #49033, DFPS #49037, DFPS #49041, DFPS #49067, DFPS #49071, DFPS #49079, DFPS #49091, 1 RFP CPS 007960. During her time in care she has experienced over 24 different placements throughout the State and has had 12 different caseworkers. (D.E. 1 at 14-15). She is now 16 years old and is placed in an RTC in the Houston area. (D.E. 179 at 4; PX 32 at 1 RFP CPS 034267 (filed under seal)).
A.M. is a 15 year old who has been in foster care since July 2004. She was removed at the age of six after calling the police to report a violent fight between her mother and two men. (D.E. 1 at 15-17). When she was taken into care her father was on death row and her mother was in the process of being tried for a homicide, which A.M. witnessed. (PX 25 at DFPS #3980 (filed under seal)). In one foster home she was punished by being made to drink vinegar and run laps. Id. at DFPS #4534; (D.E. 1 at 16). Later, A.M. was placed with her younger sister in a foster home that was supposed to lead to adoption. After over a year in the home, the foster parents told her that they were adopting her sister, but would not adopt her. A.M’s behavior and emotional state then deteriorated and she was sent to a psychiatric hospital. She has been hospitalized at least three times due to outbursts, violent behavior, and suicidal ideation. E.g., (PX 25 at DFPS #3915, DFPS #3980, DFPS #493, DFPS #4049 (filed under seal)). After being
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discharged she was placed in an RTC far from that home and rarely has had contact with her sister or her former foster parents, who have no interest in bringing her back into the family. Id. at DFPS #313; (D.E. 1 at 15-17). She was moved to a foster group home in 2011, but was soon moved back to an RTC. She currently resides in another RTC almost three hours from her home community. (D.E. 179 at 4; PX 25 at DFPS #503, 1 RFP CPS 010074, 1 RFP CPS 045902, 1 RFP CPS 045903 (filed under seal)). During her time in the State’s care A.M. has had nine placements.
In 2007 J.S. was removed at the age of five from his mother’s home due to neglect and his mother’s drug abuse. Soon after being removed his personality changed dramatically and he became very moody and aggressive. He was taken to a psychiatric hospital after having suicidal and homicidal ideations. He was then separated from his sister and niece, who were also in the State’s care, and moved to an RTC about 500 miles away. After making little progress at that facility, a court ordered him moved closer to home, and he then cycled through several foster homes and emergency shelters until being moved to another distant RTC. (D.E. 1 at 20; PX 29 at DFPS #38084, DFPS #38090, DFPS #38093, DFPS #38096 (filed under seal)). He was removed from one facility after it was placed under adverse action by DFPS and another after it was determined there was a risk of sexual abuse by another child. (PX 29 at DFPS #38099, DFPS #38104 (filed under seal)). He currently resides in yet another RTC, again over 300 miles from his home. In his first year in State care alone, he had five different placements. (D.E. 1 at 19; PX 29 at DFPS #37882, DFPS #37924 (filed under seal)). In total, he has had nine different placements. (D.E. 179 at 4; PX 29 at 1 RFP CPS 055447 (filed under seal)); see also Class Cert. Hr’g, 1/22/13 (Ricker) at 94).
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P.O. and H.V. are members of a sibling group, aged 9 and 13 respectively. They were removed from their home in 2004 on the grounds of neglect by their mother who was found to be abusing drugs and providing inadequate housing. (PX 33 at 1RFP CPS 030253 (filed under seal); PX 34 at 1 RFP CPS 030255 (filed under seal)). They were both placed with a relative, which was intended to be a permanent home, but were removed a year later because of risk of abuse. (PX 33 at 1 RFP CPS 031087 (filed under seal); PX 34 at 1 RFP CPS 031176 (filed under seal)). They then spent several months with another relative, but were again removed as a precautionary measure due to allegations of abuse. (PX 33 at 1 RFP CPS 031090 (filed under seal); PX 34 at 1 RFP CPS 031179 (filed under seal)). About five years later, H.V. would be returned to this relative’s care, with the intention that the placement be permanent, but was again removed, this time due to his own behaviors. (PX 34 at 1 RFP CPS 031213 (filed under seal)).
After being removed from his relatives’ care, P.O. was placed in an emergency shelter, where he remained for 30 days. (PX 33 at 1 RFP CPS 031090, 1 RFP CPS 031093 (filed under seal)). P.O. spent the next two years in a foster home away from his brothers, was then moved to the same city as his siblings, and was eventually placed in a home with them. Id. at 1 RFP CPS 031096, 1 RFP CPS 031099, 1 RFP CPS 031102. Reuniting P.O. with his siblings thus necessitated another placement move after being in a foster home for about eight months. He was then placed in several homes that were intended to lead to adoptions, but none of these were successful and he was placed in foster group homes and GROs, sometimes along with his siblings. Id. at 1 RFP CPS 031113, 1 RFP CPS 031117, 1 RFP CPS 031121, 1 RFP CPS 031225, 1 RFP CPS 031299. During this time P.O. had problems with aggression and destructive behavior, made suicidal statements that resulted in a short stay at a psychiatric hospital, and was on several medications to control his mood and behavior. Id. at 1 RFP CPS
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030658, 1 RFP CPS 031804, 1 RFP CPS 032430, 1 RFP CPS 032437. P.O.’s case file documents his last placement over a year ago, in a foster group home. (PX 33 at 1 RFP CPS 059489 (filed under seal)). His next friend, Anna Ricker, testified that he is currently in a kinship placement, but was unsure if it was verified or not. Class Cert. Hr’g, 1/22/13 (Ricker) at 123-25; see also (D.E. 179 at 5). Since first coming into the State’s care, P.O. has had at least 11 placements.
After being removed from his relatives’ home (for the first time), H.V. spent a month in an emergency shelter followed by several foster family homes and foster group homes. (PX 34 at 1 RFP CPS 031182, 1 RFP CPS 031185, 1 RFP CPS 031188, 1 RFP CPS 031191, 1 RFP CPS 031201, 1 RFP CPS 031205 (filed under seal)). In 2010 he was placed in an adoptive home, but adoption was disrupted and he was moved first to a GRO and then back to the kinship placement described above. After being removed from that home a second time, H.V. spent almost four months in an emergency shelter. Id. at 1 RFP CPS 031213, 1 RFP CPS 031217. In September 2011, H.V. was placed in a foster group home and has remained in there since. (D.E. 179 at 4; PX 34 at 1 RFP CPS 059587, 1 RFP CPS 059589 (filed under seal)). In total, he has been in nine different placements. Class Cert. Hr’g, 1/22/13 (Ricker) at 97.
K.E. was removed from her home at the age of eight because of neglectful supervision and physical and emotional neglect. (D.E. 1 at 22; PX 31 at DFPS #44595, DFPS #44605 (filed under seal)). She was placed in a therapeutic foster family home, but was relocated to an emergency shelter, where she remained for two and a half months, as she required more intensive care. (PX 31 at DFPS #44877, DFPS #44880 (filed under seal)). She then spent two and a half years at an RTC until the facility determined it could do no more for her. Id. at DFPS #44883. Since then, she has been placed in a variety of foster family homes, foster group homes,
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RTCs, and emergency shelters, often being removed from one placement due to behavioral problems, taken to an RTC, and then being moved to a less restrictive residence when her necessary level of care decreased, only for the pattern to begin again. Id. at DFPS #44886, DFPS #44889, DFPS #44892, DFPS #44895, DFPS #44898, DFPS #44901, DFPS #44907, DFPS #44910, DFPS #44916, DFPS #44919, DFPS #44934, DFPS #44938. She has also been placed in psychiatric hospitals and juvenile justice facilities. Id. at DFPS #44902, DFPS #44904, DFPS #44913, DFPS #44922, 1 RFP CPS 018759, 1 RFP CPS 018761. Since entering care she has had over 30 different placements, including 7 hospitals, 4 emergency shelters, and 11 different RTCs, at least 5 of which were in the Houston area, over 500 miles from her home. (D.E. 1 at 22; PX 71 at 1 RFP CPS 017395, 1 RFP CPS 018758, 1 RFP CPS 018759, 1 RFP CPS 018760, 1 RFP CPS 018762, 1 RFP CPS 038998 (filed under seal)). She is now 17 years old and resides at an RTC that is over a five hour drive from her home community. (D.E. 179 at 5 (filed under seal)).
S.R., M.R., and J.R. (“the R. children”) are siblings from Houston aged seven, six, and three respectively. (D.E. 179 at 5). They were placed in the custody of the State in 2010. (DX 55 at 1 RFP CPS 072696, 1 RFP CPS 073453, 1 RFP CPS 108254 (filed under seal)). This occurred after then six month old J.R. was taken to the hospital with seizures caused by incorrectly mixed formula and was found to be malnourished and have several serious medical problems. She and her siblings were removed from their mother because their mother had mental health issues and could not take care of them or provide for J.R. and S.R.’s special needs. Id. at 1 RFP CPS 073470, 1 RFP CPS 073471, 1 RFP CPS 073473, 1 RFP CPS 108219.
Shortly after entering care the R. children were placed with their maternal aunt due to a court order. Id. at 1 RFP CPS 072696, 1 RFP CPS 072703, 1 RFP CPS 072782. She is not a
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licensed or verified caregiver and receives only very limited financial support from the State. Class Cert. Hr’g 1/23/13 (Young) at 215-16. Their aunt initiated adoption proceedings. Id. at 231, 233-34. The children were later removed from their aunt’s care due to health and safety concerns as well as the fact that there were seven children under the age of six in the home. (DX 55 at 1 RFP CPS 077572-78 (filed under seal)). The R. children’s next friend, Bobby Young, acting as their attorney ad litem, requested that a court return them to their aunt’s care, and the court issued an order to that effect. Id. at 1 RFP CPS 109781; Class Cert. Hr’g 1/23/13 (Young) at 217. According to Young, the foster parents had not been attentive to the needs of the children, J.R. had unexplained injuries, the children’s emotional state appeared to suffer, and the foster parents were reticent about her visits to check up on the children. Class Cert. Hr’g 1/23/13 (Young) at 236, 238-39. Custody for J.R. has been transferred to their aunt, and in the case of S.R. and M.R., jointly to their aunt and paternal grandmother. (D.E. 199, exh. 1). Based on the record before the Court, the R. children have had three placements since coming into the State’s care.
L.H. and C.H. are two siblings out of eight that have been in foster care since 2008. Seven of the siblings are currently placed at a GRO. L.H. is 13 and C.H. is 10 and both are classified at the basic level of care. After a disruption in a previous placement they were placed in this GRO because that was the only way DFPS could keep the siblings together. Class Cert Hr’g. 1/23/13 (Vasquez) at 160-61. Estela Vasquez, their next friend, advocated for their placement together because the trauma the children were already going through would be worse if DFPS disrupted their tight sibling relationships, the only source of stability in their lives. Id. at 160-62. Due to high turnover, since coming into care they have had several different
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caseworkers. Id. at 165. L.H. and C.H. have each been in two placements in the foster care system.
III. Legal Framework for Class Certification: Rule 23 Class Certification is governed by Federal Rule of Civil Procedure 23. To warrant class
certification, all of Rule 23(a)’s threshold requirements must be satisfied as well as one of the conditions contained in Rule 23(b). E.g., MD, 675 F.3d 832, 837 (5th Cir. 2012); Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 523 (5th Cir. 2007). Rule 23(a) requires that:
(1) the class is so numerous that joinder of all members is impracticable [numerosity]; (2) there are questions of law or fact common to the class [commonality]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality]; and (4) the representative parties will fairly and adequately protect the interests of the class [adequacy of representation]. Fed. R. Civ. P. 23(a). Plaintiffs seek certification under Rule 23(b)(2), which allows for certification if: “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs, as the party seeking class certification, bear the burden of establishing that Rule 23’s requirements have been met. Wal-Mart, 131 S.Ct. at 2551 (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”); MD, 675 F.3d at 837; In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). In determining whether Rule 23 has been satisfied, courts are instructed to conduct a “rigorous analysis” and to “look beyond the pleadings to ‘understand the claims, defenses, relevant facts, and applicable substantive law in order to make
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a meaningful determination of the certification issues.’” McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 548 (5th Cir. 2003) (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996)); see also Castano, 84 F.3d at 740 (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)); Unger v. Amedisys Inc., 401 F.3d 316, 319, (5th Cir. 2005). The same analytical approach is used for Rule 23(a) and Rule 23(b). Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013).
This rigorous analysis will sometimes touch upon the merits of a plaintiff’s case as “class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Wal-Mart, 131 S.Ct. at 2551 (citing Falcon, 457 U.S. at 147). In these cases, the plaintiff’s Rule 23 burdens are not relaxed. Id. at 2552; Funeral Consumers Alliance, Inc. v. Serv. Corp. Int’l, 695 F.3d 330, 346 (5th Cir. 2012); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307, 315-17 (3d Cir. 2008); In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24 (2d Cir. 2006). A plaintiff may, then, need to prove an issue at class certification, and again at trial in order to prevail. Funeral Consumers Alliance, 695 F.3d at 346 (quoting Wal-Mart, 131 S.Ct. at 2552 n.6).
However, any inquiry into the merits of a plaintiff’s case at this stage is limited to those issues germane to class certification. “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013) (internal citations omitted); see also Coastal Neurology, Inc. v. State Farm Mut. Auto. Ins. Co., 458 Fed. Appx. 793, 794 (11th Cir. 2012). Similarly, the Advisory Committee
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Notes for Rule 23 provide: “an evaluation of the probable outcome on the merits is not properly part of the certification decision.” Advisory Committee’s 2003 Note on subd. (c)(1) of Fed. Rule Civ. P. 23; see also Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006) (agreeing with the proposition that “whether class members will ultimately be successful in their claims is not a proper basis for reviewing a certification of a class action”).
The Fifth Circuit recently considered this issue in Erica P. John Fund v. Halliburton, Co., 718 F.3d 423 (5th Cir. 2013) (“EPJ Fund”). The defendants claimed to have evidence negating a critical element of the plaintiffs’ case. The district court refused to hear this evidence, though, concluding that it did not bear on the Rule 23 analysis. Relying on Amgen, the court of appeals affirmed: regardless of the defendants’ evidence the issue at hand was a common one— the class members’ claims would, on this point, all stand or fall together. EPJ Fund, 718 F.3d at 433-34. Since Rule 23 was satisfied, the Fifth Circuit concluded that this evidence had no place at class certification, despite it being potentially dispositive of the class claims on the merits. In sum, a court should not shy away from merits inquiries when they are necessary to determine whether Rule 23’s requirements have been satisfied, but should go no further than that.
A. Rule 23(a) Requirements 1. Numerosity
Rule 23(a)(1) “requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318, 329 (1980). There is no magic number: “The proper focus is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir. 1981). Courts must consider
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“the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981).
2. Commonality Commonality was the main issue in the Supreme Court’s Wal-Mart decision, 131 S.Ct. at 2550 (“The crux of this case is commonality”), and is the most complex part of Rule 23(a) analysis. “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Id. at 2551 (quoting Falcon, 457 U.S. at 157). It is not enough that class members suffer the same type of injury or have been subject to a violation of the same law. Id.; Lightfoot v. District of Columbia, 273 F.R.D. 314, 325 (D.D.C. 2011) (citing Love v. Johanns, 439 F.3d 723, 729 (D.C. Cir. 2006)). Rather, a plaintiff must identify a unified common policy, practice, or course of conduct that is the source of their alleged injury. For example, in Xuedan Wang, a class of former unpaid interns working at a number of Hearst’s magazines was not certified because the plaintiffs could not identify a uniform policy or set of policies regarding the way interns were treated, their responsibilities, and so on. The policies varied in significant ways among the 20 magazines and sometimes across departments within a single magazine. Xuedan Wang v. Hearst Corp., 2013 WL 1903787 (S.D.N.Y. May 8, 2013); see also, e.g., DL v. District of Columbia, 713 F.3d 120 (D.C. Cir. 2013); Luiken v. Domino's Pizza, LLC, 705 F.3d 370 (8th Cir. 2013); Bolden v. Walsh Const. Co., 688 F.3d 893 (7th Cir. 2012); Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481 (7th Cir. 2012). The policy or practice that a plaintiff identifies need not be formal or officially-adopted. Lightfoot v. District of Columbia sets out various ways plaintiffs can establish the existence of
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government policies. The most straightforward of these is express adoption by the relevant entity, either through a legislative or administrative act (e.g., a local ordinance) or by an actor who possesses policymaking authority (e.g., a chief executive). Lightfoot, 273 F.R.D. at 320-21. Absent official sanction, a policy can be identified on the basis of custom or consistent practice. Id. at 321. Or, closely-related to custom, a uniform policy can be based on the defendant’s deliberate indifference: “The critical question here is whether the government has failed to respond to a need … in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.” Id. (internal quotation marks omitted) (citing Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)). While using the same phrasing as the substantive due process deliberate indifference standard, see Section V. infra, the requirements for demonstrating the existence of a policy are less demanding. “The inquiry is an objective one … Mere negligence does suffice: the doctrine does not require the [official actor, in this case a city] to take reasonable care to discover and prevent constitutional violations, but simply means that, faced with actual or constructive knowledge that its agents will probably violate constitutional rights, the [official actor] may not adopt a policy of inaction.” Id. (emphasis in original) (internal quotation marks removed) (citing Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004)).
A plaintiff also bears the burden of connecting the policy or practice to the alleged harm, especially in cases where this connection is not readily apparent. Cf. Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012) cert. granted, judgment vacated, 133 S. Ct. 1722 (2013) (certifying a class based on being denied overtime compensation due to unofficial company policies); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 678 F.3d 409, 414 (6th Cir. 2012) cert. granted, judgment vacated sub nom. Whirlpool Corp. v. Glazer, 133 S. Ct. 1722 (2013)
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aff’d 2013 WL 3746205 (6th Cir. July 18, 2013) (certifying a class based on the purchase of washers with design defects); Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir. 2012) cert.
granted, judgment vacated, 133 S. Ct. 2768 (2013) and judgment reinstated, 2013 WL 4478200 (7th Cir. Aug. 22, 2013) (same);3 Gray v. Hearst Commc’ns, Inc., 444 F. App’x 698 (4th Cir.
2011) (certifying a class based on breach of a sufficiently similar contract). In doing so, “the
party seeking class certification may rely on reasonable, common-sense assumptions and
inferences to satisfy the requirements for class certification.” Kase v. Salomon Smith Barney,
Inc., 218 F.R.D. 149, 152 (S.D. Tex. 2003) (citing Zeidman, 651 F.2d at 1039). McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012)
cert. denied, 133 S.Ct. 338 (2012), involved a somewhat complicated connection between the
defendant’s policies and the alleged harm. Plaintiffs had filed a Title VII class action on the
basis of two company-wide policies: a “teaming” policy that permitted brokers in the same
office to form their own teams, and an “account distribution” policy that transferred accounts
from brokers who left the company largely on the basis of past performance. The plaintiffs
alleged that these policies exacerbated racial discrimination. The theory of the claim was that,
all else being equal, brokers tend to form teams of like members, so teams tend to be formed
along racial lines. Members of a racial minority may therefore find it harder to find teams at all,
3 Ross, Butler v. Sears, and Whirlpool were remanded in light of Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013). Comcast added an additional consideration to class actions seeking certification pursuant to Rule 23(b)(3), which requires a demonstration that common questions of law and fact predominate over individual ones and that a class action is a superior method to adjudicate the controversy. Fed. R. Civ. P. 23(b)(3). Under Comcast, damage calculations must be measurable “on a classwide basis” and by a “common methodology,” and this methodology must encompass only those theories deemed amenable to classwide proof. Upon remand, the Sixth and Seventh Circuits reinstated the class certification orders in Butler v. Sears and Whirlpool. See Butler v. Sears, Roebuck & Co., 2013 WL 4478200, at *5 (“The concordance in reasoning and result of our decision and the Sixth Circuit’s decision averts an intercircuit conflict.”). The Seventh Circuit has not yet rendered a judgment regarding on Ross taking into account Comcast.
These cases are cited here regarding Rule 23(a)’s threshold requirements, which were not in dispute in Comcast. Comcast, 133 S.Ct. at 1432; see also id. (“If anything, Rule 23(b)(3)’s predominance criterion is even more demanding than Rule 23(a)”); accord Ahmad v. Old Republic Nat’l Title Ins. Co., 690 F.3d 698, 702 (5th Cir. 2012); Semenko v. Wendy’s Int’l, Inc., 2013 WL 1568407 (W.D. Pa. Apr. 12, 2013).
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or at least good ones, and are thus denied the advantages of the teaming policy. The account
distribution policy is alleged to aggravate this disadvantage; brokers on good teams do better in
the competition for account distributions, leading to a “vicious cycle” for minority (in this case
African-American) brokers. McReynolds, 672 F.3d at 488-90.
It is important to note, as the Seventh Circuit did, that class certification does not require
the plaintiffs to establish that the harm actually occurred, i.e., they do not need to prove that the
policies they identified did, in fact, cause the harm they are alleging. Consistent with Amgen and
EPJ Fund, the only consideration at the class certification stage is whether the issues are
appropriate for classwide litigation. That is, whether the plaintiffs have satisfied Rule 23’s
requirements.
If the teaming policy causes racial discrimination and is not justified by business necessity, then it violates Title VII as ‘disparate impact’ employment discrimination—and whether it causes racial discrimination and whether it nonetheless is justified by business necessity are issues common to the entire class and therefore appropriate for class-wide determination. … We are not suggesting that there is in fact racial discrimination at any level within Merrill Lynch, or that management’s teaming and account distribution policies have a racial effect. The fact that black brokers have on average lower earnings than white brokers may have different causes altogether.
Id. at 489-90 (emphasis added).
As the Lightfoot court indicated, failure to act can also constitute a policy or practice.
Young v. Nationwide Mutual Insurance, Co. affirmed the certification of a class based on the
defendants’ miscalculations of local taxes that they were authorized to collect. 693 F.3d, 532, 535 (6th Cir. 2012). Despite the defendants’ contentions that they had no uniform policy or
practice that resulted in these errors—asserting instead that each was the product of unique
circumstances like misspelling a name—the Sixth Circuit concluded that there was a common
policy since defendants opted not to use available geocoding verification procedures that would
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have, plaintiffs alleged, avoided the errors. Id. at 542-43. The Young plaintiffs were, therefore, able to point to a discrete policy or practice of the defendants—not using these procedures—and the availability of something like geocoding technology served to highlight the defendants’ choice. Cf. Wal-Mart, 131 S.Ct. at 2554, 2555-56 (“respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million claims together.”); In re Countrywide Fin. Corp. Mortg. Lending Practices Litig., 708 F.3d 704, 708 (6th Cir. 2013).
The common practice or policy does not have to injure every class member or injure them in exactly the same manner: “Class certification is appropriate ‘if class members complain of a pattern or practice that is generally applicable to the class as a whole. Even if some class members have not been injured by the challenged practice, a class may nevertheless be appropriate.’” Whirlpool, 678 F.3d at 420 (citing Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 428 (6th Cir. 2012)). In Whirlpool plaintiffs complained of defective front-loading washers, and though not all members of the class had suffered the actual injuries of mold and mildew growing in their washers, they shared a common legal injury in having purchased a defective washer. Id.; accord Butler v. Sears, 702 F.3d at 362 (“If, as appears to be the case, the defect in a Kenmore-brand washing machine can precipitate a mold problem at any time, the defect is an expected harm, just as having symptomless high blood pressures creates harm in the form of an abnormally high risk of stroke.”) (emphasis added); Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006).
In addition, a plaintiff must demonstrate that there are common questions of fact or law. Not any questions will do, however. The plaintiff must show that the class’ claims are based on a common contention that is “capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of one of the
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claims in one stroke.” Wal-Mart, 131 S.Ct. at 2551; see also Ealy v. Pinkerton Gov’t Servs., Inc., 514 Fed. Appx. 299, 303-04 (4th Cir. 2013). In short, the common questions identified must be dispositive of the claims. If they are not—if, for instance, after the common questions are answered one way or another individualized inquiries to determine liability would be needed— then commonality has not been established. Ahmad v. Old Republic Nat. Title Ins. Co., 690 F.3d 698, 704 (5th Cir. 2012); see also Luiken, 705 F.3d at 377; Forte v. Wal-Mart Stores, Inc., 2012 WL 2886711, at *2 (S.D. Tex. July 13, 2012). The number of common questions does not matter, one will suffice, provided it is critical to resolving the class members’ claims. Wal-Mart, 131 S.Ct. at 2556; In re Am Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996) (internal citations omitted).
The Fifth Circuit emphasized this requirement in its MD decision. MD, 675 F.3d at 837; 841. Similarly, the Fifth Circuit held that the potential defenses against the plaintiff’s claims should also be considered as they may undermine the dispositive, “one stroke” nature of the proposed common questions. Id. at 843-44; see also Witt v. Chesapeake Exploration, L.L.C., 276 F.R.D. 458, 468-69 (E.D. Tex. 2011); cf. Schumacher v. AK Steel Corp. Ret. Accumulation Pension Plan, 711 F.3d 675, 683-84 (6th Cir. 2013). In order to determine whether there are common questions of law or fact, a court must trace the class claims and conclude that the common questions will resolve them without the need for additional extensive individualized inquiry.
The existence of some variations within the class or individualized defenses do not necessarily make class certification improper. “It is not necessary that members of the proposed class ‘share every fact in common.’” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1030 (9th Cir. 2012) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010)). In re
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Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F.Supp. 2d 1040, 1054 (S.D. Tex. 2012). So long as the common questions linking the putative class members are dispositive of their claim and the claim arises out of a single course of conduct and on a single theory of liability, Rule 23(a)’s commonality requirement is satisfied. Young, 693 F.3d at 543; Evon, 688 F.3d at 1029-30; Wang v. Chinese Daily News, Inc., 709 F.3d 829, 834 (9th Cir. 2013).
Post-Wal-Mart, establishing commonality entails two things: that there exists a common policy or practice, possibly an implicit one, that is the alleged source of the harm to class members, and that there are common questions of law or fact that will be dispositive of the class members’ claim.
3. Typicality There is significant overlap between typicality and commonality. Wal-Mart, 131 S.Ct. at 2551 n.5 (quoting Falcon, 457 U.S. at 157-58 n.13). Like commonality,
‘[t]ypicality does not require a complete identity of claims. Rather the critical inquiry is whether the class representative’s claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.’ James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001), abrogated on other grounds by MD, 675 F.3d at 832 abrogation recognized In re Rodriguez, 695 F.3d 360, 367 n.9 (5th Cir. 2012) (quoting 5-23 Moore’s Federal Practice – Civil § 23.24); In re Heartland Payment Sys., 851 F.Supp. 2d at 1055 (holding that typicality was satisfied “[d]espite possible state-by-state variations in the elements of these claims,” because “they arise from a single course of conduct by [the defendant] and a single set of legal theories.”); Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 150 (3d Cir. 2008); Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 599 (3d
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Cir. 2012); Wright & Miller, 7A Fed. Prac. & Proc. Civ. § 1764 (3d ed.) (“a number of courts have noted that typical claims need not be identical to one another”).
Typicality requires a showing that the claims of the named plaintiffs are in fact those asserted as the common class claims. In this sense, typicality is commonality addressed from the perspective of the named plaintiffs. Commonality requires showing that, in fact, all members of the proposed class share a common claim, the validity of which can be determined on a classwide basis. Typicality requires showing that, in fact, the proposed representatives have that claim. Often, once commonality is shown typicality will follow as a matter of course. See, e.g., Frey v. First Nat’l Bank Sw., 2013 U.S. Dist. LEXIS 37153 (N.D. Tex. Feb. 20, 2013).
4. Adequacy of Representation Like typicality, adequacy or representation also tends to merge with commonality, though it “also raises concerns about the competency of class counsel and conflicts of interest.” WalMart, 131 S.Ct. at 2551 n.5 (quoting Falcon, 457 U.S. at 157-58 n.13). Adequacy of representation “‘encompasses class representatives, their counsel, and the relationship between the two.’” Stirman v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002) (quoting Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001)). In evaluating this requirement, a court “must consider ‘[1] the zeal and competence of the representative[s’] counsel and . . . [2] the willingness and ability of the representative[s] to take an active role in and control the litigation and to protect the interests of absentees[.]’” Id. (alterations in original) (quoting Berger, 257 F.3d at 479). Class counsel are fiduciaries of the class and the court must be satisfied that they are prosecuting the case in the interest of the class. See, e.g., Culver v. City of Milwaukee, 277 F.3d 908, 913 (7th Cir. 2002); In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 36 n. 12 (1st Cir. 2009).
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In the present case Plaintiffs are minors represented by next friends pursuant to Rule 17 of the Federal Rules of Civil Procedure. In such a case courts “consider the individual’s familiarity with the litigation, the reasons that move her to pursue the litigation, and her ability to pursue the case on the child’s behalf” to determine whether or not the next friend is dedicated to the minor’s best interests. Sam M. v. Carcieri, 608 F.3d 77, 92 (1st Cir. 2010).
B. Rule 23(b)(2) In the Fifth Circuit, Rule 23(b)(2) has been interpreted to have three components. First,
“class members must have been harmed in essentially the same way.” Maldonado, 493 F.3d at 524 (citing Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 (5th Cir. 2000)); see also MD, 675 F.3d at 845 (citing Maldonado). This understanding of the Rule is reinforced by Wal-Mart:
Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant … the relief sought must perforce affect the entire class at once. 131 S.Ct. at 2557-58. Given the threshold requirement of commonality, if a plaintiff has satisfied the requirements of Rule 23(a), then the conditions of Rule 23(b)(2) will tend to follow. In establishing commonality the plaintiff will have identified a common practice or policy that is the source of the class members’ harm. So, if she prevails on the merits, a single injunction barring or modifying that course of that behavior will, in the ordinary course of things, provide relief to the members of the class. In contrast, if the requested relief requires particular relief tailored to each class member, then certification under Rule 23(b)(2) is inappropriate. MD, 675 F.3d at 846-47; Shook v. Bd. of Cnty. Comm’rs, 543 F.3d 597, 604 (10th Cir. 2008) (“Shook II”).
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Second, “injunctive relief must predominate over monetary damage claims.” Maldonado, 493 F.3d at 524 (citing Bolin, 231 F.3d at 975); accord Wal-Mart, 131 S.Ct. at 2558-59; id. at 2561 (Ginsburg, J., concurring in part and dissenting in part). Damages can be awarded under Rule 23(b)(2), but they must be “incidental,” meaning that they do “not require additional hearings to resolve the disparate merits of each individual’s case,” nor do they “introduce new legal or factual issues, nor entail complex individualized determinations.” WalMart, 131 S.Ct. at 2560 (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998)).
Third, the injunctive relief must be specific. Maldonado, 493 F.3d at 524 (citing Bolin, 231 F.3d at 975). This requirement is derived from Rule 65(d), which requires that all injunctions be stated specifically and describe in reasonable detail the act or acts restrained or required. Fed. R. Civ. P. 65.(d). In MD, the court of appeals held that a plaintiff must “make an effort” to describe the injunctive relief they request “so that final injunctive relief may be crafted to describe in reasonable detail the acts required.” 675 F.3d at 848 (internal quotation marks omitted) (citing Shook II, 543 F.3d at 605-06). The precise terms of the injunction need not be decided at class certification, only that the class members’ claim is such that a sufficiently specific injunction can be conceived; a plaintiff must present evidence and arguments “sufficient to allow the district court to see how it might satisfy Rule 65(d)’s constraints and thus conform with Rule 23(b)(2)’s requirement.” Shook II, 543 F.3d at 605 n.4 (emphasis added); accord Morrow v. Washington, 277 F.R.D. 172, 198 (E.D. Tex. 2011) (“Plaintiffs have set forth facts suggesting that Defendants’ behavior was generally applicable to the class as a whole, making injunctive relief appropriate. The precise terms of the injunction need not be decided at this stage, only that the allegations are such that injunctive and declaratory relief are appropriate and
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that the class is sufficiently cohesive that an injunction can be crafted that meets the specificity requirements of Rule 65(d).”) (emphasis added).
IV. Proposed Class Definitions Plaintiffs propose a General Class and four subclasses defined as follows, (D.E. 179 at 7-
8): 1. General Class: all children now, or in the future, in the Texas PMC. 2. Licensed Foster Care (“LFC”) Subclass: all members of the General Class who are now or will be in a licensed or verified foster care placement, except those children now, or in the future, placed in a verified kinship placement.4 3. Foster Group Home Subclass: all members of the General Class who are now or will be in a foster group home. 4. Basic Care GRO Subclass: all members of the General Class who are now or will be in a GRO and who are now or will be receiving solely non-emergency, basic child care services. 5. Unverified Kinship Subclass: all members of the General Class who are now or will be in an unverified kinship placement.
The subclasses overlap: all members of the Foster Group Home subclass and the Basic Care GRO Subclass are also members of the Licensed Foster Care Subclass.
The membership of the proposed class and each proposed subclass is easily ascertainable. They are all defined in terms of categories used by DFPS. The PMC is well-defined at any given
4 Plaintiffs’ proposed definition of the LFC Subclass could be misleading. As they word it, it sounds as if a future placement in a verified kinship placement somehow removes the child in question from the subclass. A clearer presentation would be: all members of the General Class who are or will be in a licensed or verified foster care placement, excluding verified kinship placements.
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time based on the legal status of the child in state custody. Each subclass is defined by the type of DFPS placement the child is currently in along with other categorizations—like being classified as needing only basic child care services—employed by DFPS.
V. Plaintiffs’ Fourteenth Amendment Claim Plaintiffs’ claims are all based on the same legal theory, save one claim asserted on
behalf of the Licensed Foster Care Subclass discussed below (see Section VIII. infra). They assert a Fourteenth Amendment substantive due process right to a duty of care while in the custody of the State. They allege that Defendants have instituted policies or practices that deprive them of their Fourteenth Amendment right to be free from an unreasonable risk of harm while in the State’s custody. The variation in the General Class and subclass claims consists of the policy that the Plaintiffs allege is causing the harm and the group of children in the PMC they allege are being harmed by that policy.
The Supreme Court has held that the Fourteenth Amendment does not generally create an affirmative duty of care on the part of the State to protect citizens from private harm. DeShaney v. Winnebago Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989) (“[The Fourteenth Amendment’s] purpose was to protect the people from the State, not to ensure that the State protected them from each other.”). But in so ruling the Court recognized “that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” Id. at 198.
The first context in which such a right was identified was prisoner litigation. Estelle v. Gamble, 429 U.S. 97 (1976), held that the Eighth Amendment prohibition of cruel and unusual punishment imposed an obligation on the State to provide medical care for those it imprisons.
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Id. at 103. While incarcerated, a prisoner is forced to rely on prison officials for her medical needs, and failure to provide for those needs can, in extreme cases, amount to torture and death. Id. at 103-04 (quoting Spicer v. Williamson, 191 N.C. 487 (N.C. 1926)).
This right has been extended beyond prisons and the Eighth Amendment to individuals who are involuntarily committed to a mental institution. Youngberg v. Romeo, 457 U.S. 307, 315 (1982). In Youngberg, Pennsylvania had conceded that committed individuals possessed rights to “food, shelter, clothing, and medical care.” Id. The Court reasoned that they also had the right to safe living conditions: “If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed—who may not be punished at all—in unsafe conditions.” Id. at 315-16.
The Court has also determined that individuals in police custody who were injured while being apprehended have a due process right to medical care. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). The Eighth Amendment had no application in that case as the injured party was not a convicted prisoner. But, the Court paralleled its reasoning in Youngberg: if prisoners have such a right then surely others in State custody have such a right as well. Id.; see also Loe v. Armistead, 582 F.2d 1291, 1294 (4th Cir. 1978) (recognizing protection for pretrial detainees under the due process clause of the Fifth Amendment as at least coextensive with the Eight Amendment protection afforded prisoners).
Summarizing this line of cases, DeShaney explained the nature of this right: when the State exercises its power to take custody of an individual it undertakes a constitutional duty to provide for her basic needs because it has taken control over her. DeShaney, 489 U.S. at 200. This right is based on a special relationship between the State and the individual in its custody; the State’s duty arises from its decision to limit the individual’s capacity to act on her own
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behalf. The State’s obligations are therefore not to the public at large, but limited to those individuals it exercises control over.
Pertaining to the instant case, a number of courts have concluded that this sort of special relationship is formed when the State takes a child away from his or her parents and takes over custody of the child. The same reasoning applies: the State exercises control over children in State custody and has a commensurate duty of care to them. In 1990 the Fifth Circuit stated that while in State custody, the child is entitled to “constitutionally adequate care.” Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990). Defendants point out that Griffith involved determining whether the State has a constitutional duty to children after they leave foster care and concluded that there is no such duty. (D.E. 198, at 12). But, the discussion in Griffith makes sense only presuming a Fourteenth Amendment right exists. While dicta, the Griffith court stated: “TDHS [Texas Department of Human Services] created a ‘special relationship’ with the Griffiths’ children when it removed them from their natural homes and placed them under state supervision. At that time, TDHS assumed the responsibility to provide constitutionally adequate care for these children.” Griffith, 899 F.2d at 1439. The Fifth Circuit in Griffith merely declined to recognize an ongoing special relationship that persists after a child who was once in the State’s care has been adopted. Id. at 1439-40. Indeed, the Fifth Circuit has cited Griffith for just this proposition: that when State social agencies remove a child from her natural home and place her under State supervision a special relationship is created. Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137, 146 (5th Cir. 1992) reh’g granted and opinion vacated, 987 F.2d 231 (5th Cir. 1993) and on reh’g, 15 F.3d 443 (5th Cir. 1994). DeShaney, which Griffith’s logic is based on, is similar: the Court held that the State had no obligation to protect the child from his father because, though it had taken custody of the child before, it had since returned him to his father’s
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custody. DeShaney, 489 U.S. at 201. The Court recognized that if DeShaney had been in the custody of the State rather than that of his parents it would be a different case and might be “sufficiently analogous to incarceration or institutionalization.” Id. at 201 n.9.
The Fifth Circuit recognized this right more explicitly in Hernandez v. Texas Department of Protective & Regulatory Services, 380 F.3d 872, 880 (5th Cir. 2004). Hernandez held that foster children enjoy a substantive due process right “to personal security and reasonably safe living conditions” based on the special relationship between them and the State. Id. The existence of the right was not disputed on appeal, and the district court had found that its existence was clearly established for the purposes of qualified immunity. Id. (citing Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 2002 WL 31689710 (N.D. Tex. Nov. 22, 2002)); see also Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 859 (5th Cir. 2012) (recognizing foster care as one of the “strictly enumerated” situations where the State assumes a duty of care sufficient to create a special relationship).
The Fifth Circuit is not alone. While noting that there are important differences between prisoners and foster children, the Third Circuit found the analogy persuasive. Consistent with DeShaney, it held that the salient feature that creates duties on the part of the State is that it “by affirmative act, renders the individual substantially ‘dependent upon the state … to meet [his or her] basic needs.’” Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (quoting D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F. 2d 1364, 1372 (3d Cir. 1992)). The Second Circuit has held that there is a constitutional right not to be placed in a setting known to be unsafe. Doe v. N.Y. Dep’t of Soc. Servs., 649 F.2d 134, 143 (2d Cir. 1981), after remand, 709 F.2d 782. On the basis of Youngberg, the Eleventh Circuit also has recognized a substantive due process liberty interest in reasonably safe living conditions for foster children. Taylor v.
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Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987). Similarly, the Sixth Circuit has recognized that “due process extends the right to be free from the infliction of unnecessary harm to children in state-regulated foster homes.” Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir. 1994) (quoting Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir. 1990)). Distinguishing a case where a child was injured by a foster parent the State placed her with from DeShaney, the Seventh Circuit concluded that when the State had taken the child away from her parents and into its custody, it could no more place a foster child in a situation of danger than it could a prisoner. K.H. through Murphy v. Morgan, 914 F.2d 846, 848-49 (7th Cir. 1990). Indeed, “courts have found, with apparent unanimity, that [a special] relationship exists in the foster-care context.” Connor B. v. Patrick, 771 F.Supp. 2d 142, 160 (D. Mass. 2011).
Children in the State’s care have a right to be free from an unreasonable risk of harm that would compromise their personal security or deprive them of reasonably safe living conditions. Hernandez, 380 F.3d at 880. This substantive due process right “encompasses a right to protection from psychological as well as physical abuse.” R.G. v. Koller, 415 F.Supp. 2d 1129, 1156 (D. Haw. 2006). Similarly, Marisol A. held that children in foster care “have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being.” Marisol A. by Forbes v. Giuliani, 929 F.Supp. 662, 675 (S.D.N.Y. 1996) aff’d sub nom. Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) (citing B.H. v. Johnson, 715 F.Supp. 1387, 1395 (N.D. Ill. 1989)); accord K.H., 914 F.2d at 848 (“The extension to the case in which the plaintiff’s mental health is seriously impaired by deliberate and unjustified state action is straightforward.”); Aristotle P. v. Johnson, 721 F.Supp. 1002, 1010 (N.D. Ill. 1989) (“The fact that the plaintiffs’ injuries are psychological rather than physical is of no moment.”).
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Harm, both psychological and physical, can be inflicted in a variety of ways, including neglect, physical abuse, sexual abuse, and psychological maltreatment. See, e.g., (PX 14 at vii; PX 435 § 6000-2). The K.H. court, relying on Youngberg, provided the following general formulation for the State’s obligations: “the Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically and psychologically.” 914 F.2d at 852; see also id. at 849 (“Once the state assumes custody of a person, it owes him a rudimentary duty of safekeeping no matter how perilous his circumstances when he was free.”). In the context of the present case, this characterization of substantive due process rights is especially important as children in the PMC are practically guaranteed to have experienced significant trauma before entering the State’s care. As one presentation by DFPS summarized: “Because children in the conservatorship of DFPS are victims of abuse and/or neglect, the trauma they have endured can result in significant treatment needs. These children experience not only trauma, but great loss by being removed from their homes, schools and friends. Also, the children often have serious underlying medical and developmental needs.” (PX 322 at 11).
The right described in the previous paragraphs is much more limited than those rejected in Griffith. The Griffith plaintiffs asserted that the State had an obligation “to have maximized their personal psychological development” and to place them in “unrestrictive circumstances.” Griffith, 899 F.2d at 1438-40. The cases cited above only hold the State cannot treat the marked deterioration of those in its care with cavalier indifference. Griffith also differs from the instant case as the plaintiffs in Griffith had been adopted, and so were no longer in the State’s care. Id. at 1439-40.
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Those entitled to this duty of care do not need to wait to suffer an actual harm in order to obtain relief. This has been made most explicit in the prison context, leading the right to be characterized as the right “not to be subjected to the unreasonable threat of injury.” Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (“Prisoners have the right not to be subjected to the unreasonable threat of injury or death by fire and need not wait until actual casualties occur in order to obtain relief from such conditions.”); see also Leeds v. Watson, 630 F.2d 674, 675-76 (9th Cir. 1980) (noting that the infrequent use of a room that poses a fire hazard “does not lessen the hazard it presents to the lives of persons incarcerated there.”); Battle v. Anderson, 564 F.2d 388, 395 (10th Cir. 1977); Coniglio v. Thomas, 657 F.Supp. 409 (S.D.N.Y. 1987) (finding that an absence of smoke barriers and an effective system of smoke management in a prison unit violated the right of the class of prisoners housed there not to be subjected to an unreasonable risk of death or injury by fire). Prisoners have a right to be free from an unreasonable threat of injury and they can suffer a legal injury if that right is violated by, for example, unreasonably unsafe fire safety conditions, without the risk becoming actualized and causing physical injuries. Having suffered the legal injury they can obtain relief even if, in the fire safety cases, there has been no fire at the prison.5 The principle here is similar to the one in Whirlpool and Butler v. Sears described in Section III.A.2., supra. The legal injury is the risk of harm.
So, the Fourteenth Amendment right upon which Plaintiffs base their claim can be characterized as a right to be free from an unreasonable risk of harm while in the State’s custody. Again, in the words of Hernandez, children in foster care have “a constitutional right to personal security and reasonably safe living conditions.”6 Hernandez, 380 F.3d at 880; see also Hall v.
5 Though the occurrence of a fire or fires at the prison could be used as evidence that the risk exists. 6 Defendants argue that the harm Plaintiffs base their claim on is too attenuated to give rise to a cause of action. E.g., (D.E. 163 at 28); (D.E. 198 at 11 n.4). Defendants’ argument misconstrues the contours of the Fourteenth Amendment right possessed by an individual in the State’s custody. The right itself is to be free from the
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Smith, 497 Fed.Appx. 366, 377 (5th Cir. 2012). Plaintiffs do not need to wait until they are actually abused or suffer from unsafe living conditions. They have a right to be free of the unreasonable risk of harm, and if they suffer that risk now, they have suffered a legal injury. See D.G. v. Yarbrough, 278 F.R.D. 635, 638 (N.D. Okla. 2011) (“Thus, the court is mindful that the issue here is not what percentage of children have actually suffered abuse while in state custody, but whether and to what extent foster children are at imminent risk of serious harm.”) (emphasis in original). The same right described a different way is that Plaintiffs are entitled to safeguards that prevent them from deteriorating either physically or psychologically.
To succeed in a substantive due process claim of this sort a plaintiff must show that the State has acted in a way such that it has breached the duty of care that it owes to those in State custody, and that the State action that did so rises to the requisite level of culpability. In making this determination courts sometimes ask whether the complained of conduct “shocks the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); Rochin v. California, 342 U.S. 165, 172 (1952). In this case Plaintiffs challenge policies rather than discrete executive actions, so on this test they would need to show that those policies are such that they shock the conscience. This standard, however, can be difficult to apply as it is hard to flesh out a more concrete rule to apply uniformly. See, e.g., Rochin, 342 U.S. at 179 (Douglas, J., concurring). Courts have articulated culpability standards to further define the test, two of which—deliberate indifference and absence of professional judgment—the parties here have disputed. (D.E. 195, at 48-49).
In the Fifth Circuit, a plaintiff generally must prove deliberate indifference, which requires showing that there was conscious disregard of a known and excessive risk to the
unreasonable risk of harm. That risk need not be realized in order for a claim to be actionable—a plaintiff must rather show that the policy in question creates a risk that rises to the level of an unreasonable risk of harm. Whether or not Plaintiffs here can succeed in showing this is a question for the merits.
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victim’s health or safety. Hernandez, 380 F.3d at 880 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994); McClendon v. City of Columbia, 305 F.3d 314, 326 n.8 (5th Cir. 2002)); see also Hall, 497 Fed. Appx. at 377 n.16; Smith v. Tex. Dep’t of Family & Protective Servs. Child Protective Servs., 2009 WL 2998202 (W.D. Tex. Sept. 15, 2009). Deliberate indifference is determined by a subjective standard of recklessness: the defendant “‘must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference.’” Smith v. Renoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (quoting Farmer, 511 U.S. at 837). “Deliberate indifference is a degree of culpability beyond mere negligence or even gross negligence; it must amount to an intentional choice, not merely an unintentional oversight.” Hall, 497 Fed. Appx. at 377 (quoting James v. Harris Cnty., 577 F.3d 612, 617-18 (5th Cir. 2009)). The state of mind can be inferred, however, if the risk of harm is obvious. Hernandez, 380 F.3d at 881 (citing Hope v. Pelzer, 536 U.S. 730, 738 (2002)); see also Farmer, 511 U.S. at 842.
To succeed on the deliberate indifference standard Plaintiffs would have to show that the systematic deficiency causes an unreasonable risk of harm and that Defendants had actual or constructive knowledge of that risk, or alternatively that such knowledge should be inferred from the obviousness of the risk. Defendants can defeat the claims by showing there is no such deficiency, there is no such risk, or they have no actual or constructive knowledge of that risk. The question on the merits would be whether or not the policy or practice Plaintiffs allege creates an unreasonable risk of harm is such that Defendants, in continuing it by action or inaction, are deliberately indifferent to class members’ rights to personal security and reasonably safe living conditions.
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The alternative standard, absence of professional judgment, is described in Youngberg. A decision “if made by a professional, is presumptively valid; liability may be imposed 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, 457 U.S. at 323. This standard has been employed by other courts in the foster care context. See, e.g., Yvonne L. v. N.M. Dep’t Human Servs., 959 F.2d 883, 894 (10th Cir. 1992); K.H. 914 F.2d at 853-54; Brian A. by Brooks v. Sundquist, 149 F.Supp. 2d 941, 953 (M.D. Tenn. 2000); T.M. ex rel. Cox v. Carson, 93 F.Supp. 2d 1179 (D. Wyo. 2000); Wendy H. By & Through Smith v. Philadelphia Dep’t of Human Servs., 849 F.Supp. 367 (E.D. Pa. 1994); LaShawn A. v. Dixon, 762 F.Supp. 959 (D.D.C. 1991) aff’d and remanded on other grounds sub nom. LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993). Plaintiffs also argue that it should be employed in this case for injunctive relief, since other courts have employed it in lieu of the deliberate indifference standard when no money damages are sought. (D.E. 164 at 17-18); see, e.g., LaShawn A., 762 F.Supp. at 996 n.29. The standard described above is often referred to as simply the professional judgment standard, but such labeling can be misleading. It is not the case that the United States Constitution compels Texas to adopt a particular standard to organize its foster care system around. Instead, under the professional judgment standard Plaintiffs must show that an alleged systematic deficiency is such a departure from professional standards and practice that it cannot have been based on professionals exercising their professional judgment.
This is not to say that various professional standards may have no bearing on the case: compliance or lack of compliance with a professional standard, if admissible, can be evidence for or against finding a constitutional violation. Such standards are just not the substance of a
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constitutional duty. A substantial departure from all relevant professional standards can also indicate that a professional was subjectively aware of and opted to disregard a risk. Put another way, accepted professional standards can make a risk of harm obvious in the manner Hernandez refers to. Indeed, though the two standards are different in form, in practice they are not so different. Yvonne L., 959 F.2d at 894 (“As applied to a foster care setting we doubt that there is much difference in the two standards”).
Plaintiffs argue that it is not necessary at this point in the litigation to determine which standard to apply. (D.E. 195, at 48-49). The Court agrees as the issue has not been fully briefed, and it is not necessary to decide the appropriate standard to employ on the merits in order to determine the appropriateness of class certification. In considering class certification the relevant question is whether the Plaintiffs’ claim, under either standard, will turn on common questions of fact or law.
In order to conduct a rigorous analysis of the Motion for Class Certification it has been necessary to flesh out the Plaintiffs’ constitutional claim. Plaintiffs allege systematic deficiencies related to the General Class and each subclass. Their claims are based on class members’ Fourteenth Amendment rights as foster children in State custody to personal security, to reasonably safe living conditions, and to have steps taken to prevent their physical or psychological deterioration. As the claims under consideration here are based on these Fourteenth Amendment rights, those rights define, and to the extent relevant limit, the scope of Plaintiffs’ claims. For Plaintiffs to be entitled to class certification with regards to these claims the policies or practices they identify must allegedly impair the Fourteenth Amendment rights described above. For example, Plaintiffs can make out a claim that a given policy instituted by Defendants subjects children in foster care to an unreasonable risk of psychological harm.
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VI. Evidence Before the Court In the course of its rigorous analysis of Plaintiffs’ motion for class certification, the Court
has reviewed numerous exhibits submitted by the parties and held a three day Class Certification Hearing on January 22-24, 2013. The evidence falls into three broad categories. First, the Court heard testimony and received studies prepared by experts on child welfare management, administration, and evaluation of child welfare systems, which are described in more detail below. Second, the Court heard testimony and excerpts of depositions from persons who are involved in Texas foster care, such as employees of DFPS, private contractors who provide monitoring and review services to the State, and next friends of the named plaintiffs. Third, the Court was presented with numerous DFPS documents, including excerpts of the named plaintiffs’ case files, internal reports, appropriations requests to the Texas legislature, and communications amongst DFPS personnel.
Viola Miller was called as an expert witness by Plaintiffs at the class certification hearing. Dr. Miller has a doctorate in special education. From 2003 to 2011 she served as Tennessee’s Commissioner of the Department for Children Services, a state cabinet-level position where she reported to the governor. Prior to that post, from 1995 to 2003, she was the Cabinet Secretary for the Kentucky Department of Families and Children, a comprehensive human services agency in that state. (PX 9B at 64). Dr. Miller thus has experience running two state-wide child welfare agencies. She has also been accepted as an expert in litigation similar to the instant case. D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635 (2011). For the purposes of this litigation Dr. Miller reviewed numerous documents produced by DFPS, datasets, and depositions. Class Cert. Hr’g 1/22/13 (Miller) at 147; (PX 9A). Dr. Miller had access to an
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array of sources, though she did not have access to a sample of case reviews. Class Cert. Hr’g 1/22/13 (Miller) at 157.
Defendants objected to Dr. Miller’s status as an expert on child welfare management, administration, and reform on two grounds. First, they objected to Dr. Miller drawing conclusions on the basis of her experiences in Tennessee and Kentucky, arguing that these observations should not be applied to Texas. E.g., (D.E. 198 at 48-50); Class Cert. Hr’g 1/22/13 (Miller) at 158, 164-66. But, Defendants identified no special characteristics of Texas—such as size or demography—that would render Dr. Miller’s extensive experience with child welfare systems inapplicable. Second, Defendants objected on the basis that Dr. Miller’s opinions are informed by the national standards articulated by the Child Welfare League of America (“CWLA”) and the Council on Accreditation (“COA”), and that since those standards are not, as a matter of law, the ones that determine liability under the Fourteenth Amendment, the testimony was not relevant to the issues before the Court. Class Cert. Hr’g 1/22/13 (Miller) at 177. As explained above, professional standards such as these do not control liability in a Fourteenth Amendment case. Although it would also be inaccurate to say that such standards are irrelevant; a finding that the State adhered to one of these standards would shield it from liability under Youngberg’s absence of professional judgment standard, for instance. That Dr. Miller relied, to some extent, on accepted professional standards in assessing Texas’ foster care system does not eliminate her years of experience in this field or render her observations irrelevant, especially since she was called upon to evaluate the performance of the Texas child welfare system and not its constitutionality. The Court accepted Dr. Miller as an expert in the fields offered. Id. at 167, 177.
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Daryl Kennedy Chansuthus has a Master of Science in Social Work and also has extensive experience in the child welfare systems. She has held several posts in Tennessee where she evaluated that state’s child welfare agencies and the services they provide. She monitored Tennessee’s compliance with the Brian A. Settlement Agreement, which touched upon all aspects of child welfare services, including caseworker workloads and training. Class Cert. Hr’g 1/23/13 (Chansuthus) at 259; see also (PX 21A). In particular, she developed protocols that determine what the agency’s actual practices are from reports and raw data. Class Cert. Hr’g 1/23/13 (Chansuthus) at 260. She later expanded these practices as the Tennessee Department of Children’s Services’ Director of Quality Assurance and Quality Improvement, creating comprehensive systems to monitor and evaluate child welfare management and practice. Id. at 262-63; (PX 21A at 2). From 2007 to 2011 she served as the Executive Director of the Tennessee Center for Child Welfare, where she continued to develop training and content analysis programs. Class Cert. Hr’g 1/23/13 (Chansuthus) at 265-66; (PX 21A at 1). Ms. Chansuthus thus has expertise in evaluating child welfare systems.
For this litigation Ms. Chansuthus prepared an expert report focusing on whether RCCL can adequately and consistently perform its oversight duties. Her conclusions were based on an analysis of documents provided by DFPS, including communications between DFPS personnel, workload data, and DFPS’s own assessments, drawing from her years of experience in the field. See (PX 21B; PX 21 at 3); Class Cert. Hr’g 1/23/13 (Chansuthus) at 268-69. Defendants incorrectly assert that Chansuthus’ expert report, Plaintiffs’ Exhibit 21, is not part of the record for this case. (D.E. 198 at 7). Plaintiffs’ Exhibit 21 was entered into evidence. Class Cert. Hr’g 1/23/13 (Chansuthus) at 277.
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Plaintiffs offered the testimony of two other experts. Jill Duerr Berrick was accepted as an expert on child welfare research with a focus on foster care. Class Cert. Hr’g 1/23/13 (Berrick) at 15; see also (PX 8A (Dr. Berrick’s curriculum vitae)). She prepared a review of the literature concerning the effects of caseload size on child welfare outcomes. Class Cert. Hr’g 1/23/13 (Berrick) at 11. The Court granted Defendants’ motion to exclude Dr. Berrick’s testimony on Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), grounds; the Court is capable of reviewing the literature, had it been included in the record, and discerning trends in the research. Class Cert. Hr’g 1/23/13 (Berrick) at 51-52; (D.E. 173 at 6 (citing United States v. Paul, 175 F.3d 906, 912 (11th Cir. 1999)).
Plaintiffs’ expert Donald Warren calculated weighted caseloads for DFPS caseworkers based on data provided by Defendants. Texas records caseloads idiosyncratically, though, see Section VII.B., infra, and Dr. Warren’s analysis did not adequately take this into account. Class Cert. Hr’g 1/23/13 (Warren) at 124-25, 318. So, the caseloads that Dr. Warren calculated do not offer much insight. In addition, Plaintiffs have not established any connection between a particular caseload number—either CWLA’s recommended maximum of 15 cases, COA’s of 18, or the State’s target caseload of about 25, see (D.E. 195 at 9; PX 234 at DFPS002413318)—and a derogation of class members’ Fourteenth Amendment rights that are the basis of the claims in this case.

VII.

General Class

At this point, Plaintiffs’ allegations on behalf of the General Class are not based on the

particular, tragic, experiences of the named plaintiffs. “[E]ven a ‘catalog of disquieting events is

not sufficient to demonstrate a pervasive pattern,’” Lightfoot v. District of Columbia, 273 F.R.D.

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314, 321-22 (D.D.C. 2011) (quoting Carter v. District of Columbia, 795 F.2d 116, 123-24 (D.C. Cir. 1986)), in and of itself. Instead, Plaintiffs assert that the Texas PMC has a structural deficiency of overburdening caseworkers with excessive caseloads. (D.E. 195 at 8). Plaintiffs contend that this subjects children in the PMC to a risk of being assigned a caseworker who has a caseload that is so high that she cannot fulfill her duties to the child, leading to too few visits to monitor the child’s well-being, inappropriate placements in the foster care system, failure to meet the child’s needs, and failure to develop and implement a plan for a permanent home. These conditions are alleged to combine to deny the members of the General Class their constitutional right to personal security and reasonably safe living conditions.
A. Numerosity On March 31, 2011 there were a total of 12,196 children in the PMC. (PX 2 at APPX 2077). This easily satisfies the numerosity requirement of Rule 23 described above and is not disputed by Defendants. And, as the children in the class are located throughout the State and their locations will change as placements change, which happens frequently among children in the PMC, Class Cert. Hr’g 1/23/13 (Gonzalez) at 71-72; id. (Liebgott) at 99-100; (PX 250), joinder is impractical. The Court finds the General Class satisfies the numerosity requirement of Rule 23(a)(1). Similar observations apply to three of Plaintiffs’ proposed subclasses.7 On August 11, 2011 there were 8,174 children in the Licensed Foster Care Subclass. (PX 2 at APPX 2077). On May 31, 2012 there were roughly 900 children in the Foster Group Home Subclass. (PX 298 (filed under seal)). And, on May 31, 2012 there were nearly 400 children in the Basic Care GRO Subclass. (PX 299 (filed under seal)). Like the members of the General Class, the members of
7 Numerosity is not discussed as to the Unverified Kinship Subclass, considered later.
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these subclasses are located throughout the State, making joinder impractical. The Court concludes that these subclasses are also sufficiently numerous under Rule 23(a).
B. Commonality In order to establish commonality, Plaintiffs must establish that there is a policy or practice on the part of the Defendants that is the source of the General Class’ alleged injury, and also that the claim arising out of that injury depends on common questions of law and fact. Even if Texas caseworkers are overworked, class certification would not be appropriate if these workloads were, for instance, the product of disparate, uncoordinated decisions by supervisors. This was the problem the Supreme Court identified with the putative class in Wal-Mart. That case involved a far-flung class action where the plaintiffs’ claims were based on sexual discrimination, namely denial of equal pay and promotions. Wal-Mart v. Dukes, 131 S. Ct. 2541, 2547 (2011). Pay and promotion decisions, however, were made by local store managers, and the overarching company gave them broad discretion. The class was held to not satisfy commonality and therefore denied certification because this discretion was the only corporate policy the plaintiffs could establish. As the Supreme Court pointed out, this is essentially the opposite of having any uniform policy, let alone a discriminatory one. Id. at 2554. Plaintiffs’ claim here is different. On behalf of the General Class, Plaintiffs make out a claim that caseworkers carry excessive caseloads, which results in class members being deprived of their Fourteenth Amendment rights. The workload of the State’s caseworkers—whether excessive or not—is the product of deliberate choices made by State actors. Naturally, the number of caseworkers the State employs affects their respective workloads, and this is a policy adopted by the State. Similarly, Texas has opted not to establish any guidelines regarding
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maximum or optimum caseloads, as Colleen McCall, Director of Field Operations for Child Protective Services, explained when she was deposed. Class Cert. Hr’g 1/22/13 (McCall) at 334 (“We do not have caseload limits.”); id. at 335 (stating that there are no DFPS guidelines for an optimal caseload). DFPS also does not have a practice of taking into account a child’s special needs when considering caseloads, or at least there is no evidence presently before the Court that it does so. Id. (Miller) at 186.
A policy or practice need not be officially adopted. As described above, a policy can be established through custom or through failing to act in the face of actual or constructive knowledge that there is likely to be a violation of constitutional rights. See Section III.A.2., supra. There is ample evidence on the record presently before the Court, described below, that caseworkers are overburdened, that this might pose risks to the children in the PMC, and that DFPS and other State officials had actual or constructive knowledge of these risks and have not acted to cap or otherwise limit caseloads. In addition, this case differs from Wal-Mart as DFPS caseworkers do not act with the sort of free-wheeling discretion that Wal-Mart managers enjoy in making employment decisions. A caseworker’s placement decisions, to take one example, must be approved and explained, see (PX 27), and caseworkers are closely supervised, Class Cert. Hr’g 1/22/13 (McCall) at 354 (stating that the ratio of caseworkers to supervisors is about one to six).
The Court therefore concludes that the workloads of DFPS caseworkers is a policy or practice as contemplated by Lightfoot. The Court now turns to the more complex issue of whether there is evidence in the record indicating that the workloads of caseworkers are excessive and whether those workloads are connected to the alleged harm. There is some inevitable overlap between these inquiries as whether or not caseworkers can carry out their
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tasks, especially safeguarding and monitoring the children in their care, is key evidence as to whether they are overburdened or not.
The workloads of Texas caseworkers is still something of an open question, even with the fairly extensive record before the Court. Texas calculates caseloads in terms of “stages,” each of which represents an aspect of the work that needs to be done with a child or her family. E.g., Class Cert. Hr’g 1/24/13 (Deckinga) at 30-32; (PX 430 at 9; DX 24). Texas stages include Intake, Investigation, Family Preservation, Child Substitute Care (relating to children removed from the home), Family Substitute Care (a stage created for families when a child has been removed from the home), Foster and Adoptive Home Development, Kinship, and Adoption. (PX 43). The same child, then, could represent several stages simultaneously. She could be in the Child Substitute Care and Adoption stages while her family was in the Family Substitute Care one. As Audrey Deckinga, Assistant Commissioner of the Child Protective Services Division of DFPS noted: “There could be conservatorship sub care and adoption stages for many of these children.” Class Cert. Hr’g 1/24/13 (Deckinga) at 32. It is difficult, then, to understand just what the caseloads for Texas caseworkers are and to compare them to professional standards and leading research. Although, as explained in Section V., such standards do not constitute the constitutional standard for liability, a point which Defendants have urged, see e.g., (D.E. 198 at 14; D.E. 163 at 44 (citing Braam v. State, 81 P.3d 851, 861 (Wash. 2003)); id. at 66; Class Cert Hr’g 1/22/13 at 57, 72 (opening statements).
At the Class Certification Hearing, the State was able to produce rough average caseload numbers in terms of children rather than stages. The average caseload on August 31, 2011 was 20.59 children and the average on August 31, 2010 was 18.83. Class Cert. Hr’g 1/24/13 (Stephens) at 272. However, these numbers do not separate out TMC and PMC children, and
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there is extreme variation in caseworker workloads. In February 2012 the State-wide average was 33.9 stages per caseworker, but caseworkers ranged from carrying 1 to over 100 stages. (PX 243); see also (PX 309 (as of June 30, 2012 caseworker caseloads ranged from 6 to 84 stages) (filed under seal)). This range is the rule rather than the exception: in the data before the Court, since 2009 some caseworkers have carried less than 10 stages while others have simultaneously carried more than 60. (PX 230). Extreme variation makes an average caseload measure less useful. The class member whose caseworker is responsible for only a handful of stages is not at risk due to caseworker overwork while the one whose caseworker is responsible for 95 stages might very well be. An average masks these differences.
That being said, there is considerable evidence in the record indicating that DFPS caseworkers carry excessive caseloads. Dr. Miller offered expert testimony concluding that Texas caseloads “are quite high and they are certainly out of compliance with national standards. And work that the State itself has done, DFPS has done, has indicated their awareness” of this. Class Cert. Hr’g 1/22/13 (Miller) at 183. The record contains numerous reports from DFPS and other State agencies indicating that caseworkers cannot handle the volume of work they are responsible for. In 2009, Texas created the Adoption Review Committee to, inter alia, conduct “an extensive review of the foster care system … and to develop ways to improve the foster care system by reducing the time a child is in the conservatorship of [DFPS] before being permanently placed.” (PX 323 at PLTF0019500). In its report, the Adoption Review Committee found that while those involved in the foster care system are well-intentioned and hard-working “the system in which they are operating is unable to effectively handle the volume and deeply complex natures of children brought into state care.” Id. at PLTF0019499. Among the Committee’s findings were “CPS caseworkers carry extremely high caseloads, often twice what
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is deemed best practice.” Id. at PLT0019506; see also id. at PLTF0019507 (recommending a reduction in caseloads). Unfortunately, these conditions have been long-standing ones in Texas. In 1996 a similar committee made the same recommendation regarding reducing caseloads. Id.; Class Cert. Hr’g 1/24/13 (Deckinga) at 24-26. And, since the Adoption Review Committee’s report was published in late 2010, caseloads have increased. Class Cert. Hr’g 1/24/13 (Deckinga) at 26. Further, Gail Gonzalez, the Director of Placement, Foster Adoptive Home Development, agreed that caseworkers carried high caseloads. Class Cert. Hr’g 1/23/13 (Gonzalez) at 70.
There is evidence that DFPS is also significantly understaffed. A DFPS work measurement time study conducted in 2010 found that the agency needed approximately 200 additional conservatorship stage workers. (PX 234 at 4). In fiscal year 2012, roughly 650 DFPS positions that were authorized went unfilled. (PX 39). Likewise, in its budget requests to the Texas legislature DFPS has expressed a need for additional staff, lest caseloads increase. “Without additional staff, caseloads would increase, which results in significant child and adult safety issues.” (PX 12 at Administrator’s Statement 2) (emphasis added); see also (PX 13 at 652 (noting that unless 50 full-time staff were added to conservatorship workers caseloads would increase from the projected 28.8 per worker to 29.5 per worker)). Workers involved in kinship care seem to be especially understaffed. In its August 16, 2012 appropriations request, setting the budget for fiscal years 2014 and 2015, DFPS stated that “staffing to support kinship placement has not grown since [fiscal year] 2009 and is now insufficient to properly assist kinship caregivers.” (PX 13 at 662). The agency requested additional funding to add more caseworkers, reducing the “very high” caseload of 47.2 per worker (projected to increase to 53.8 in fiscal year 2015) to 40. Id. In addition, supervisors working in kinship placements were
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responsible for 12 workers, and DFPS asked for funds so that it could reduce this number to 7. Id. The increasing staffing and funding needs of DFPS seem to be driven by population increase, there has been an 18% increase in the Texas child population over the past 10 years, Class Cert. Hr’g 1/24/13 (Deckinga) at 39, and decreasing federal support, (PX 13 at 649-50; PX 319 at Administrator’s Statement 1-2).
There is also evidence of substantial turnover in DFPS personnel. The agency has lost, on average, 28% of its caseworkers annually. (PX 107 at 4). The turnover rate has ranged from 23.6% in fiscal year 2009 to a staggering 34.1% in fiscal year 2007. Id. In fiscal year 2012, the latest data presented to the Court, DFPS caseworkers had a turnover rate of just over 24%. (PX 387). Turnover is especially acute with entry-level caseworkers at approximately 38% in fiscal year 2012. (DX 49 at DFPS005158063; PX 387); Class Cert. Hr’g 1/22/13 (McCall) at 346 (agreeing with the statement that “almost 36 percent of all your entry-level workers leave each year”); Class Cert. Hr’g 1/24/13 (Deckinga) at 63-64 (stating that entry-level turnover was about 37%). Turnover has been a serious area of concern for DFPS, as Ms. McCall explained: “Turnover is something that we’re always concerned about what we can do to impact it …” Class Cert. Hr’g 1/22/13 (McCall) at 347. In fall 2012 DFPS completed a Human Resources Management Plan as required by the Texas legislature to attempt to improve employee retention. (DX 49). The Plan noted that “agency-wide turnover has increased in [fiscal year] 2012 … we continue to experience high rates of turnover.” Id. at DFPS005158067; see also (PX 319 at PLTF0007007 (noting the importance of staff retention)).
High rates of staff turnover are both indicative of and exacerbate overworked personnel. In the words of a report by the U.S. Department of Health and Human Services: “Heavy caseloads and workloads have been cited repeatedly as key reasons that workers leave the child
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welfare workforce.” (PX 340 at JDB0000354-55 (internal citations omitted)); see also id. at JDB0000357 (describing turnover as “both a consequence and a cause of high workloads”). More specifically applicable to Texas, the Adoption Review Committee found that being overworked was by far the most popular reason for quitting DFPS—approximately 45% listed it as the reason for quitting, with supervisors being the next most popular at about 28%. Decreased workload was the most popular suggestion for improvement—making up 50% of the sample as compared to work environment, the next most popular suggestion, making up only 29%. (PX 323 at PLTF0019527). In a 2012 survey 38% of DFPS employees said that the amount of work they are asked to do is unreasonable and 35% did not feel that the work environment supported a balance between work and personal life. (DX 49 at DFPS005158064). Along similar lines, DFPS explained in its August 2010 Legislative Appropriations Request that “Protective services is a stressful job, made even more so when caseloads are high,” (PX 319 at PLTF0007007), and that “High caseloads lead to high worker turnover, further exacerbating high caseloads,” id. at PLTF0007562. Dr. Miller had analogous experiences with the Tennessee and Kentucky child welfare systems: “as we added caseworkers and reduced caseloads, we were able to significantly reduce those turnover rates.” Class Cert. Hr’g 1/22/13 (Miller) at 191-92.
Newly-hired caseworkers must be trained and cannot take on the full responsibilities of an experienced caseworker, so turnover exacerbates the existing workload. E.g., (PX 320 at PLTF0007562); Class Cert. Hr’g 1/22/13 (McCall) at 347 (“as folks are newer in their careers they’re probably not as skilled as the folks who have been around … longer … we do believe the longer people stay with us, the better they get at what they do.”). DFPS caseworkers begin with a 12-week training program, and it takes two years, during which time they are learning about the job, for them to carry a full caseload. (DX 49 at DFPS005158064). Thus, even if DFPS
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were able to easily replace all of the personnel it lost due to turnover, the agency’s effectiveness would still be impaired as the novice caseworkers would need to acquire the necessary skills. And, that assumes a best-case scenario that the position does not remain vacant for long. While there is a vacancy, of course the caseloads for all the remaining caseworkers increase correspondingly. E.g., (PX 162 (e-mail stating that due to leave, turnover, vacant positions, and an employee being new the remaining caseworkers would have “high” workloads)).
Further, turnover makes a caseworker’s job, in particular, more difficult. Monitoring a child’s safety and well-being requires the caseworkers to build a trusting relationship with the child. Class Cert. Hr’g 1/22/13 (Miller) at 191; see also (PX 323 at PLTF0019506 (“Children have a better chance of achieving permanency quickly if they have only one caseworker during their stay in foster care.”)). A “revolving door” of caseworkers makes this rapport difficult to establish, especially because all PMC children have had their lives destabilized by being removed from their homes and, in some cases, their communities. Named plaintiff S.A. provides an extreme example: since entering care she has had twelve different caseworkers. (D.E. 1 at 15). As in McReynolds, there is a “vicious cycle” here. Caseworkers with too little time, either by dint of being too new to the job or being overburdened, will find it difficult to build the necessary rapport, which, in turn, increases their effective workload and encourages staff turnover.
Plaintiffs have established a policy or practice on the part of Defendants to assign or allow caseworkers to have these high workloads. What remains is to connect that policy or practice to the alleged harm, namely a violation of class members’ Fourteenth Amendment right to personal security and reasonably safe living conditions. The Court first notes that Plaintiffs’ argument on this point is intuitive: a higher caseload means that a caseworker can devote less
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time and energy to each case, and naturally class members’ safety is affected by the amount of time and energy their caseworkers can devote to their respective cases. This is especially true since PMC children often represent complex or difficult cases. (PX 323 at PLTF0019499). As stated previously, Plaintiffs are allowed to rely on common sense inferences at the class certification stage. Kase v. Salomon Smith Barney, Inc., 218 F.R.D. 149, 152 (S.D. Tex. 2003) (citing Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1039 (5th Cir. 1981)).
In addition, Plaintiffs have presented considerable evidence that high caseloads can threaten the safety of children in the PMC. DFPS documents state: “Caseworkers are responsible for making sure children are safe and their needs are being met.” (DX 13 at 4). Yet, a number of DFPS documents also explain that high caseloads make it difficult for caseworkers to succeed at this task: “High caseloads cause quality casework to suffer, thus putting children in our system further at risk of harm,” (PX 319 at PLTF0007109), and “The higher the caseload, the harder it is to make the required monthly face-to-face contact with children in foster care and their parents. National data shows that regular, meaningful contact is directly related to … increase[d] child safety,” (PX 13 at 652). DFPS has repeatedly acknowledged the importance of regular visits from a caseworker: “Caseworker visits are a critical element in maintaining the safety and well-being of children in foster care.” (PX 382 at VM0008077); see also (PX 324 at PLTF0027552 (“Regular visits allow the caseworker to ensure the safety and well-being of the child …”); PX 234). In spite of the importance of these visits, in 2010 almost 20% of children in the State’s care were not receiving monthly visits from their caseworkers, and that value represents a substantial improvement from preceding years. (PX 15 at 314). Texas has been improving in this regard; in fiscal year 2011 90% of foster care children were visited by their
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caseworkers on a monthly basis. (DX 28 at DFPS005458049); see also (PX 235 (listing average monthly face-to-face contacts with child in care completed in fiscal year 2011 at 95.2%)).
None of the foregoing depends on the Court endorsing or adopting a particular caseload number, such as those recommended by COA or CWLA. The evidence that DFPS caseworkers are overworked comes from expert testimony, the agency’s own documents, and inferences from facts in the record. It further bears noting that there is absolutely no evidence that DFPS intentionally maintains high caseloads in order to undermine the safety or well-being of children in the PMC. The instant case is thus similar to both McReynolds—where seemingly benign policies were alleged to cause the harm—and Young—where the defendants’ failure to act constituted a policy or practice sufficient to establish commonality.
Plaintiffs also allege that overburdened caseworkers cause class members to experience repeated placement moves. E.g., (D.E. 195 at 15-16). Children in the PMC frequently change placements. Six of the named plaintiffs have experienced more than 10 different placements in the Texas foster care system. (D.E. 160 at 4). Named plaintiff M.D. had three foster placements in just a six month period. (D.E. 1 at 5-6). D.I. was in one placement for only 10 days, id. at 9, while S.A. has had a staggering 21 placements since entering the PMC, id. at 13-14. While in the custody of the state, D.P. and T.C., who were once named plaintiffs in this case but have since been replaced, were moved 28 (including 16 times in a three and a half year period) and 20 times, respectively. Id. at 23, 25, 27-28.
These named plaintiffs are indicative of a broad trend. Over 40% of children who have been in the State’s care for between 12 and 24 months have had more than two placements. That is, they are averaging more than one placement per year. For children in care for more than 24 months, nearly 80% have had more than two placements. Class Cert. Hr’g 1/23/13 (Gonzalez) at
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71-72; (PX 15 at 318; PX 48 at 12). Children in the PMC average 4.5 placements, with more than one placement move per year, and the average number of placements increases the longer a child is in the State’s care. (PX 250); see also Class Cert. Hr’g 1/23/13 (Liebgott) at 99-100.
Plaintiffs’ causal theory seems to be that a caseworker with sufficient time and resources can do a better job finding a placement suited to the child. The result would be an increased likelihood that any given placement is permanent, or at least longer-term and stable, because it fits the needs of the child. Defendants’ practices and policies regarding caseworker workload, then, contribute to the considerable number of placements that each class member experiences.
This sort of shuttling of foster care children through a number of placements can cause psychological harm. Class Cert. Hr’g 1/23/13 (Gonzalez) at 65-66; (PX 12 at 17 (Administrator’s statement) (listing foster care moves as a factor that lead to poorer outcomes for the children)). For this reason, frequent placement moves have sometimes been recognized as giving rise to a Fourteenth Amendment claim. A Seventh Circuit panel was divided over this issue in K.H. The majority held that a right to be free from a “general practice of shuttling children among foster parents” was not clearly-established for the purposes of qualified immunity, which left open the possibility that such a right could be established in later litigation, especially in an equity action such as this one. K.H. through Murphy v. Morgan, 914 F.2d 846, 853 (7th Cir. 1990). Writing for the majority, Judge Posner opined that frequent placement moves are not a harm in and of themselves—such moves may be necessary to safeguard the child’s safety—but they indicate systematic failings in foster care. Id. Such failings can inflict harm on class members, so on that understanding placement moves could form the basis of a Fourteenth Amendment claim—they would be a symptom that provides evidence that there are failings and Fourteenth Amendment violations in the foster care system. Concurring in part,
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Judge Coffey wrote: “I am of the opinion that the allegations regarding K.H.’s ‘9 placements in a period of approximately three and a half years,’ together with the serious traumatic experiences (physical and sexual assaults) K.H. suffered during these myriad placements might conceivably establish a violation of the due process clause as to care and judgment as Youngberg recognized.” Id. at 865 (Coffey, J., concurring in part and dissenting in part). More recently in a class action on behalf of Massachusetts foster children, the Connor B. court listed “shuttling [class members] among foster families without any hope of finding a permanent home” among the alleged systemic failures of that state’s child welfare system, holding that those deficiencies together were sufficient to give rise to a Fourteenth Amendment claim. Connor B. ex rel. Vigurs v. Patrick, 771 F.Supp. 2d 142, 163 (D. Mass. 2011).
To prevail on the merits with this claim, Plaintiffs will have to prove a causal connection between the State’s caseworker workload and an unconstitutional risk of harm. At class certification, though, they do not need to prove that they are entitled to relief based on their claims; they need only make out a claim on behalf of the class. They have done so here. The Court finds the relationship between caseworkers’ workloads and class members’ safety persuasive. Caseworkers are, in effect, these children’s fire alarms. They are the first and best mechanism to ensure the class members’ safety, i.e., to ensure that the child is not suffering any harm or abuses. A caseworker that is so overburdened that she cannot visit the children she is responsible for to keep apprised of their well-being, or if she cannot build enough of a rapport to do so effectively, cannot fulfill this function. The same is true if the caseworker cannot identify suitable, stable placements for the children in her care, necessitating frequent placement moves. In such circumstances, a caseworker is analogous to a faulty fire alarm or other safety precaution, and courts have considered claims based on shoddy or inadequate safety measures on
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behalf of those in the State’s custody. See Section V., supra. The Court’s reasoning here parallels D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635 (N.D. Okla. 2011), which in a similar case concluded that excessive caseloads for caseworkers, as well as high turnover rates in child welfare agencies, could pose a threat to foster care children. Citing ample evidence, the D.G. court held that “manageable caseloads for child welfare workers are important to ensure that children are kept safe from harm.” Id. at 641. The LaShawn A. court reached a similar conclusion, holding: “To the extent that certain services, such as appropriate placements and case planning, are essential to preventing harm to the children in the District’s custody, this Court holds that the children have a constitutional liberty interest in those services.” LaShawn A. v. Dixon, 762 F. Supp. 959, 993 (D.D.C. 1991) aff’d and remanded sub nom. LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993); see also Wendy H. By and Through Smith v. City of Philadelphia, 849 F.Supp. 367 (E.D. Pa. 1994) (citing LaShawn A. as persuasive).
To what extent caseworkers are overworked, whether this overwork is significant enough to subject the members of the General Class to an unconstitutionally unreasonable risk of harm, and whether the State has sufficient mechanisms in place to mitigate those risks8 are the issues central to the Plaintiffs’ claim. Resolving them will determine the validity of the common General Class Fourteenth Amendment claim in “one stroke.” If, for example, it is proven at trial that caseworkers are not so overworked that they fail to provide constitutionally adequate care, then that will resolve all of the class members’ claims at once; the State’s policies regarding caseworker workloads would be found not to violate the Fourteenth Amendment.9
8 DFPS may have informal means to help alleviate high caseloads, such as relying on local supervisors. Class Cert. Hr’g 1/22/13 (McCall) at 344, 342, 336. 9 Of course, some members of the class may still be able to bring individual claims on the grounds that their caseworkers acted so as to subject them to an unreasonable risk of harm or unsafe living conditions. The actions of those caseworkers rather than the State’s policies would be at issue in those cases. Although both cases would be based on their respective plaintiffs’ Fourteenth Amendment rights, they would be different claims.
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Defendants contend that Plaintiffs’ Fourteenth Amendment claim necessitates an individualized inquiry into the circumstances of each class member, defeating commonality. (D.E. 163 at 18-20; D.E. 198 at 13). This claim is not persuasive. Under either the deliberate indifference or professional judgment standard, whether an identified policy violates a class’ due process rights does not entail individualized inquiries. To prevail under deliberate indifference, the Plaintiffs must show that the State officials disregarded a known or obvious risk to the class members’ safety. This showing would hinge on the information available to the State as well as the effects of the policies and practices it opted to implement (i.e., did they actually pose a risk?). It does not hinge on the individual circumstances and characteristics of class members. Similarly, the absence of professional judgment standard holds State officials liable only when the policy or practice that causes harm has no basis in professional judgment. These culpability standards turn on the Defendants’ mental states and justifications for their decisions, respectively, not on the circumstances or characteristics of class members.
Defendants’ argument also mistakes the legal harm that is the basis of the General Class claim. Plaintiffs allege that these policies lead to an unreasonable risk of harm. As explained above, that risk alone is the legal injury. Individuals in the State’s custody have a constitutional right to be free from an undue risk of harm, or, the same thing stated another way, a right to reasonably safe living conditions. Whether some members of the putative class have actually suffered physical or psychological harm provides some evidence that this risk exists, but the actual harms suffered by some class members is not constitutive of the legal injury at the heart of Plaintiffs’ claim. As in the prison fire safety cases cited above, a plaintiff does not need to wait until actually harmed, until the risk of harm is realized, in order to bring a claim for inadequate safety precautions while in the State’s care. The fact of whether these policies subject class
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members to an unreasonable risk of harm, and whether that risk is so unreasonable as to rise to a constitutional violation, can be proven on the basis of classwide evidence without individualized inquiries. The risk of harm is general; a particular realization of that risk may entail an individualized inquiry.
After conducting a rigorous analysis of Plaintiffs’ General Class claim the Court finds that Plaintiffs have satisfied Rule 23(a)’s commonality requirement. Plaintiffs have alleged a deprivation of a legally-protected right (class members’ Fourteenth Amendment rights), have identified a common policy or practice on the part of Defendants (those relating to caseworker workloads), have presented evidence that shows that this policy or practice may impair that right, and have identified common questions of law or fact that will resolve their claim.
C. Typicality The State’s caseworker policies and practices affect all children in the Texas PMC, including the named plaintiffs.10 Their claims are therefore typical of the class. Defendants press a version of the argument above, maintaining that Plaintiffs have failed to show typicality because they have not provided detailed proof regarding the named plaintiffs’ individual claims such that the Court could compare those claims with those of the class as a whole. (D.E. 198 at 22-23). Rule 23(a)(3) does not, however, require named plaintiffs to have individual claims identical to the class claims—i.e., they need not have suffered identical harms or even have harms that were caused the exact same way. It is sufficient that their claims arise from the same or a similar course of conduct and share the same legal theory. In Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006), the plaintiff alleged that a design defect caused the accelerator to stick.
10 D.I., S.R., M.R., and J.R. are not included in this discussion, or in the adequacy of representation section below, due to their changed circumstances—they are discussed in Section XI., infra.
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The court of appeals affirmed certification of a class consisting of all state residents who leased or owned certain models of a van while under warranty, regardless of whether the class members had experienced the specific accelerator sticking problem that the named plaintiff had.
Daffin and the other class members’ claims arise from the same practice (delivery of non-conforming vehicle), the same defect (the allegedly defective throttle body assembly), and are based on the same legal theory (breach of express warranty). Typicality is satisfied despite the different factual circumstances regarding the manifestation of the accelerator sticking and Ford’s attempts to remedy manifested sticking. Daffin, 458 F.3d at 553; accord Butler v. Sears, Roebuck & Co., 702 F.3d 359, 362 (7th Cir. 2012) cert. granted, judgment vacated, 133 S. Ct. 2768 (2013) and judgment reinstated, 2013 WL 4478200 (7th Cir. Aug. 22, 2013); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 678 F.3d 409, 420 (6th Cir. 2012) cert. granted, judgment vacated sub nom. Whirlpool Corp. v. Glazer, 133 S. Ct. 1722 (2013) aff’d 2013 WL 3746205 (6th Cir. July 18, 2013). The instant case is the same. The named plaintiffs’ claims arise from the same practice (the State’s caseworker workload practices), the same “defect” (caseworkers cannot devote sufficient time to safeguard class members’ well-being), and are based on the same legal theory (violation of the State’s duties under the Fourteenth Amendment for those in its care). As above, the Defendants’ argument appears to mistake the nature of the class members’ alleged injury. Plaintiffs do not allege, at this point in the litigation, that policies or practices in the Texas foster care system cause a psychological harm that is common to all class members. Defendants are correct that such a claim would be difficult to sustain as a class action; variations in the particular circumstances and psychological states of each class member would abound. Plaintiffs’ claim, as the Court understands it, is much more general. They assert that these
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policies and practices subject class members to an unreasonable risk of harm, a legal injury that is common to all class members. The named plaintiffs’ claims are thus typical.
D. Adequacy of Representation Adequacy of representation requires that the class representatives fairly and adequately protect the interests of the putative class. Aspects of adequate representation also tend to merge into typicality and commonality. Those aspects of Rule 23(a)(4) have already been discussed at length above. Plaintiffs have submitted exhibits detailing the extensive experience of Plaintiffs’ counsel in complex and class action litigation. (D.E. 160-A-160-D). Defendants do not challenge the competence and zeal of Plaintiffs’ counsel of record. (D.E. 163 at 59). Accordingly, the Court finds that Plaintiffs’ counsel can adequately represent the class. Class representatives must satisfy the Court that they, and not their attorneys, are directing litigation. Unger v. Amedisys Inc., 401 F.3d 316, 321 (5th Cir. 2005). In their original Brief Opposing Class Certification, Defendants argued that the class representatives were not sufficiently informed to direct the litigation. (D.E. 163 at 59). They promised to “present evidence at the certification hearing that the class representatives have demonstrated woefully inadequate knowledge about the case and that their lack of knowledge and understanding has seriously impeded progress in the case.” Id. No such evidence was proffered. Instead, the Court heard testimony from Anna Ricker, next friend for J.S., H.V., and P.O.; Estella Vasquez, next friend for L.H. and C.H.; Bobbie Young, next friend for S.R., J.R., and M.R.; and Carla Morrison, next friend for Z.H. The Court approved their status as next friends if it had not already done so. They demonstrated knowledge of and engagement with the litigation.
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Additionally, the Court had previously approved many of the next friends and nothing has changed in the posture of the case that would undermine those findings. Thus, the Court finds that the next friends adequately represent the interests of the General Class.
These observations about adequacy of representation apply to the Licensed Foster Care Subclass, the Foster Group Home Subclass, and the Basic Care GRO Subclass as well. The Court finds that Rule 23(a)(4) has been satisfied with respect to those subclasses.
E. Rule 23(b)(2) Plaintiffs request that the Court enter a permanent injunction “requiring Defendants to ensure that all children in the General Class are assigned DFPS caseworkers whose individual caseloads do not exceed caseload standards established by the Child Welfare League of America and/or the Council on Accreditation.” (D.E. 179 at 31). Further, the Court may consider equitable remedies other than those suggested by Plaintiffs as it is well-established that equitable relief is flexible and intended to be tailored to the circumstances. E.g., Lemon v. Kurtzman, 411 U.S. 192, 199-201 (1973); Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944). The Court need not, at this stage, determine what remedy Plaintiffs would be entitled to if they prevailed on the merits of their claim. Rather, the Court must determine that the Plaintiffs’ claim is one that is susceptible to common, specific relief. Plaintiffs have alleged a unified harm to class members—an unreasonable risk of harm due to ineffective monitoring and planning because caseworkers are overburdened. The Court can conceive of a number of appropriate injunctions that would cure this injury, such as: setting maximum caseloads, hiring more caseworkers, or some overflow procedure that distributes cases so as to ensure that no caseworker is especially overburdened. See D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D.
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635, 636 (N.D. Okla. 2011) (holding that an injunction setting limits on the caseloads of caseworkers and their supervisors met the requirements of Rules 23(b)(2) and 65(d)). Critically, injunctions of this sort would require no additional individual assessments. In addition, Plaintiffs have suggested some standards by which to fix a caseworker’s workload—namely those articulated by CWLA and COA—as well as a system by which to weight cases according to the challenges they represent to DFPS staff. Class Cert. Hr’g 1/23/13 (Warren) at 113-15; cf. Shook II, 543 F.3d 596, 605-06 (10th Cir. 2008) (“The problem in our case is that plaintiffs have eschewed any effort to give content to what it would mean to provide adequate mental health staff, adequate screening …”). While these standards do not define Defendants’ duties under the Fourteenth Amendment, they may be useful in constructing an appropriate remedy.
The Court finds that the General Class satisfies Rule 23(b)(2).
VIII. Licensed Foster Care Subclass On behalf of the LFC Subclass, Plaintiffs present two Fourteenth Amendment Claims.
First, they argue that licensed foster care placements are not subject to sufficient monitoring and oversight. In short, the RCCL division of DFPS,11 charged with the task of regulating and licensing all CPAs and child care placements in the State, is not performing adequately to secure the LFC Subclass’ constitutional rights. Poor oversight of these placements, they allege, subjects members of this subclass to an unreasonable risk of harm and unsafe living conditions. (D.E. 179 at 14). Second, Plaintiffs argue that the State maintains “an inadequate placement array,” meaning that the only appropriate placements for a member of the LFC Subclass will frequently involve relocating from their home community, sometimes great distances, and that appropriate placements may not even be available. (D.E. 179 at 11).
11 RCCL is part of the Child Care Licensing division of DFPS.
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Plaintiffs also allege that this inadequate placement array violates the subclass’ right to family integrity, derived primarily from the First Amendment. (D.E. 179 at 20). However, they cite no legal authority in support of this claim. See (D.E. 160 at 40; D.E. 195 at 44). Moore v. City of East Cleveland, 431 U.S. 494, 498-99 (1977), extends constitutional recognition and protection to the family generally. Aristotle P. v. Johnson, 721 F.Supp. 1002 (N.D. Ill. 1989), seems especially relevant to this claim: plaintiffs were siblings in foster homes who alleged that the State’s policies separated them and made them unable to visit or communicate with each other. The Aristotle P. court held that the plaintiffs’ relationships with each other are “the sort of ‘intimate human relationships’ that are afforded ‘a substantial measure of sanctuary from unjustified interference by the State,’” id. at 1005-06 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984)), and that “[t]he plaintiffs’ relationships with their siblings are even more important because their relationships with their biological parents are often tenuous or nonexistent.” Id. at 1006. Accordingly, the court held that plaintiffs had stated a claim based on their First and Fourteenth Amendment rights.
There are some important differences between Aristotle P and the instant case, though. Notably, Aristotle P did not involve a class action. Also, the plaintiffs there did not dispute the State’s placement decisions, id. at 1006, challenging instead policies that did not facilitate sibling visitation, id. at 1007-08. Here Plaintiffs have not provided sufficient legal basis for the Court to conduct a rigorous analysis of this claim and determine to what extent it—and the potentially common questions of fact and law it entails—differs from Plaintiffs’ Fourteenth Amendment claim based on an unreasonable risk of harm and arising from Defendants’ same conduct. So, the Court restricts attention to the latter claim.
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A. Commonality Plaintiffs identify the State’s monitoring, licensing, and oversight of licensed foster care placements as the relevant policies or practices in their first Fourteenth Amendment claim. As with the General Class, staffing and operational decisions, such as allowing for follow-up inspections via phone or e-mail, Class Cert. Hr’g 1/23/13 (Chansuthus) at 287, are made by a central authority. State officials and agents make deliberate choices about how to approach these tasks and how to structure and staff the RCCL. The same is true for Plaintiffs’ second Fourteenth Amendment claim—the array of placements within the State is a function of State policy as to how operations are licensed and contracted for. Even if the distribution and array as they are now are not what the policy makers intended, it is a result of the way the State manages the system and is something that the State is clearly aware of and can control since the licensing and operation of facilities is heavily regulated. See (PX49; PX 50). Further, as explained above, failure to act can constitute a policy or practice that can be properly litigated as a class action. See Lightfoot v. District of Columbia, 273 F.R.D. 314, 321 (D.D.C. 2011); Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 543 (6th Cir. 2012). State actors are aware of the situations regarding RCCL and the placement array as a substantial portion of the evidence Plaintiffs have presented to the Court comes from State records. See, e.g., (PX 295 (2011 Annual Assessment by the Performance Management Unit of DFPS’s Child Care Licensing Division); PX 296 (2012 Annual Assessment by the Performance Management Unit); PX 148 (internal DFPS document expressing concern about geographic distribution of services and providers); PX 255 (DFPS document listing children placed outside their region)). State officials also gave depositions in which they acknowledged the problems with Texas’ oversight and array of placements. In short, both the oversight and array of foster care
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placements in the State—whether constitutionally adequate or inadequate—constitute policies or practices that can potentially form the basis of a class action.
As with the General Class, Plaintiffs must connect the policy or practice to the alleged harm, though they do not have to prove that class members were, in fact, harmed at the class certification stage. In order to conduct a rigorous analysis of the first LFC Subclass claim, the Court must consider whether there is evidence that Defendants do not engage in sufficient oversight of foster care placements and whether that policy or practice might impair class members’ right to reasonably safe living conditions. In other words, the Court must analyze the evidence to determine not just whether the State has some policy or practice of oversight (which it obviously does), but whether it has a policy or practice of inadequate oversight. The same analysis must then be done for the array of foster care placements in Texas. The Court considers each claim in turn.
RCCL’s responsibilities are extensive. The department is charged with regulating the provision of services by licensing, inspecting, and investigating residential child-care operations. (DX 3). The Child Care Licensing Department, of which RCCL is a part, has four general responsibilities. First it must regulate “all child-care operations and child-placing agencies to protect the health, safety, and well-being of children in care.” Second it must “[e]stablish and monitor operations and agencies for compliance with licensing standards, rules, and law.” Third it keeps parents and the public informed about child care and the histories of various facilities and their compliance with minimum standards of care. Fourth it provides technical assistance to providers to help them meet licensing standards, rules, and laws. (PX 434 at 8).
The licensing standards RCCL must enforce are voluminous and relate to nearly all aspects of the operation of a facility and the provision of care. See, e.g., (PX 49 (Minimum
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Standards for GROs, in excess of 300 pages); PX 50 (Minimum Standards for Child-Placing Agencies, the same)). Licensing and inspection are extensive processes, requiring a great deal of time in order to complete correctly and thoroughly. In Texas, the provision of care is done mostly by private CPAs that contract with the State, and RCCL is the State’s mechanism for ensuring that these providers meet minimum standards, keep children safe, and provide adequate care. This task is daunting. In 2011 there were 10,744 24-hour care facilities in Texas that RCCL was responsible for, and there were 11,577 inspections and 4,824 investigations, 2,065 involving cases of abuse or neglect. (PX 325); see also (PX 70; PX 244). Between September 2010 and August 2011 RCCL had to complete an average of 1098.3 inspections per month and process an average of 84.8 applications for licenses per month. (PX 226).
Despite these extensive and important responsibilities RCCL had only 124.4 full-time equivalent investigative caseworkers and 177 total staff in fiscal year 2011. (PX 325 at PLTF0062239). Recently the number of investigators was cut by a small amount due to budget constraints, though there was no corresponding reduction in RCCL’s duties. Class Cert. Hr’g 1/23/13 (Bateman) at 244-45. And, RCCL’s duties have only increased in the past few years. The number of placements the department is responsible for has generally increased, although in 2012 there was a decrease in both the foster care population and the number of licensed foster care facilities. (PX 21 at 7). Also, in 2011 RCCL changed its policies so that it inspects RTCs more frequently, resulting in another increase in its workload without a corresponding increase in personnel. (PX 206 at DFPS001283841 (increasing inspections of RTCs to once every six months rather than annually and requiring nighttime or weekend inspections of RTCs)).
The effect of these conditions is that RCCL staff, like caseworkers, carry high workloads. Caseloads in RCCL have been rising: from 7.9 in 2009 to 9.5 in 2012, a 20% increase in just
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three years. (PX 21 at 8). Similarly, Charlane Bateman, Director of Policy and Program Operations in the Child Care Licensing Division of DFPS, stated that RCCL staff carried high workloads. Class Cert. Hr’g 1/23/13 (Bateman) at 251. In her review of RCCL operations, Ms. Chansuthus concluded that RCCL lacked adequate staff “to perform their regulatory work, essentially to comply with their own policies to handle what seemed to me to be a heavy and complex workload to do quality work and to enforce provider compliance with minimum standards.” Id. (Chansuthus) at 282-83; see also (PX 21 at 9 (“it is my opinion that RCCL staffing does not adequately accommodate the scope of the critical regulatory work to be completed”)). She also found that in the two regions with the highest concentration of placements, Region 3 and Region 6, RCCL staff could not complete their tasks within a standard number of workdays in a month. Workers in Region 6 would need 26 days in a month, or six more than the number of workdays in a standard month, to complete their investigations and inspections while workers in Region 3 would need an impossible 34 days per month. Class Cert. Hr’g 1/23/13 (Chansuthus) at 281-82; (PX 21 at 8). These calculations assume an eight hour workday and that tasks are distributed equally amongst all investigating and inspecting staff. (PX 21 at 8).
As Bateman explained, a higher workload means a less effective staff generally. More cases either means fewer inspections, less probing inspections, or both. The ability of RCCL to enforce compliance decreases and problems at facilities persist longer. Class Cert. Hr’g 1/23/13 (Bateman) at 244-50. Chansuthus’ research corroborates that assessment and provides evidence that deficiencies of this sort presently exist. The Performance Management Unit (“PMU”) of DFPS ensures that the agency is performing according to policies and procedures. See Class Cert. Hr’g 1/23/13 (Chansuthus) at 283 (describing the PMU as analogous to a continuous
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quality assurance unit that monitors performance and makes recommendations). In its January 2011 Data and Trend Assessment (“2011 Assessment”) the PMU found that RCCL failed to perform follow-up inspections to check whether the placement was complying with standards in a timely fashion 35.7% of the time. PMU’s February 2012 Data and Trend Assessment (“2012 Assessment”) reported that follow-up inspections were not timely performed in 36.4% of the cases reviewed. (PX 21 at 9-10). Even when follow-up inspections have been conducted, they are sometimes done in a manner that is ineffective, such as via e-mail, fax, or telephone. The PMU has recommended that only certain placement deficiencies, such as those involving paperwork, be verified in this manner, but the 2011 Assessment reported that in 41.5% of the placements reviewed the “‘[t]ype of follow-up chosen was not the best method to reduce risk (e.g. not making an in-person inspection in the case of health and safety related issues).’” Id. at 10 (quoting the 2011 Assessment). There has been significant improvement in this area; the 2012 PMU report found that inappropriate follow-up was used in only 22% of the placements reviewed, though that is still a substantial failure rate. Id. at 10.
Inappropriate follow-up methods, delays in performing follow-ups, or failing to perform them at all are connected to workload. As Ms. Chansuthus—accepted as an expert in evaluating child welfare systems—noted, staff with heavy workloads will try to take what shortcuts they can to complete their work, which can include substituting the less time-consuming phone follow-up for an on-site investigation. Class Cert. Hr’g 1/23/13 (Chansuthus) at 287-88. Emails between DFPS staff support this observation: if RCCL workloads increase then “follow ups at RTCs may be seriously impacted. These are very time consuming …” (PX 21 at 11 n.75). Looking to the effects of RCCL’s efforts, its oversight does not seem effective at curtailing deficiencies in placements, leading to a pattern of repeat deficiencies. The 2011
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Assessment found that 65.6% of the placements surveyed had repeat deficiencies, a number that rose to 77.6% in the 2012 Assessment. Id. at 11-12. There is additional evidence of widespread non-compliance with minimum standards. The latest data before the Court states that there was an average of 2.3 deficiencies per inspection and only 6.2% of facilities had no deficiencies in the last two years. (PX 235 at 3). The foregoing all supports Chansuthus’ conclusion that “follow-up inspections conducted by RCCL were untimely and ineffective.” Class Cert. Hr’g 1/23/13 (Chansuthus) at 284.
Chansuthus’ expert report also describes three other areas where RCCL appears deficient. One of RCCL’s jobs is to ensure that the proper background checks are performed. Texas minimum standards require background checks for anyone who works, volunteers, or lives at a placement. E.g., (PX 21 at 12-13). In addition to ordinary monitoring, RCCL is supposed to evaluate a placement’s compliance with these rules as part of an investigation. Id. at 13. However, PMU reviews indicate that from March 2011 to September 2011, in cases designated “Priority 1,” meaning they involved allegations of physical or sexual abuse or the death of a child, the investigator’s documentation did not indicate that background checks were evaluated in an average of 52.8% of the cases. Id. at 13 n.92. The percentage of evaluations that were either not performed or not documented ranged from 24% in September 2011 to 67% of them that March. Id. Over the same period of time, a safety plan was documented for less than half of the Priority 1 cases where one was called for. Id. at 18 (the average between March 2011 and September 2011 was 42%).
RCCL also monitors the use of emergency behavior intervention (“EBI”), which includes personal restraints, seclusion, and emergency medication. (PX 183 at DFPS000968400). EBI is sometimes necessary to prevent a child in care from harming herself or others, and the standards
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concerning its use are detailed. Id. at DFPS000968401-405. There are concerns, however, that EBI is over- and inappropriately used. As one DFPS report put it:
Although minimum standards prohibit these practices, EBI is often used to control children’s behavior and/or as a result of inadequate treatment programs. Particularly in facilities serving the children with the most severe emotional and behavioral challenges, the current trend is to overuse EBI in lieu of more progressive interventions. Id. at DFPS000968406. Placements are required to report their EBI use quarterly, but many fail to do so or do so only inconsistently: between 2008 and 2010 an average of 32% of placements did not properly report their EBI use. (PX 21 at 16 n.109). Similarly, in a review of EBI evaluations that surveyed 79 RTCs, RCCL determined that “the vast majority of RTCs either are not conducting annual evaluations or are doing so only in partial compliance with minimum standards requirements.” (PX 208 at DFPS001380734); see also Class Cert. Hr’g 1/23/13 (Chansuthus) at 293-94. Finally, Chansuthus also cites a number of worrying statistics from a 2011 PMU review of RCCL abuse and neglect investigations in Region 3, where RCCL workers are particularly overworked. An assessment of the immediate safety of the children, a required part of any abuse or neglect investigation, was conducted 83% of the time. (PX 21 at 18). “‘[a]lthough this number could be considered high, a 17% rate of failure should be improved upon.’” Id. (quoting Residential Child Care Abuse/Neglect Investigations Region 3). Chansuthus cites the PMU’s comments, relating a number of anecdotes about foster children who had suffered, inter alia, repeated injuries from EBI or unexplained bruises and where there was no documentation indicating that an assessment relating to the child’s immediate safety was conducted. Id. at 1819. Along similar lines, the PMU found that risk was “thoroughly assessed” only 53% of the time, and a safety plan was actually implemented in only 64% of cases where one was called for.
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Id. at 20. Finally, 20% of the cases surveyed by the PMU were inappropriately closed by supervisors. Id. In these cases, the investigator’s determinations were insufficiently explained, not all parties were interviewed, risk was not thoroughly assessed, the determination was not consistent with policy definitions, or law enforcement personnel were not contacted when they should have been. Id. It bears reiterating that Region 3 contains among the most foster care placements and RCCL workers in that region appear to be especially taxed. So, these statistics and anecdotes represent something of a worst case scenario for Texas foster care. Combined with all the other evidence presented to the Court, there is sufficient reason to believe that there are substantial deficiencies in RCCL’s oversight of licensed foster care placements.
The connection between monitoring and oversight of placements and risks to class members or unsafe living conditions is a natural one—the point of RCCL’s oversight is to protect members of the Licensed Foster Care Subclass from harm and to ensure that they live in a safe environment. Plaintiffs have provided evidence that the State’s policies and practices lead to fewer and less thorough inspections and reduce RCCL’s ability to enforce compliance with minimum standards. An effect of these policies and practices is that more violations of State standards will go unnoticed and uncorrected and will be able to persist longer, subjecting foster children in these placements to an increased risk of harm. Of the placements with repeat standards violations identified in the PMU’s 2011 Assessment, 47% of the deficiencies were classified as High or Medium-High, and in the 2012 Assessment 65.5% of the deficiencies were so classified. (PX 295 at DFPS004490505; PX 296 at DFPS004490540). Deficiencies are classified according to the seriousness of the violation, and “higher weighted standard[s] have greater risk attached to them.” (PX 21 at 11 n.78 (quoting deposition of Charlane Bateman)). High level deficiencies include failure to supervise and failure to provide a safe environment,
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while medium-high deficiencies include not being aware of a child’s special needs or not taking into account surrounding circumstances, hazards, and risks in deciding how closely to supervise a child. See, e.g., (PX 50 at 12; PX 49 at 49). Background checks are likewise designed to protect children by screening out those that should not be caring for them, and the 2011 Assessment listed operations with repeated background check deficiencies as one of the four riskiest elements for CPAs. (PX 295 at DFPS004490497). The failure to implement safety plans when they are called for clearly threatens class members’ right to personal security and to a reasonably safe living environment. EBI, while sometimes necessary, is also inherently dangerous. “All forms of EBI present certain risks to the child in care … Even when properly applied, restraint can result in death.” (PX 183 at DFPS000968402); see also (PX 316 at HHSC000000855 (child died due to improperly initiated restraint); PX 317 at HHSC00001015 (child died due to improper restraint)). The 2012 Assessment found that 60% of all serious injuries at GROs and RTCs surveyed were related to behavioral intervention. (PX 296 at DFPS004490546).
Defendants counter that Chansuthus’ analysis is based only on documentation, meaning that her work cannot distinguish between something actually not happening and something happening and not being documented.12 (D.E. 198 at 39); Class Cert. Hr’g 1/23/13 (Chansuthus) at 299-300. So, it might be the case that the safety plan was, for instance, implemented; it was just not documented correctly. By her account, Chansuthus would need access to the original files or be able to speak to RCCL personnel to be able to make this distinction. Class Cert. Hr’g 1/23/13 (Chansuthus) at 299-300. The same observation may apply to PMU reports and assessments, which are based on surveys and “readings” of operations. This might be especially
12 Defendants also wrongly assert that the expert report produced by Ms. Chansuthus was not admitted into evidence. See Section VI., supra.
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plausible given how overworked RCCL staff appear to be: given limited time and resources, they might choose to eschew rigorous documentation in favor of actually working to safeguard class members’ safety and well-being. As Chansuthus explained, however: “effective child welfare and licensing practice demands that work completed be documented timely, because, as any experienced child welfare worker knows, ‘if you don’t document it, it didn’t happen.’” (PX 21 at 14); Class Cert. Hr’g 1/23/13 (Chansuthus) at 292 (“sort of a general axiom in child welfare practice is ‘if it’s not documented, then it’s not done.’ So, you can’t make assumtions when you are in a unit like PMU.”).
Although Defendants’ point is plausible, they provide no evidence to support it. There is no evidence before the Court, such as statements made by RCCL personnel, suggesting that the deficiencies outlined above are really the product of inadequate documentation and that the various reports do not reflect the actual conditions of children in foster care. Moreover, it would be reasonable to expect that if this were the case, the PMU would flag it. The PMU seems careful about describing the methodology it uses, including its weaknesses. In the Master Casereading Survey it undertook as part of the 2012 Assessment, the PMU explains that the 389 casereads it analyzed “cannot be regarded as representative of the entire State or region as a whole. The statistics we receive are clearly of those operations that have risk, not a random sample . . . Simply put, we are studying the elements of what separates high risk from mediumhigh risk.” (PX 296 at DFPS004490533). If there was a widespread, general reason to doubt the PMU’s findings (and PMU reports were a major source that Chansuthus relied on), it is odd that the agency never mentions it. At most, Defendants have presented another way to consider one of the central questions of fact in this case—is RCCL failing to exercise effective oversight over licensed foster care placements?—and illustrated how it is still a live issue, one that should be
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resolved at trial. Plaintiffs have shown how the policy or practice they identify is causallyrelated to the alleged harm, and all Defendants have offered against the weight of the evidence in the record is a possible reason to treat it with some skepticism.
The Court concludes that Plaintiffs have established commonality with regards to this claim. Common questions for this claim include the following. Do DFPS’s policies regarding RCCL workload and regulation cause a greater likelihood of deficiencies by placement providers? Do these increased deficiencies constitute an unconstitutionally unreasonable risk of harm? Are such policies deliberately indifferent to the safety of class members; is the choice or implementation of the policies not based on any professional judgment? Resolving these questions will be dispositive of Plaintiffs’ first Fourteenth Amendment claim on behalf of the LFC Subclass.
Plaintiffs’ second Fourteenth Amendment claim on behalf of this subclass is that DFPS maintains an insufficient array of placements. The array and distribution of placements constitutes a policy or practice of the State and flows from acts and policies of DFPS. Indeed, DFPS acknowledges that deficiencies in the array of placements are the result of the structure of the current foster care system and the way it procures services. (PX 150 at DFPS000630776). In DFPS’s plan for Foster Care Redesign it was noted that: “The geographic distribution of foster care services in Texas is inconsistent with the areas where services are needed. Children must move where services are offered rather than the services being offered where the children are located.” (PX 149 at DFPS000630358). The Adoption Review Committee arrived at a similar conclusion, reporting that children are too often moved outside of their home communities and this results in losing their educational continuity and important personal connections. (PX 323 at PLTF0019514).
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The location of placements throughout Texas means that class members must be moved outside of their home communities and away from their siblings and support networks. Id.; see also (PX 322 at 11, 19). A 2010 report to the Texas legislature DFPS made similar statements: “Finding appropriate placements for children who come into foster care remains difficult because the needs of the children do not always match the number, type, and location of the placement options available.” (PX 324 at PLTF0027560). Gail Gonzalez also testified in depositions that 50% of the RTC beds were in the Houston area rather than dispersed throughout the State, indicating that many children with the acute needs that require this sort of specialized care would have to be relocated there. Gonzalez also stated that there are not enough providers throughout the State to supply a variety of services, especially without moving the children far from their home communities. Class Cert. Hr’g 1/23/13 (Gonzalez) at 69-70, 76.
The shortcomings of Texas’ array of foster care placements tend to increase the number of placements children experience. As the Foster Care Redesign plan explains, even if children can be placed in their home communities, “there are few local service continuums that can meet the changing levels of need for children.” (PX 149 at DFPS000630358); see also (PX 148 at 2 (Foster Care Redesign powerpoint presentation)). So, as a child’s needs change, for instance, if the treatment at an RTC improves her condition, the placement must as well, which can involve yet another long-distance relocation. Gonzalez described the array of placements as the obstacle preventing DFPS from meeting its goal regarding number of placements. DFPS’s target was to keep 42% of the children who had been in its care for two or more years to only two placements, but only about half as many of those children (20.9%) had that few placements. Class Cert. Hr’g 1/23/13 (Gonzalez) at 72-73. As discussed previously, frequent placement moves can represent
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a violation of class members’ Fourteenth Amendment rights in and of themselves. See Section VII.B..
As of February 29, 2012 almost one quarter of the children in the PMC were placed outside their home region and well over half were placed outside their home county. (PX 255); see also (DX 46 at DFPS005158136). The numbers vary widely: only 15.8% of PMC children from Region 6, which includes Houston, were placed outside their home region, whereas 54.6% of children from Region 9 were. Id.; see also (PX 66 (mapping the distribution of placements for children from Lubbock County according to level of care and type of placement)).
An inadequate distribution and array can also cause separation of sibling groups. Among children in the PMC on March 31, 2011 only 53.6% of sibling groups were all placed together and 26% of sibling groups were entirely separated (i.e., no member of the sibling group was in a placement with a sibling). (PX 2 at APPX2078); see also (PX 191 at 1). There has been some improvement; in June, 2012 16.9% of sibling groups were entirely separated and 64.2% had all of the siblings placed together. (PX 311). The sibling relationship is important to children, and even more so for many in foster care. Since their needs were not being met by their parents, siblings often come to depend on each other. Separation of siblings in care adds to their emotional burdens and can cause “[t]rauma, anger and an extreme sense of loss.” And, “separating siblings may make it difficult for them to begin a healing process, form attachments, and develop a healthy self-image.” (DX 33 at 35-37); see also Aristotle P., 721 F.Supp. at 1006.
Some of the named plaintiffs demonstrate these general problems. A.M. and her sister were placed in a home with the goal of eventual adoption in 2006. But, A.M. required more specialized care and was moved to an RTC. Since there were no appropriate placements in the area, she was relocated a considerable distance. Her sister was then adopted, but A.M. is only
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able to see her rarely and has few contacts with her family. (PX 25 (filed under seal)). Z.H. had a similar experience when he was placed in a distant RTC. After this move he was no longer with or near his siblings or his mother. (PX 28 (filed under seal)). K.E. has been moved multiple times due to her placement needs and she has rarely been placed near her home. (PX 31 (filed under seal)). S.A. has resided in a series of placements in at least four of DFPS’s eleven regions. (D.E. 1 at 14). And, M.D. was placed in a foster home over 400 miles from her home community. Id. at 6.
Plaintiffs allege that the inadequate placement distribution and array leads to two options, both of which put class members at an unreasonable risk of harm. The child can be placed in an inappropriate setting given her needs, such as a GRO when she requires a foster home,13 or viceversa. Or, the child can be placed in an appropriate setting, but one far away from her home community and family members. Both of these options can cause harm to class members. Intuitively, placing a child in an inappropriate setting is detrimental to her, and can carry significant risks, Class Cert. Hr’g 1/22/13 (Miller) at 241, and can increase the number of placement moves a child experiences. Placing a child far from her home community not only leads to the problems described above, it also exacerbates the harms described in relation to the General Class because it makes it more difficult for caseworkers and others responsible for the child’s well-being to visit and monitor her. (PX 150 at DFPS000630780).
Defendants criticize the LFC Subclass claims as being based on the false premise that class members have a Fourteenth Amendment right to be free from, inter alia, inappropriate placements and frequent placement moves. (D.E. 163 at 62-63; D.E. 198 at 38 (re-urging previous arguments)). Class members do not have constitutional rights, per se, to these things. They do, however, have a right to be free form an unreasonable risk of harm. To the extent that
13 A variation of this concern is the gravamen of Plaintiffs’ claim on behalf of the Basic Care GRO Subclass.
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any of the policies and practices Plaintiffs identify in these claims impair that right, Plaintiffs have made out a claim that they should be enjoined. Plaintiffs have presented evidence that Defendants do not exercise effective oversight over foster care placements, which subjects class members to risks of harm, allegedly unreasonable ones. Plaintiffs have presented evidence that the State’s array of placements leads to frequent placement moves, as well as evidence suggesting that frequent and long-distance placement moves cause psychological harm to class members. So, while class members do not have a per se Fourteenth Amendment right not to be removed a certain distance from their home communities, Plaintiffs have made out a more complex claim. They claim that the State’s placement array, as it currently stands, threatens foster care children with an unreasonable risk of harm. Alternatively, this can be phrased as the State has not implemented reasonable safeguards to prevent class members from deterioriating. The validity of Plaintiffs’ claim—this one and all of them in this case—depends on the connection between the policy or practice in question and the risk of harm it imposes on the relevant class or subclass. Plaintiffs have produced sufficient evidence, at this point in the litigation, to establish that the State’s placement array may cause harm to members of the LFC Subclass. They had made out a claim. It remains to be seen whether this risk rise to the level of being unconstitutional and whether Defendants displayed either deliberate indifference or a lack of professional judgment in setting up the placement array.
As with Plaintiffs’ first claim on behalf of the Licensed Foster Care Subclass, the Court can identify common questions of law and fact that will resolve this claim. An important one will be whether DFPS policies and practices have, as Plaintiffs allege, caused Texas’ placement array to be deficient, and whether any possible deficiencies of the State’s array of placements
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rise to the level of unconstitutional risk of harm. These questions are common ones for the class and will decide the validity of the claim.
B. Typicality As these claims are based on the Defendants’ policies and practices that affect the LFC Subclass as a whole, the named plaintiffs satisfy typicality.14 The same policies affect the named plaintiffs, and in the same way, as they affect other subclass members. Further, it bears noting that children in the PMC frequently move from placement to placement. E.g., (DX 45 at 34; PX 276). So, even a member of the subclass who is presently in a safe, well-monitored placement near her home community might, with a significant probability, end up transferred to another placement. That transfer subjects her to the risks Plaintiffs allege: she may be forced to relocate far from her family, community, and social support system; she may be moved to an inappropriate placement; or she may find herself in an unsafe, inadequately monitored placement. All named representatives of the Licensed Foster Care Subclass depend on RCCL to conduct diligent oversight in order to ensure they are placed in safe homes and facilities. They all have claims typical of the class because no individual claims hinge on particular facts about their facility—instead they turn on the general oversight RCCL is able to provide. Similarly all named representatives, by virtue of being in the subclass, are affected by the placement array and as such have claims typical of the class as a whole. It may, of course, be true that individual named plaintiffs could have other, individual claims arising out of the oversight of their facility or their personal placements, but those are not the claims brought in this litigation.
14 D.I., due to changes in his status, is excluded from this analysis and will be considered in Section XI., infra.
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C. Rule 23(b)(2) Plaintiffs ask for two injunctions. First, they ask the Court to require an assessment by professionals in order to determine what needs to be done regarding monitoring and enforcement of minimum standards for licensed foster care placements and for those recommendations to be implemented. Second, they ask that the Court require similar assessment and implementation with regards to the array of such placements. (D.E. 179 at 31). These assessments, rather than providing tailored relief for individual members of the subclass, would be intended to determine what practical steps need to be taken on a department-wide level to vindicate the constitutional rights of members of the subclass. These requested injunctions bear some superficial resemblance to relief sought previously by Plaintiffs that did not satisfy Rule 23(b)(2). In their First Complaint Plaintiffs asked for expert assessments on class members’ individual cases and placement needs. (D.E. 1 at 82-83). This is tantamount to individually-tailored relief, which cannot be granted in a class action certified under Rule 23(b)(2). MD, 675 F.3d 832, 846-47 (5th Cir. 2012). The expert assessments contemplated here, however, are intended to consider only the needs of the class as a whole. If Plaintiffs prevail, then the Court could identify a minimal threshold for an array of placements necessary to safeguard subclass members’ Fourteenth Amendment rights.15 Similarly, the Court could identify specific RCCL practices, such as allowing for phone followup inspections or the way the agency treats repeated violations, and order DFPS to modify them. Such equitable relief would not involve the Court in adjudications of individual class members’ needs or circumstances. The possibility of such relief satisfies Rule 23(b)(2).
15 Such a mandated array could require the placement array to be more sensitive to the population distribution or population trends in Texas.
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IX. Foster Group Home Subclass Plaintiffs allege that placing PMC children in foster group homes violates their
Fourteenth Amendment rights because such homes lack professional staff, nighttime awake supervision, and medical personnel on staff or on call. (D.E. 195 at 25, 27). Plaintiffs claim that foster group homes are in fact group facilities, like GROs, because of the number of children placed in them. Texas’ decision to hold them to different, less stringent standards than other group facilities therefore subjects members of the subclass to an unreasonable risk of harm. In essence, Plaintiffs claim that foster group homes, due to their structure and the standards they are held to, do not provide sufficient oversight or monitoring in order to keep subclass members reasonably safe.
A. Commonality This claim is based on the institutional structure of foster group homes, so it is naturally a class one. Plaintiffs have identified a policy—the way foster group homes are structured—and allege that it exposes class members to an unreasonable risk of harm. This claim patently relates to a uniform policy: the existence, requirements and institutional features of foster group homes are explicit policies adopted by DFPS. See, e.g., (PX 50); (PX 390). Within the regulatory scheme they are little different than foster family homes. Texas defines them solely by reference to their size.16 Nearly all the licensing requirements are the same for these facilities and foster family homes. Screening is conducted in the same way, as is verification. (PX 50 at §§ 749.2445-749.2451, 749.2471). The physical environment is subject to the same regulations save, of course, that foster group homes will be required to have more
16 Foster family homes are verified, managed by a CPA, and have 6 or fewer children while foster group homes are verified, managed by a CPA, and have 7 to 12 children. (PX 50 at § 749.43(22-23)).
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space in order to accommodate more children. Id. at §§ 749.3021-749.3041. Neither facility requires trained professionals on staff or awake nighttime supervision. The differences beyond capacity are few and minimal.17 Foster group homes can house up to 12 children. The caregiver to child ratio can be 8:1, and if the home is the primary residence of at least one caregiver they are permitted to exceed this ratio during waking hours for short periods and during nighttime hours so long as there is a safety plan for nighttime supervision. Id. at §749.2567. These features create a greater risk of harm for children placed in these homes since they will generally receive less supervision.
Children in the foster care system abusing other children in the system is a major concern. As described above, many children coming into the PMC have suffered physical or sexual abuse and are traumatized. See e.g., (PX 322 at 11; DX 51 at DFPS005458044). These awful experiences make it more likely that the children will abuse or engage in inappropriate behaviors with other foster care children. (DX 51 at DFPS005458044); Class Cert. Hr’g 1/22/13 (Miller) at 245-46. For example, when named plaintiff D.I. was eight years old he was placed in a foster group home. Over the period of a month he was sexually abused at least three times by two teenage boys. The lone caregiver at the placement had no idea this was happening until one of the perpetrators approached him and informed him. (PX 26 at 1 RFP 2 RCCL 00930 (filed under seal)). There were only five boys in the home at the time, but the facility was—and continues to be—licensed at a capacity of 10 children. Id.; (PX 301 at 6). DFPS has recognized this risk. For example, on November 14, 2012 it proposed a number of recommendations intended to curb or better deal with “child to child inappropriate sexual acting out or physical
17 For example, foster group homes, in contrast to foster family homes, cannot provide regular day care. (PX 50 at § 749.2493). And, in contrast to some foster family homes, the required fire inspection at a foster group home may be conducted by the CPA only if it is unable to have a fire inspection done by a certified fire inspector or a local fire authority. Id. at §§ 749.2903-749.2905.
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aggression.” (DX 51 at DFPS005458044 (DFPS Memorandum for the Commissioner)). Plaintiffs have not been able to present aggregate statistics regarding child on child abuse because Texas does not collect these statistics. (D.E. 195 at 27 (citing Class Cert. Hr’g 1/22/13 (Miller) at 234-35)). Although it appears to be a problem serious and widespread enough for DFPS to take action and revise policy.
The way foster group homes are structured exacerbates these risks. These placements are authorized to house a relatively large number of children of varying ages and service levels. DFPS categorizes children according to their level of need, ranging from basic to moderate to specialized and finally to intense. (PX 312 at DFPS004766762-66). Based on the evidence before the Court, it does not appear that intense level children are placed in foster group homes. See (PX 199 at DFPS001141310 (e-mails from May 2009)). However, as of May 31, 2012 there are numerous foster group homes with children with both basic and specialized levels of needs. (PX 298). The difference between children at these service levels is considerable. A child at the basic service level is characterized by transient difficulties and occasional misbehavior; brief episodes of acting out in response to stress; and behavior that is minimally disturbing to others, is considered typical for the child’s age, and can be corrected. (PX 312 at DFPS004766762). A child at the specialized service level “has severe problems in one or more areas of functioning” and can have characteristics such as unpredictable anti-social acts; frequent or unpredictable physical aggression; major action of self-injury, including recent suicide attempts; and can present a significant risk to herself and to others. Id. at DFPS004766764. Similarly, foster group homes with an eight or ten year difference in the residents’ ages are common. (PX 298). Mixing children of different ages and service levels—especially when the differences are this stark—is risky. It increases the probability of one child abusing another, as illustrated by the case of D.I
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and expert testimony. See Class Cert. Hr’g 1/22/13 (Ricker) at 132; id. (Miller) at 241; Section X.A., infra.
By dint of having more children in the home, Plaintiffs allege that the caregivers are not able to provide the children with the supervision and attention they need, especially given their special needs. As Anna Ricker, the next friend for J.S., H.V., and P.O., put it: “it’s more difficult with more kids and these are difficult kids to start with.” Class Cert. Hr’g 1/22/13 (Ricker) at 131. In explaining DFPS’s policy of not placing children at the intense level in foster group homes, Ms. Gonzalez referred to this concern: “The theory behind this issue is related to the amount of supervision, attention and multiple demands that a child with intense level needs would place on the foster parents. In theory, the more children in a home the less supervision, attention and ability for the parents to meet the multiple needs of the child with these kind of needs.” (PX 199 at DFPS001141310). Further, the point is intuitive: the more children each caregiver is responsible for, the less time, attention, and supervision is allotted to each. Foster group homes, by allowing for a greater number of children without a corresponding increase in the number of caregivers, subject class members to less supervision and more risk than a foster family home. Congregate care facilities like GROs, of course, have an even greater number of children. But, these facilities contain a number of safeguards that foster group homes lack. In effect, Texas treats foster group homes as simply very large foster homes, and Plaintiffs argue that this practice creates an unconstitutionally unreasonable risk of harm.
Texas foster group homes are unusual sorts of facilities in foster care systems. COA does not have best practice standards for them, because “we don’t believe that there are best practices to go along with bad practice.” (PX 7 at 135 (affirmation of Richard Klarberg, President and CEO of COA)). CWLA does recommend the use of group homes that house between 4 and 12
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children as part of an array of residential services, but these are significantly different from the foster group homes used in Texas. (DX 57 at 35). These facilities have lower child to caregiver ratios generally, access to 24-hour professional services, nighttime awake supervision, and are designed for children who need more supervision than is available in a family home but do not need the intensive residential service that would be provided at a larger facility. Id. at 41-43. In the context of this case these would be something like a small GRO or RTC. Texas foster group homes are not used as an intermediate type of placement between institutional and family settings. Instead they are used as a way to place more children within a home without imposing any meaningfully different regulations on it.
In order to succeed on the merits, Plaintiffs will need to prove that foster group homes subject class members to an unreasonable risk of harm. It is not enough that foster group homes entail less supervision, increasing the risks that class members face. The risks that members of this subclass are subjected to due to the structure of foster group homes must rise to the level of being unconstitutionally unreasonable. Put another way, foster group homes may be the least safe kinds of placements in the Texas foster care system, but being more dangerous than both ordinary foster family homes and GROs does not, in and of itself, make Defendants’ policy of having foster group homes a violation of class members’ Fourteenth Amendment rights. This forms the basis of the common questions of law and fact that will be dispositive of this claim: do foster group homes subject class members to less supervision and therefore an increased risk of harm, and is this risk an unconstitutionally unreasonable one? As Plaintiffs have identified a common practice or policy that is the cause of the alleged harm and there exist common questions of law and fact that will be dispositive of this claim, the Foster Group Home Subclass claim has satisfied Rule 23(a)’s commonality requirement.
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B. Typicality Plaintiffs’ common claim is that the features of foster group homes subject members of this subclass to an unreasonable risk of harm. H.V., the sole named plaintiff for this class, was taken into custody by DFPS in 2006. Since then he has had eight different placements and has been moved between foster family homes, foster group homes, GROs, and placements with family. Since September 2011 he has resided in a foster group home. (PX 33 (filed under seal)). H.V. possesses a typical claim because he, like all members of the class, is in a placement that has the features Plaintiffs claim expose them to an unreasonable risk of harm. His foster group home, like all foster group homes, is subject to regulations almost identical to those imposed on foster family homes except that there is a larger capacity and a less stringent child to caregiver ratio. As such, his claim is typical of the subclass claim. Defendants object that H.V. cannot have a claim typical of class members because H.V.’s next friend, Ms. Ricker, has never objected to his placement in a foster group home in a pleading and cannot identify any specific harm H.V. has suffered in a foster group home. (D.E. 198 at 32). The Court fails to see how not objecting to the placement in a pleading shows that the claim is atypical—it is clear that Ms. Ricker believes that foster group homes expose residents to some risks. Class Cert. Hr’g 1/22/13 (Ricker) at 129; 132-33. Regardless of the specific foster group home H.V. is currently placed in, he is still exposed to the same alleged risks that other class members are; his claim arises from the same conduct and on the same legal theory.
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C. Rule 23(b)(2) The subclass also satisfies the requirements of Rule 23(b)(2). Plaintiffs claim that they are all injured in the same way because Defendants’ policies regarding foster group homes, rather than particular circumstances within an individual group home, subject them to an unreasonable risk of harm. They request a permanent injunction halting placement in foster group homes until they are operated in compliance with “accepted professional standards.” (D.E. 179 at 31). In essence, Plaintiffs seek to eliminate the distinction between foster group homes and GROs so that the same standards govern both types of foster care placements. E.g., Class Cert. Hr’g 1/22/13 (Lowry) at 46, 48; id. (Miller) at 244. The Court could also order more targeted injunctions that modify some of the critical characteristics of foster group homes. The Court could determine that these placements require nighttime awake supervision, medical staff on call, and so on. In either case, there are a number of possible injunctions in accordance with Rule 65(d) that the Court can imagine. Injunctive relief would be appropriate, if Plaintiffs prevail, because the claim and injury concern general policies of Defendants and the Court could issue an injunction that specifies policy changes required of Defendants as to these facilities.
X. Basic Care GRO Subclass Plaintiffs claim that the Fourteenth Amendment rights of the putative Basic Care GRO
Subclass are violated because Texas uses GROs to house children who only need basic child care services. (D.E. 195 at 20). Non-emergency, basic child care services are defined as services “that meet a child’s basic need for shelter, nutrition, clothing, nurture, socialization and interpersonal skills, care for personal health and hygiene, supervision, education, and service
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planning.” (D.E. 179 at 8 (citing 40 Tex. Admin. Code § 748.61)). GROs are more restrictive than other placements and Plaintiffs allege that they should not be used for non-emergency, nontherapeutic reasons. They argue that the policy of housing children who need only basic child care services in these facilities creates an unreasonable risk of harm because, by nature, these facilities are inappropriate and unsafe for these children. (D.E. 179 at 18).
A. Commonality Plaintiffs’ identification of a systematic deficiency in regards to the Basic Care GRO Subclass is fairly straightforward. They allege that Texas has a policy of placing children who need only basic child care services in large group living facilities and that this violates their constitutional rights. To show a common policy or practice to that effect, Plaintiffs have provided evidence that 385 PMC children whose level of service requirements were listed as basic were placed in GROs as of May 31, 2012. (PX 299 (filed under seal)); (D.E. 160 at 60); see also Class Cert. Hr’g 1/23/13 (Butler) at 138-39 (stating that children with basic care service levels are placed in GROs and there is no special approval required to make such placements). Since Plaintiffs’ claim is that Texas unconstitutionally allows this class to exist, the showing of numerosity also shows that there is a policy at work that is established by the consistent practice of making such placements. See (D.E. 202 at 6) (“With respect to the Basic Care GRO Subclass … the structural deficiency is that Defendants make these placements at all”). There is no question that Defendants have a practice or policy of placing children with only basic needs in GROs. For example, there is evidence in the record describing numerous children at the basic of moderate service level who have been “lingering in RTCs” for over three months. (PX 173 (listing eight children, one of whom was in an RTC for five and a half months); PX 174 (listing
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the total number of moderate level children in RTCs as of June 30, 2011 at 199 children); PX 175 (referring to 115 children at the basic or moderate level still in RTCs); PX 214). That is, these are not children whose conditions had recently improved and were simply waiting to find another placement; they had been in an RTC at this service level for an extended period of time. E.g., (PX 174 at DFPS000889283; PX 173 at DFPS000889234). According to communications between DFPS personnel, these placements are “not appropriate unless there were unique cases why children had to remain there. -Children [sic.] must be moved out also to make space for other children who really do need to be in RTC’s.” (PX 175); see also (PX 173 at DFPS000889233 (stating that it was “not ok” to have a service plan where a child at the moderate level was placed in an RTC till she graduates)).
Plaintiffs point to two kinds of risks created by this practice. First, like foster group homes, GROs often contain children of varying ages and service levels. Almost by definition, members of this subclass will be placed alongside those with relatively intense service needs as many GROs are licensed to provide a wide range of services in the same setting. (PX 302). A list of children in these facilities as of May 31, 2012 reveals that some had as much as a 17 year gap between the oldest and youngest children placed there, and children with levels of care ranging from basic to specialized resided in the same facilities. (PX 299 (filed under seal)). As noted above, children at different ages and with different level of care categorizations have very different needs. And, mixing children in this way increases the risk of child on child abuse. As Dr. Miller put it: “if you’re mixing ages and you’re mixing children with conduct disorders or behavioral issues and children who are basic care children. You create a pretty risky situation.” Class Cert. Hr’g (Miller) 1/22/13 at 241. Ms. Ricker described the risks inherent in GROs because they place numerous children with special needs in the same environment: “when you
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put a whole bunch of kids with problems together. If one of them craters, then it’s like a volcano. They all bubble over.” Id. (Ricker) at 122. Plaintiffs’ claim is that putting class members in that environment—when they, as the subclass is defined, have no therapeutic need to be there—subjects them to an unreasonable risk. Plaintiffs seem to be arguing that for children with more intense or specialized needs the risks of a GRO may be reasonable. The child will benefit from the treatment; there is some value to it that justifies the risks entailed. For children who only need basic care, however, this is not the case.
While it is true that GROs have safeguards that foster group homes lack, the risk still exists, though it remains a matter for trial to determine its magnitude. GROs represent an increased risk as they house considerably more children—the highest capacity authorized for a GRO as of May 31, 2012 is 437, (PX 302), whereas foster group homes are capped at 12—and the difference in ages present in the same placement is larger. Furthermore, the increased supervision in GROs is far from perfect. As part of its risk analysis in the 2012 Assessment, the PMU determined that nearly 60% of all allegations or serious incidents at a GRO or RTC reported had a lack of supervision trend. (PX 296 at DFPS04490546).
Second, Plaintiffs contend that because these facilities are designed to address serious therapeutic needs they pose a risk to class members’ psychological well-being as they effectively institutionalize these children for no good reason. (D.E. 195 at 23). Ms. Ricker testified that when he was about six years old J.S. was placed in a GRO where he lived in a cinderblock room with only a bed and some clothes. She related that “he said ‘would you please hug me because they can’t touch me here.’ And I was horrified.” Class Cert. Hr’g 1/22/13 (Ricker) at 110. Ms. Vasquez described the facility that L.H. and C.H. were placed in because DFPS could not find a family placement that would keep the sibling group together as devoid of personalization and “an
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institution, a facility that just houses them … just a box that these kids are thrown in …” Class Cert. Hr’g 1/23/13 (Vasquez) at 168. It is not a stretch to believe these conditions can inflict emotional or psychological harm on class members. As detailed above, class members’ Fourteenth Amendment rights include a right to be free from an unreasonable risk of psychological and emotional, as well as physical, harm. E.g., K.H. through Murphy v. Morgan, 914 F.2d 846, 848 (7th Cir. 1990); R.G. v. Koller, 415 F.Supp. 2d 1129, 1156 (D. Haw. 2006); Marisol A. by Forbes v. Giuliani, 929 F.Supp. 662, 675 (S.D.N.Y. 1996) aff’d sub nom. Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997); Aristotle P. v. Johnson, 721 F.Supp. 1002, 1010 (N.D. Ill. 1989). There is also some evidence that children who have been placed in GROs tend to experience more placements, and frequent placement moves can inflict psychological harm in violation of the class members’ Fourteenth Amendment rights. (PX 276);18 Section VII.B., supra. There seems to be a general agreement that these kinds of placements are disfavored, especially if they are long-term. Class Cert. Hr’g 1/23/13 (Butler) at 140 (stating that no caseworker would ever request a GRO over a foster family home or a foster group home); Class Cert. Hr’g 1/22/13 (Miller) at 242, 246; (DX 57 at 43-45 (CWLA standards recommending that a child’s stay in a residential treatment program institutional setting should not exceed the time it takes for a child to be able to move to a less restrictive environment)).
To sum up, Plaintiffs claim that placements of this sort are not only inappropriate, but create an unreasonable risk of harm to class members’ physical and psychological well-being. Of course, as with all of Plaintiffs’ claims they still bear the burden of proving its merits. They have satisfied their burdens at class certification, though, by identifying a unified policy or practice and connecting that policy to the alleged harm. Common questions of law and fact that
18 This data relates to children in GROs (but not RTCs) generally; it does not separate out children in GROs who only need basic care.
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will decide this claim include whether the risks Plaintiffs point to are sufficiently dire that they are unreasonable, constitutionally-speaking, and whether Defendants acted with the requisite deliberate indifference or failure to take professional standards into account.
B. Typicality Typicality in this subclass follows naturally from commonality. C.H. and L.H. are classified as needing only basic child care services and are placed in a GRO. This is the basis of the claims for all members of this subclass. Particularities regarding their circumstances do not undermine the typicality of their claims because those particularities are not relevant to the very general constitutional claims Plaintiffs have chosen to assert here. Defendants argue, however, that named plaintiffs C.H. and L.H. fail to satisfy typicality because their next friend, Ms. Vasquez, asked to have them placed there so that they could be with their siblings. (D.E. 198, at 26-27). Under the circumstances, she believed placement in the GRO was the best option for them. But, as subsequent testimony made clear, Ms. Vasquez was not happy with their placement in the GRO; she just thought it was the best option available given the circumstances. Class Cert. Hr’g (Vasquez) 1/23/13 at 166-68. Believing that the current placement is the best of a set of very bad options does not entail that their claims are atypical. Since the claim asserted on behalf of the class is not based on specific features of their placements but instead simply on the policy of making such placements at all, the claims asserted by C.H. and L.H. are the same as those of the subclass.19 The Court concludes that C.H. and L.H. have claims typical of the Basic Care GRO Subclass.
19 Defendants also argue that typicality fails because Plaintiffs have not presented evidence related to the psychological harm that these plaintiffs have suffered, but as pointed out above, this mistakes the nature of the injury Plaintiffs are claiming.
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C. Rule 23(b)(2) Plaintiffs claim that all subclass members are injured by being placed in these institutions and request that the Court issue an injunction halting placement of children only needing basic child care services in non-emergency GROs.20 (D.E. 179 at 31). The nature of this claim makes the Rule 23(b)(2) analysis straightforward: Plaintiffs object to a practice and if they prevail on the merits the Court could conceivably enjoin that practice. The Court could, for instance, determine that the Fourteenth Amendment requires that only PMC children with special therapeutic needs be placed in GROs. Since which facilities are GROs and which children are classified as only needing basic child care services are easily discernible by the definitions and categorizations DFPS currently uses, the Court could provide a clear injunction as to Defendants’ policies in regards to those facilities and those children. Defendants counter that Rule 23(b)(2) is not fulfilled because Plaintiffs have not shown classwide injury that violates the class members’ constitutional rights. (D.E. 198, at 51-52). That is a merits inquiry, though. The inquiry here is not whether Plaintiffs have earned an injunction that provides relief to the class as a whole. Defendants are right that they have not done so at this point. Here the Court only decides that this claim is of the sort that if Plaintiffs do prevail as a class, then appropriate equitable classwide relief can be fashioned.
XI. Unverified Kinship Subclass Plaintiffs allege that the Fourteenth Amendment rights of the members of the putative
Unverified Kinship Subclass are violated because they are placed in homes that have not gone through the verification process to ensure they meet the standards of other foster homes, their
20 An emergency placement is a short-term one utilized in exceptional circumstances, such as when a child must be unexpectedly removed from her current placement.
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providers do not receive necessary training, and their homes receive inadequate monetary assistance. (D.E. 179 at 19). They claim that these policies place members of the putative subclass at an unreasonable risk of harm.
A. Defendants’ Motion for Partial Summary Judgment Concurrent with their Post-Hearing Brief in Opposition to Class Certification, Defendants filed a Motion for Partial Summary Judgment as to the claims of D.I., S.R., M.R., and J.R. on the grounds that their individual claims are now moot.21 D.I. was adopted on October 24, 2012 and so is no longer in the PMC. As of February 7, 2013, S.R., J.R., and M.R. have had conservatorship transferred to relatives and are no longer in the PMC. Defendants assert that the R. children are the sole members of the Unverified Kinship Subclass and hence the claims of that subclass must be dismissed as moot as well. (D.E. 199). Plaintiffs oppose this motion, though they do not dispute the underlying facts. (D.E. 208). Concurrent with their response to Defendants’ motion Plaintiffs filed a Motion for Leave to File a Fourth Amended Complaint that adds two additional named plaintiffs, S.S. and A.R., as representatives of the putative Unverified Kinship Subclass. (D.E. 205). Plaintiffs have also filed a Motion for Leave to Reply in support of that motion and attached to that motion a corrected Fourth Amended Complaint. (D.E. 212). Since the Court finds that D.I., S.R., J.R., and M.R. cannot be adequate representatives because they are no longer members of the General Class or any subclass, Defendants’ Motion for Partial Summary Judgment is moot and does not need to be considered here.
21 D.I. has been offered as a representative of the General Class and the Licensed Foster Care Subclass. But since the issues regarding mootness are the same for D.I. and the R. children and the ramifications for this case concerning the motion relate mostly to the Unverified Kinship Subclass, D.I. is considered in this section.
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B. Certification of the Unverified Kinship Subclass Plaintiffs bear the burden of demonstrating that they satisfy all of the elements of Rule 23, including showing that the named plaintiffs for a class or subclass can be adequate representatives of that class or subclass. Wal-Mart v. Dukes, 131 S.Ct. 2541, 2551 (2011). They have failed to carry this burden as to the putative Unverified Kinship Subclass and hence the Court finds it unnecessary to consider at this time the remaining requirements of Rule 23 for that subclass. In their Third Amended Complaint Plaintiffs offered four named plaintiffs to represent the Unverified Kinship Subclass: S.R., J.R., M.R., and P.O. (D.E. 179 at 29). In order to be an adequate representative of a class a plaintiff must show that she is willing and able “to take an active interest in and control the litigation to protect the interests of absentees.” Stirman v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002). The R. children are no longer in the subclass because they are no longer in the PMC. As they are no longer in the subclass their personal interests are no longer aligned with those of other members of that subclass. They no longer suffer the same alleged injuries and they would not benefit from the sought after injunctive relief. Their next friend, as such, cannot adequately pursue this litigation on their behalf. At the end of August 2011 there were 2,994 PMC children in unverified kinship homes. (PX 2 at APPX 2077). There are likely a commensurate number today. The subclass would be better represented by named plaintiffs who are still members of the subclass and with next friends who can pursue the litigation on behalf of those children for their particular benefit. In any case, exiting the subclass is a major development for these named plaintiffs in relation to this case, and Plaintiffs have failed to affirmatively show that the R. children can be adequate representatives given this significant change. Without such a showing, the Court cannot certify a class naming
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them as representatives. Additionally, having exited the PMC the R. children cannot be adequate representatives of the General Class. For the same reasons D.I. cannot serve as an adequate representative of the General Class or the Licensed Foster Care Subclass.
The remaining question is whether or not P.O. can serve as an adequate representative of the Unverified Kinship Subclass. At a minimum, to show that a named plaintiff can be an adequate representative it must be demonstrated that that named plaintiff is or at least has been a member of that subclass at some point. Plaintiffs have claimed that P.O. is a member of this subclass, but the record makes his status uncertain. At the Class Certification Hearing his next friend could only say that he was in a kinship placement and was not sure whether it was verified or not. Class Cert. Hr’g, 1/22/13 (Ricker) at 123-25. The case file for P.O. Plaintiffs have submitted to the Court last documents his placement over a year ago and does not have him in a kinship placement at all. (PX 33 (filed under seal)). Given P.O.’s uncertain membership in the putative subclass, Plaintiffs have not established that P.O. can be an adequate representative.
Plaintiffs have failed to carry their burden to demonstrate adequacy of representation as to the Unverified Kinship Subclass, so at this time the Unverified Kinship Subclass cannot be certified.
C. Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint The Court next turns to Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint. The Federal Rules of Civil Procedure provide that a party may amend its pleading once as a matter of course. Fed R. Civ. P. 15(a)(1). Beyond that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
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15(a)(2). Defendants oppose Plaintiffs’ motion to file a Fourth Amended Complaint. (D.E. 205, 209).
Motions for leave to amend are entrusted to the sound discretion of the district court. Quintanilla v. Tex. TV, 139 F.3d 494, 499 (5th Cir. 1998) (citing Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993)). Rule 15(a) favors granting motions for leave to amend and though such motions should not be automatically granted, a “district court must possess a ‘substantial reason’ to deny a request for leave to amend.” Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282 (5th Cir. 2002)); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). Courts may consider a variety of factors when determining whether “substantial reason” exists for denying a motion for leave to amend, including undue delay, bad faith or dilatory motive, repeated failure to cure a deficiency, undue prejudice to the opposing party, and the futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010); Wimm, 3 F.3d at 139; Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981).
Plaintiffs have filed three amended complaints. In each successive amended complaint the claims and classes have remained constant. Plaintiffs’ changes have only been to add or alter named plaintiffs in order to ensure that there was adequate representation for the putative General Class and four subclasses. The same is the case with the Fourth Amended Complaint— Plaintiffs only seek to add two named plaintiffs to ensure that going forward there are adequate representatives for all of the putative classes.
This litigation has gone on for over two years and the claims of the named plaintiffs are time-limited because they will all be adopted, have custody otherwise transferred, change
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placements, or age out of the system. The Court has previously stated that it would permit Plaintiffs to re-plead multiple times and would let them “liberally amend.” Tr. of Tel. Conference, May 2, 2012 at 10, 14. The particular deficiency they seek to correct is new to develop. There has been no undue delay in correcting it, bad faith, or repeated failure to cure a deficiency by the Plaintiffs in this case. They filed their Motion for Leave to Amend concurrent with their response to Defendants’ Motion for Summary Judgment raising this deficiency.
Defendants argue that amendment is futile and hence leave to amend should be denied. (D.E. 209 at 2). Futility of amendment applies when there is a defect the court has found in the complaint that cannot be cured by the proposed amendment and so allowing it would be a waste of judicial resources. See, e.g., Cent. Laborers’ Pension Fund v. Integrated Elec. Servs., 497 F.3d 546 (5th Cir. 2007) (affirming a district court ruling denying leave to amend when it was sought after the case was dismissed and the proposed amendment did not remedy the deficiency); Rosenzweig v. Azurix Corp., 332 F.3d 854 (5th Cir. 2003) (affirming a ruling to deny leave to amend sought after dismissal partially on the grounds of futility when the new facts and claim plaintiffs wished to add did not remedy their failure to meet the pleading standard); Emory v. Tex. State Bd. of Med. Exam’rs, 748 F.2d 1023 (5th Cir. 1984) (affirming an order denying a motion for leave to amend to add additional defendants for futility when the same defect applied to the additional defendants). The Fifth Circuit has interpreted futility in this context “to mean that the amended complaint would fail to state a claim upon which relief could be granted.” Stripling v. Jordan Prod. Co., 234 F.3d 863, 273 (5th Cir. 2000). Here, Defendants extend this interpretation and argue that the motion for class certification should be denied as to the claims of the Unverified Kinship Subclass for the reasons they have been arguing regarding
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“commonality and cohesiveness” in their previous pleadings and that adding new named plaintiffs to represent that class does nothing to remedy those defects.
Defendants are correct that the amendment does nothing to change the terrain of the motion for class certification regarding commonality. But that is not the purpose of the amendment. If the Court finds that commonality has not been satisfied then the subclass will not be certified in the future. But if the Court were to find that those requirements have been met for this subclass then Defendants’ argument has no force here. This is not a case where the court has determined there is a defect, the plaintiff seeks to amend to remedy the defect, and the court determines the amendment is futile and so denies the motion for leave to amend. The relevant defect is the fact that the R. children have quite recently changed custody and can no longer adequately represent the subclass, and it is that defect the amendment squarely addresses. Related to that defect, the amendment is not futile.
Defendants also argue that the amendment should not be allowed because it contains “key allegations” as to D.I., S.R., M.R., and J.R. that are “simply and significantly false.” (D.E. 209 at 2-3). These allegations are statements, copied from earlier complaints, stating that each of the above is in the PMC of the State of Texas. This is no longer the case, as all admit. As Defendants point out, ordinarily the remedy for such a mistake would be for the plaintiff to withdraw and remove the errors or for the defendant to answer and deny the assertion. They claim, however, that this case is different because it will waste resources by necessitating a motion for summary judgment and will raise ethical issues. (D.E. 209 at 3 n.4). The Court fails to see either unpalatable consequence.
Further, it is unclear which well-established rationale for denying a motion for leave to amend this would qualify as—Defendants gesture towards bad faith but “are reluctant to, and do
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not yet assert” it. Id. at 3 n.5. Their sole support for this suggestion, Wimm, 3 F.3d at 137, is a case where leave to amend was denied when plaintiffs were aware of the basis for a particular claim and chose not to raise it until summary judgment was imminent on their preferred claim. Inferring bad faith from tactical decisions on which claims to make is quite different from the inference Defendants suggest the Court make—but are unwilling to make themselves—that a mistake in updating the complaint to reflect changed facts constitutes bad faith.
In any case, the claims Defendants complain of pertain only to named plaintiffs who have been found not to be adequate representatives for the subclass. Moreover, Plaintiffs, made aware of the mistakes by the Defendants, have now corrected the mistakes and propose to file a corrected Fourth Amended Complaint. The Court grants Plaintiffs’ Motion for Leave to File Reply in Support of Motion for Leave to File Fourth Amended Complaint and considers the corrected version attached to their reply, (D.E. 212, Ex. 3), as the proposed Fourth Amended Complaint.
A final reason to deny a motion for leave to amend is undue prejudice to the opposing party. “The touchstone of the inquiry under rule 15(a) is whether the proposed amendment would unfairly prejudice the defense by denying the defendants notice of the nature of the complaint.” Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997). Generally courts do not find undue prejudice when there is an adequate opportunity to address the amended complaint and complete discovery when needed. E.g. Williams v. Global Payments Check Servs., Inc., 2011 U.S. Dist. LEXIS 34568, at *3 (N.D. Tex. Mar. 30, 2011); MP Vista, Inc. v. Motiva Enters., 2010 WL 4366025, at *4 (E.D. La. Oct. 20, 2010). Contrarily, “[a] defendant is prejudiced if an added claim would require the defendant ‘to reopen discovery and prepare a defense for a claim different from the [one] … that was before the court.’” Smith v. EMC Corp.,
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393 F.3d 590, 596 (5th Cir. 2004) (quoting Duggins v. Steak ‘n Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999)); see also Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th Cir. 1992) (affirming denial of a motion for leave to amend when the amendment “would have established an entirely new factual basis for the plaintiffs’ claims and, consequently, would have required that the parties reopen discovery and alter their trial strategies.”).
Notably, Defendants do not argue that they are prejudiced by this amendment. It does not alter the claims and putative classes of the Plaintiffs and it does not change the substantive issues before the Court regarding class certification that have been extensively briefed. Indeed, Defendants have argued that the amendment is futile because the very same arguments about commonality apply. The Court has rejected this argument, but the general point is correct: the arguments in the case regarding the definition of the subclass, the claims asserted on its behalf, and most of the requirements of Rule 23 remain unchanged. The nature of the complaint has not changed, and in that sense Defendants are not prejudiced. This is true with regards to both the Fourth Amended Complaint and the corrected version Plaintiffs later submitted.
What does change is the identity of the named plaintiffs representing the putative Unverified Kinship Subclass. Rule 23 requires, in addition to showing class commonality that has been the focus of the pleadings in this case, that Plaintiffs show that the claims of the representatives for each putative class or subclass are typical and that the named plaintiffs will be adequate representatives of that class or subclass. Courts must go beyond the pleadings to determine compliance with these requirements and Defendants should be afforded an adequate opportunity to challenge Plaintiffs’ meeting of them. Here it would prejudice Defendants—and would be premature for the Court—if Plaintiffs were allowed to file a Fourth Amended
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Complaint with new named plaintiffs and immediately the Court were to rule on class certification, and in particular compliance with the requirements of Rule 23(a)(3)-(4).
Nonetheless, here through no fault of Plaintiffs the status of several named plaintiffs has recently changed while they were diligently pursuing a motion for class certification. It would hence best serve the interests of justice to allow Plaintiffs to file their corrected Fourth Amended Complaint in order to include S.S. and A.R. but also to give Defendants a chance to conduct discovery regarding those additional named plaintiffs and the Unverified Kinship Subclass.
Federal Rule of Civil Procedure 23(c)(1)(C) authorizes courts to alter and amend class certification orders before final judgment. The Supreme Court has described certification orders (both granting and denying) as “inherently tentative,” maintaining that “the judge remains free to modify it in light of subsequent developments in the litigation.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11 (1978). Other courts, including the Fifth Circuit, have made the stronger claim that district courts are obliged to reassess their class certification rulings throughout litigation. Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983); Barnes v. Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998) (citing Kuehner v. Heckler, 778 F.2d 152, 163 (3d Cir.1985)).
Therefore, Plaintiffs will be permitted to file their corrected Fourth Amended Complaint and Defendants will be permitted three months discovery as to S.S. and A.R. and the Unverified Kinship Subclass. Plaintiff may then move to amend the certification order to add the Unverified Kinship Subclass and both parties will have an opportunity to brief the Court regarding whether that putative subclass satisfies the requirements of Rule 23.
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XII.

Appointment of Class Counsel

Rule 23(g) requires that a court certifying a class must appoint class counsel. Rule

23(g)(1)(A) provides that the court must consider:

i. the work counsel has done in identifying or investigating potential claims in the action; ii. counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; iii. counsel’s knowledge of the applicable law; and iv. the resources that counsel will commit to representing the class.

Fed. R.. Civ. P. 23(g)(1)(A). Rule 23(g)(4) requires that “[c]lass counsel must fairly and

adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4)

The Court finds that counsel for the named plaintiffs fulfill these requirements. The

attorneys of Children’s Rights engaged in a two year investigation of the Texas foster care

system and a year of formal discovery in this case and have experience litigating similar cases in

other jurisdictions. All proposed class counsel have extensive experience handling complex

litigation and class actions. Counsel for named plaintiffs have demonstrated familiarity with the

applicable law and dedication to this case. They have shown they will devote substantial

resources to representing the class and pursuing this litigation. The Court concludes that counsel

for named plaintiffs will fairly and adequately represent the interests of the class and appoints

them as class counsel for the classes certified in this order.

XIII. Conclusion IT IS HEREBY ORDERED: 1. Plaintiffs’ Motion for Class Certification is GRANTED in relation to Count I as to the
General Class, the Licensed Foster Care Subclass, the Foster Group Home Subclass, and the

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Basic Care GRO Subclass. Plaintiffs’ Motion for Class Certification is DENIED in relation to Count I as to the Unverified Kinship Subclass and in relation to Count II. 2. This action shall proceed as a class action with one General Class and three Subclasses: the Licensed Foster Care Subclass, the Foster Group Home Subclass, and the Basic Care GRO Subclass. 3. Membership of the certified General Class and each of the three certified subclasses is defined as follows: a. General Class: all children now, or in the future, in the Permanent Managing
Conservatorship of the State of Texas; b. Licensed Foster Care Subclass: all members of the General Class who are now or will be
in a licensed or verified foster care placement, excluding verified kinship placements; c. Foster Group Home Subclass: all members of the General Class who are now or will be
in a foster group home; d. Basic Care GRO Subclass: all members of the General Class who are now or will be in a
GRO and who are or will be receiving solely non-emergency, basic child care services. 4. The following named plaintiffs, by their next friends, are appointed as class representatives
for the General Class: a. M.D., by her next friend, Sarah R. Stukenberg; b. Z.H., by his next friend, Carla B. Morrison; c. S.A., by her next friend, Javier E. Solis; d. A.M., by her next friend, Jennifer Talley; e. J.S., by his next friend, Anna J. Ricker; f. H.V., by his next friend, Anna J. Ricker;
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g. P.O., by his next friend, Anna J. Ricker; h. K.E., by her next friend, John W. Cliff, Jr.; i. L.H., by her next friend Estela C. Vasquez; and j. C.H., by her next friend, Estela C. Vasquez. 5. The following named plaintiffs, by their next friends, are appointed as class representatives for the Licensed Foster Care Subclass: a. M.D., by her next friend, Sarah R. Stukenberg; b. Z.H., by his next friend, Carla B. Morrison; c. S.A., by her next friend, Javier E. Solis; d. A.M., by her next friend, Jennifer Talley; e. J.S., by his next friend, Anna J. Ricker; f. H.V., by his next friend, Anna J. Ricker; g. K.E., by her next friend, John W. Cliff, Jr.; h. L.H., by her next friend Estela C. Vasquez; and i. C.H., by her next friend, Estela C. Vasquez. 6. The following named plaintiff by his next friend, is appointed as class representative for the Foster Group Home Subclass: a. H.V., by his next friend, Anna J. Ricker. 7. The following named plaintiffs, by their next friends, are appointed as class representatives for the Basic Care GRO Subclass: a. L.H., by her next friend Estela C. Vasquez; and b. C.H., by her next friend, Estela C. Vasquez.
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8. The following attorneys are appointed as co-counsel for the certified General Class and each of the three certified subclasses: a. attorneys from the firm Haynes and Boone, LLP; b. attorneys from the firm Yetter Coleman LLP; and c. attorneys from Children’s Rights, a non-profit organization with its office in New York.
9. Defendants’ Motion for Partial Summary Judgment as to D.I., S.R., M.R., and J.R. is DENIED as moot.
10. Plaintiffs’ Motion for Leave to File Reply in Support of Motion for Leave to File Fourth Amended Complaint is GRANTED. The Court considers the corrected Fourth Amended Complaint attached to that motion as the proposed Fourth Amended Complaint.
11. Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint is GRANTED. Defendants are permitted three months to conduct discovery relating to the Unverified Kinship Subclass and the named plaintiffs S.S. and A.R.
SIGNED and ORDERED this 27th day of August, 2013. ___________________________________ Janis Graham Jack Senior United States District Judge
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 CCaassee22:1:111-c-cvv-0-000008844 DDooccuummeennt t221125-3 FFileileddininTTXXSSDDoonn0085/2/274/1/133 PPaaggee11oof f3366

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend, Sarah R. Stukenberg, )

D.I., by his next friend, Nancy G. Pofahl,

)

Z.H., by his next friend, Carla B. Morrison,

)

S.A., by her next friend, Javier E. Solis,

)

A.M., by her next friend, Jennifer Talley,

)

J.S., H.V., and P.O., by their next friend, Anna )

J. Ricker,

)

K.E., by her next friend, John W. Cliff, Jr.,

)

S.R., M.R., and J.R., by their next friend,

)

Bobbie M. Young, and

)

L.H., C. H., and S.S., by their next friend Estela )

C. Vasquez, and

)

A.R., by her next friend Tom McKenzie,

)

individually and on behalf of all others similarly )

situated,

)

Plaintiffs,

) )

CASE NO. 2:11-cv-00084

)

v.

)

)

RICK PERRY, in his official capacity as

)

Governor of the State of Texas,

)

KYLE JANEK, in his official capacity as

)

Executive Commissioner of the Health )

and Human Services Commission of the )

State of Texas, and

)

JOHN J. SPECIA, JR., in his official capacity )

as Commissioner of the Department of )

Family and Protective Services of the

)

State of Texas,

)

)

Defendants.

PLAINTIFFS’ CORRECTED FOURTH AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION

CCaassee22:1:111-c-cvv-0-000008844 DDooccuummeennt t221125-3 FFileileddininTTXXSSDDoonn0085/2/274/1/133 PPaaggee22oof f3366
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 JURISDICTION AND VENUE ......................................................................................................3 PARTIES .........................................................................................................................................3
A. Named Plaintiffs ......................................................................................................3 B. Defendants ...............................................................................................................6 CLASS DEFINITIONS ...................................................................................................................7 COUNT I: SUBSTANTIVE DUE PROCESS UNDER THE U.S. CONSTITUTION ..................9 A. Structural Deficiencies That Harm All Putative Members of the
General Class ...........................................................................................................9 B. Structural Deficiencies that Harm All Putative Members of the
Licensed Foster Care Subclass...............................................................................11 C. Structural Deficiencies That Harm All Putative Members of the
Foster Group Home Subclass.................................................................................17 D. Structural Deficiencies That Harm All Putative Members of the
Basic Care GRO Subclass......................................................................................18 E. Structural Deficiencies That Harm All Putative Members of the
Unverified Kinship Subclass..................................................................................19 COUNT II: FIRST, NINTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION ..........................................................................................................................20 CLASS ACTION ALLEGATIONS ..............................................................................................22 PRAYER FOR RELIEF ................................................................................................................31
i

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INTRODUCTION 1. The entire foster care system in Texas is administered by the Department of Family and Protective Services (“DFPS”). Within DFPS, the Child Protective Services Division (“CPS”) is required to investigate reports of child abuse and neglect. When CPS determines that a child has been maltreated and that he is not safe in his own home, CPS removes the child and petitions the appropriate court for Temporary Managing Conservatorship (“TMC”) of the child. If the court grants TMC, DFPS is required to provide a temporary placement and to try to reunify the child with his family, if it is safe and appropriate to do so, or to try to place the child with a new, permanent family. DFPS may retain TMC of a child for up to one year (or 18 months with court approval). After that time, if the child has not been reunited with his birth family or provided with some other permanent family, the child is formally placed into the Permanent Managing Conservatorship (“PMC”) of the State. The children who are now or will be in the PMC of the State are the sole focus of this lawsuit. 2. Already vulnerable from having suffered the abuse or neglect that brought them into the foster care system in the first place, children in the PMC of the State are at risk of further maltreatment while in the State’s care because of structural deficiencies in the Texas foster care system. For example, children whose caseworkers carry excessive caseloads suffer longer stays in State custody, placements that are not suited to their needs, frequent moves from one placement to another, and maltreatment and a higher risk of maltreatment in care. 3. Once children enter the State’s PMC, the likelihood that they exit from State custody and into a permanent home drops off markedly. The average length of stay for children who were in the State’s PMC at the end of August 2011 was more than three years. These children languish in State care even though, as of July 2011, more than half of the children in the State’s PMC
1

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were legally free for adoption. Each year, far too many children leave the State’s PMC only when they turn 18 and “age out.” In state Fiscal Year 2011, 1202 children in the State’s PMC aged out, or 17.5 percent of all children who exited the State’s PMC in 2011. 4. Further, while the State retains legal responsibility for each child in its conservatorship, Texas relies heavily on private child placing agencies who contract with the State to provide foster care for these children. As of March 31, 2011, 82 percent of the children in the State’s PMC who were in foster family homes, and 98 percent of the children in the State’s PMC who were in foster group homes, were in homes administered by private child placing agencies. 5. Approximately one-third of children in the custody of Texas and one-quarter of all children in PMC were placed in unverified1 and unreimbursed “kinship” care with relatives as of August 31, 2011. The State’s failure to require verification of all kinship placements, and its failure to provide foster care payments for children in unverified kinship homes, deprives all children who are or will be in such placements of the safety and well-being to which they are entitled. 6. Texas policies and practices result in structural deficiencies that put all children who are or will be in the State’s PMC at an unacceptable risk of harm, including abuse and neglect, while in care. Among other deficiencies, Texas employs an insufficient number of caseworkers; has an insufficient number, geographic distribution, and array of placement options; and fails to monitor and enforce compliance with the licensing standards for its foster care placements. Additionally, Texas places a significant percentage of the children in its PMC in unlicensed kinship placements and inappropriate group care settings that do not meet accepted professional
1 In Texas, “verification” is the term used for the formal approval of foster parents by child placing agencies, including CPS. In other states and in the applicable professional standards, this process is commonly known as “licensing.”
2

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standards. Collectively, these structural deficiencies lead to grim consequences: children in the State’s PMC suffer maltreatment at an unacceptable rate, are subjected to frequent and repeated moves among placements, and too often are separated from their siblings and home communities.
JURISDICTION AND VENUE 7. Because this action is brought pursuant to 42 U.S.C. § 1983, this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 8. Venue is proper in this judicial district, pursuant to 28 U.S.C. § 1391(b), because a substantial portion of the events or omissions giving rise to the claims occurred in this district, in that:
a. Named Plaintiff M.D. is a legal resident of this Division and entered Department of Family and Protective Services custody in this Division;
b. Named Plaintiffs D.I., S.R., M.R., J.R., L.H., C.H., and S.S. are legal residents of this District and, along with Named Plaintiff S.A., entered DFPS custody in this District;
c. Named Plaintiffs M.D., D.I., S.A., J.S., K.E., S.R., M.R., J.R., L.H., and C.H. have been, at times, placed in this District; and
d. Named Plaintiffs S.A., L.H., C.H., and S.S. are currently placed in this District. PARTIES
A. Named Plaintiffs 9. M.D. is a sixteen-year-old girl from Corpus Christi, in Nueces County, who is in the Permanent Managing Conservatorship of the State of Texas. She is currently in a residential treatment center (“RTC”) in New Ulm, in Austin County, about four hours from her hometown. M.D. appears by her next friend, Sarah R. Stukenberg. Ms. Stukenberg is suited to represent M.D.’s best interests in this case. 10. D.I. is an eleven-year-old boy from Houston, in Harris County. At the time that Plaintiffs
3

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filed their Motion for Class Certification (Dkt. No. 160), D.I. was in the Permanent Managing Conservatorship of the State of Texas and resided in a family foster home. D.I. appears by his next friend, Nancy Pofahl. Ms. Pofahl is suited to represent his best interests in this case. 11. Z.H. is a twelve-year-old boy from San Antonio, in Bexar County, who is in the Permanent Managing Conservatorship of the State of Texas. He currently resides in an RTC in Nacogdoches, about 300 miles from his home community of San Antonio. Z.H. appears by his next friend, Carla B. Morrison. Ms. Morrison is suited to represent his best interests in this case. 12. S.A. is a sixteen-year-old girl who came into DFPS custody in Brownsville, in Cameron County. S.A. currently resides in an RTC in Harris County, six hours from Brownsville. S.A. is in the Permanent Managing Conservatorship of the State of Texas. S.A. appears by her next friend, Javier E. Solis. Mr. Solis is suited to represent her best interests in this case. 13. A.M. is a fifteen-year-old girl from Canton, in Van Zandt County, who is in the Permanent Managing Conservatorship of the State of Texas. A.M. currently resides in an RTC in McClennan County, almost three hours from her home community in Canton. A.M. appears by her next friend, Jennifer Talley. Ms. Talley is suited to represent her best interests in this case. 14. J.S. is a ten-year-old boy from Morton, in Cochran County, who is in the Permanent Managing Conservatorship of the State of Texas. He currently resides in an RTC in Goldthwaite, approximately 325 miles from Morton. J.S. appears by his next friend, Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 15. H.V. is a thirteen-year-old boy from Levelland, in Hockley County, who is in the Permanent Managing Conservatorship of the State of Texas. H.V. is in a foster group home in Lubbock. H.V. appears by his next friend Anna J. Ricker. Ms. Ricker is suited to represent his
4

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best interests in this case. 16. P.O. is a nine-year-old boy from Levelland, in Hockley County, who is in the Permanent Managing Conservatorship of the State of Texas. P.O. is in a kinship placement with his grandparents. P.O. appears by his next friend Anna J. Ricker. Ms. Ricker is suited to represent his best interests in this case. 17. K.E. is a seventeen-year-old girl from Odessa, in Ector County, who is in the Permanent Managing Conservatorship of the State of Texas. K.E. is currently residing in an RTC in San Antonio, in Bexar County, more than five hours from Odessa. K.E. appears by her next friend John W. Cliff, Jr. Mr. Cliff is suited to represent her best interests in this case. 18. S.R. is a seven-year-old girl from Houston, in Harris County. At the time of the hearing on Plaintiffs’ Motion for Class Certification, S.R. was in the Permanent Managing Conservatorship of the State of Texas and was living with her aunt in an unverified kinship placement in Houston. S.R. appears by her next friend, Bonnie M. Young. Ms Young is suited to represent her best interests in this case. 19. M.R. is a six-year-old boy from Houston, in Harris County. At the time of the hearing on Plaintiffs’ Motion for Class Certification, M.R. was in the Permanent Managing Conservatorship of the State of Texas and was living with his aunt in an unverified kinship placement in Houston. M.R. appears by his next friend, Bobbie M. Young. Ms Young is suited to represent his best interests in this case. 20. J.R. is a three-year-old girl from Houston, in Harris County. At the time of the hearing on Plaintiffs’ Motion for Class Certification, J.R. was in the Permanent Managing Conservatorship of the State of Texas and was living with her aunt in an unverified kinship placement in Houston. J.R. appears by her next friend, Bonnie M. Young. Ms. Young is suited
5

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to represent her best interests in this case. 21. L.H. is a fourteen-year-old girl from Cameron County, who is in the Permanent Managing Conservatorship of Texas. She is currently living in a basic care general residential operation (“GRO”) in San Benito, in Cameron County. L.H. appears by her next friend, Estela C. Vasquez. Ms. Vasquez is suited to represent her best interests in this case. 22. C.H. is a ten-year-old girl from Cameron County, who is in the Permanent Managing Conservatorship of Texas. She is currently living in a basic care general residential operation in San Benito, in Cameron County. L.H. appears by her next friend, Estela C. Vasquez. Ms. Vasquez is suited to represent her best interests in this case. 23. S.S. is a 15-year-old girl from Cameron County, who is in the Permanent Managing Conservatorship of Texas. She is currently living with a relative in an unverified kinship placement in Cameron County. S.S. appears by her next friend, Estela C. Vasquez. Ms. Vasquez is suited to represent her best interests in this case. 24. A.R. is an eighteen-month-old girl from Tarrant County, who is in the Permanent Managing Conservatorship of Texas. She is currently living with her uncle in an unverified kinship placement in Tarrant County. A.R. appears by her next friend, Tom McKenzie. Mr. McKenzie is suited to represent her best interests in this case. B. Defendants 25. Defendant RICK PERRY is the Governor of Texas, and is sued in his official capacity. He is responsible for ensuring that all Texas agencies comply with applicable federal and state law, and he oversees and directs the activities of the Texas Health and Human Services Commission and the Department of Family and Protective Services, pursuant to the Texas Constitution Article IV Sections 1 and 10, and to the Texas Government Code Title 4, Chapter 531. His business address is Office of the Governor, State Insurance Building, 1100 San Jacinto
6

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Boulevard, Austin, Texas 78701. 26. Defendant KYLE JANEK is the Executive Commissioner of the Texas Health and Human Services Commission, and is sued in his official capacity. Pursuant to Texas Government Code Section 531.0055 et seq., the Executive Commissioner has broad policy and rule-making authority for the commission and its constituent agencies, including DFPS. Executive Commissioner Janek reports to the Governor, Rick Perry, and serves at his pleasure. Defendant Janek’s business address is Texas Health and Human Services Commission, BrownHeatly Building, 4900 North Lamar Boulevard, 7th Floor, Austin, Texas 78751. 27. Defendant JOHN J. SPECIA, JR. is the Commissioner of DFPS, and is sued in his official capacity. Pursuant to the Texas Government Code Title 4, Chapter 531, he is responsible for administering properly and efficiently all DFPS child welfare services and programs; providing for the care of the children served by the department; directing the placement of children in appropriate state programs and/or facilities; and assuring that all contracted and other programs and facilities providing child welfare services operate in conformity with constitutional, statutory, and regulatory requirements. Pursuant to Texas Government Code Section 531.0056(a), the Commissioner is appointed by the Executive Commissioner of the Texas Health and Human Services Commission, with the approval of the Governor, and serves at the pleasure of the Executive Commissioner. His business address is Texas Department of Family and Protective Services, 701 West 51st Street, Austin, Texas 78751.
CLASS DEFINITIONS 28. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution on behalf of:
a. a class comprised of all children who are now or will be in the Permanent Managing
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Conservatorship of the State of Texas’s Department of Family and Protective Services (“General Class”); b. a subclass comprised of all members of the General Class who are now or will be in a licensed or verified foster care placement, except those children now, or in the future, placed in a verified kinship placement, see CPS Handbook §§ 4512-4513 (“Licensed Foster Care Subclass”); c. a subclass comprised of all members of the General Class who are now or will be in a foster group home, defined by state law as a facility that is the primary residence of the caregiver(s) and provides 24-hour residential care for seven to 12 children, Tex. Hum. Res. Code § 42.002(5) (“Foster Group Home Subclass”); d. a subclass comprised of all members of the General Class who are now or will be in a general residential operation, defined by state law as a residential child care operation that provides child care for 13 or more children or young adults, Tex. Hum. Res. Code § 42.002(4), 40 Tex. Admin. Code § 748.43(23), and who are or will be receiving solely non-emergency, basic child care services, which the state defines as “[s]ervices that meet a child’s basic need for shelter, nutrition, clothing, nurture, socialization and interpersonal skills, care for personal health and hygiene, supervision, education, and service planning,” 40 Tex. Admin. Code § 748.61 (“Basic Care GRO Subclass”); and e. a subclass comprised of all members of the General Class who are or will be in an unverified kinship placement, defined by state policy as a placement with a relative or other person who has a longstanding and significant relationship with the child, but is not verified, licensed, or certified as a foster parent, see CPS Handbook §§ 4512-4513
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(“Unverified Kinship Subclass”). COUNT I: SUBSTANTIVE DUE PROCESS UNDER THE U.S. CONSTITUTION (Asserted by the Named Plaintiffs on behalf of all Plaintiff Children in the General Class
and in every Subclass) 29. State officials assume affirmative duties under the Fourteenth Amendment to the United States Constitution to protect from harm all children taken into foster care custody, and to provide them appropriate care, treatment, and services through the exercise of accepted professional judgment. 30. Defendants, in their official capacities, have failed and continue to fail to discharge their affirmative duties because their actions and inactions constitute state policies or practices that substantially depart from accepted professional judgment, practice, and standards as to demonstrate that Defendants did not base their conduct on such a judgment and/or shock the conscience by constituting deliberate indifference to the constitutionally protected rights and liberty and privacy interests of children who are now or will be in the State’s PMC. More specifically, Plaintiffs complain of the following actions and inactions of Defendants that have produced structural deficiencies in the State’s foster care system that harm children who are now or will be in the PMC of the State. A. Structural Deficiencies That Harm All Putative Members of the General Class 31. Texas employs an insufficient number of caseworkers. Caseworkers are responsible for many of the critical tasks upon which the Plaintiff Children depend: placing children in the least restrictive placements that are safe and meet their needs; regularly visiting children in those placements; ensuring the development and implementation of case plans needed by Plaintiff Children; ensuring children receive needed services; and developing and implementing a permanency plan for each child to ensure that they leave State custody for permanent families
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whenever possible. 32. Professional standards, as promulgated by the Child Welfare League of America, recommend that caseworkers have caseloads that range from 12 to 15 children in order to fulfill their responsibilities. Standards of Excellence for Family Foster Care Services § 3.48. Texas state law recognizes that the caseloads of its DFPS caseworkers should be consistent with “professional caseload standards,” Tex. Gov’t Code § 531.048(b)(3), which are defined to include caseload standards established by the Child Welfare League of America, Tex. Gov’t Code § 531.001(5). Texas employs too few caseworkers to provide General Class members with caseworkers whose caseloads meet professional standards. The average caseload for DFPS substitute care caseworkers for state Fiscal Year 2011 was 32.0 cases and has been rising for several years. Indeed, as of August 31, 2011, 55 percent of the caseworkers serving children in the State’s PMC had caseloads that exceeded 30 cases, which is substantially above professional standards; and 322 workers, or 24 percent of the caseworkers serving those children, had caseloads of more than 40 cases. 33. As Defendants have admitted, workers are less able to fulfill their responsibilities and ensure the safety of the children in their care, as required by Texas state policy and professional standards, when they carry excessive caseloads. For example, children whose workers carry excessive caseloads are harmed by and put at risk of harm by placement decisions made without adequate information. Excessive caseloads cause children in the State’s PMC to experience longer stays in State custody without the opportunity for a permanent family; placements not suited to their needs; frequent and repeated moves from one placement to another; and maltreatment and higher risk of maltreatment in care. High caseloads also contribute to high employee turnover rates, exacerbating systemic instability.
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34. By the actions and inactions of Defendants listed above in ¶¶ 1-6 and 27-31, all Plaintiff Children in the General Class have been harmed and are at continuing risk of harm, including abuse and neglect. 35. Defendants’ actions and inactions listed above in ¶¶ 1-6 and 27-31 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the General Class. 36. By the actions and inactions of Defendants listed above in ¶¶ 1-6 and 27-31, all Plaintiff Children in the General Class have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. B. Structural Deficiencies that Harm All Putative Members of the Licensed Foster
Care Subclass 37. Texas maintains an insufficient number, geographic distribution, and array of placements. Texas state policy expressly provides that it is preferable that all children be placed in the least restrictive placement appropriate to the needs of a child and that a child be placed in the child’s home community with the child’s sibling group intact. However, for a long period of time, and with knowledge of widespread structural deficiencies, Defendants have failed to maintain a sufficient number, geographic distribution, and array of foster care placements to meet the reasonably anticipated needs of Plaintiff Children in the Licensed Foster Care Subclass. In a September 2010 report to the legislature, DFPS acknowledged that “[f]inding appropriate placements for children who come into foster care remains difficult because the needs of the children do not always match the number, type, and location of the placement options available.”
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More recently, DFPS, in explaining why its foster care system needed to be redesigned, pointed to some of the structural deficiencies in its placement array, including an “[i]mbalance in geographic distribution of services and providers” and an “[i]nsufficient number of residential providers that offer a full continuum of services,” resulting in the placement of children outside of their home communities, an increased number of changes in placement, separation from siblings and family, lack of educational continuity, and a fractured support system. 38. Texas’s insufficient placement array leads to the following inappropriate placements:
a. The State inappropriately places children in non-therapeutic, non-emergency group care. Due to the insufficient number and array of foster family homes, the State places children in group care placements when they should be placed in the least restrictive, most family-like settings where their needs can be met. As of March 31, 2011, approximately 13 percent of children in the State’s PMC resided either in foster group homes or were receiving basic child care services in non-emergency general residential operations. DFPS policy explicitly recognizes that foster group homes and general residential operations are more restrictive placements than foster family homes.
b. Children are placed, or are at an unreasonable risk of being placed, far from their home communities. The unavailability of suitable placements also puts children in placements far from their home communities. As of February 29, 2012, 6626 children, or 55 percent of the children in the State’s PMC, had been placed outside of their home counties, and 2986 children, or 25 percent of the children in the State’s PMC, had been placed not only outside of their home counties but also outside of their large multi-county DFPS Regions. In addition to these overall statistics, another
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manifestation of this structural deficiency in Texas foster care policies and practices is that, as of August 31, 2011, Harris County and its neighboring counties of Brazoria, Fort Bend, and Galveston had 36 of the 85 RTCs operating in the State. In June 2010 legislative testimony, then-Commissioner Anne Heiligenstein recognized that six out of ten children placed in Houston-area RTCs were from other regions across the state. She described the State’s network of residential treatment centers as a “scatter-gram” that unnecessarily complicates the lives of already troubled youth. c. Children are subject to, or are at an unreasonable risk of being subjected to, frequent moves from one placement to another. The unavailability of appropriate foster care placements also subjects children in the Licensed Foster Care Subclass to frequent and repeated moves from one placement to another and to an unreasonable risk of these placement moves. As of August 31, 2011, 35 percent of the children in the State’s PMC had been in five or more placements while in State custody. d. Children are separated from, or are at an unreasonable risk of being separated from, their siblings. Federal and state policy, as well as accepted professional standards, dictate that children be placed with their siblings while in foster care unless there is a therapeutic or safety-related reason to separate them. However, due to the unavailability of suitable placements, siblings in Texas foster care are too often separated for no therapeutic or safety-related reason. As of March 31, 2011, almost two-thirds of the children in the State’s PMC were part of sibling groups. Yet only 53.6 percent of these sibling groups were intact—that is, all of the children in the sibling group were placed together. In 26 percent of the sibling groups, none of the siblings were placed together.
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39. The inadequate number, geographical distribution, and array of placements causes harm to children in the Licensed Foster Care Subclass. The lack of appropriate placement options causes all children in the Licensed Foster Care Subclass to be placed inappropriately, or to be at an unreasonable risk of being placed inappropriately. Licensed Foster Care Subclass members are improperly placed in group care settings, thus deprived of the family-like settings mandated both by accepted professional standards and Texas’s own policies. Frequent and/or distant placement moves result in educational discontinuity and a deficient social support system. It is well-established that each move that a foster child experiences interrupts normal development and adds psychological trauma, with long-term implications for the child’s ability to develop healthy interpersonal relationships, good self-esteem, and even a conscience. Moreover, the health and safety of children placed far from their home communities may not be monitored by anyone with whom the children have a trusting relationship, as it is difficult for family members, court advocates, and even the children’s primary DFPS caseworkers to visit distant placements. Further, according to a December 2010 report to the Legislature by the Adoption Review Committee, the members of which were appointed by Governor Perry and then-Executive Commissioner Thomas Suehs, inappropriate sibling placement decisions “hinder and delay a child’s path to permanency.” Then-Commissioner Heiligenstein similarly acknowledged in a February 2011 presentation to the Texas House Human Services Committee that sibling separation negatively impacts children’s well-being and permanency outcomes. 40. Texas is deficient in its oversight and monitoring of foster care placements and fails to enforce compliance with its licensing standards. Texas fails to adequately monitor and oversee the child placing agencies and residential child care facilities that it licenses to take care of the children in foster care because it does not allocate sufficient resources to such oversight and
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because it does not enforce compliance with its own licensing standards. Instead of providing sufficient oversight of the safety of the children in their custody, Defendants rely too heavily upon the child placing agencies and residential facilities (almost all of which are private contractors) to “verify” the suitability of the thousands of homes and facilities that they manage and to monitor the safety of the children who reside in them. 41. The Residential Child Care Licensing division (“RCCL”) of DFPS is charged with licensing and regulating all child placing agencies and residential child care facilities in Texas. In 2011, those agencies and facilities included approximately 350 child placing agencies (including branch offices), 85 RTCs, and 160 other types of GROs (e.g., group care facilities, including emergency shelters and campus-type settings). Those agencies and facilities were responsible for approximately 8200 children in foster care placements in the State’s PMC. RCCL was tasked with overseeing more than 600 operations (which include more than 10,000 individual homes and facilities) with a staff of only 124 caseworkers and 24 supervisors. In state Fiscal Year 2011, RCCL found “deficiencies” in minimum standards of care in about 30 percent of the investigations it conducted at licensed agencies and facilities. The most common of these “deficiencies” involved use of corporal punishment; failure to complete required background checks; and deficiencies in the competency, judgment, and level of supervision of employees and caregivers. In response to these 812 findings of minimum standards deficiencies, Texas initiated only 16 “corrective actions” (13 “evaluations” and three “probations”) and took only two “adverse actions” (one permit suspension and one permit denial) against these 600 agencies and facilities. 42. Texas’s failure to adequately oversee and monitor its child placing agencies and residential facilities results in an unacceptable risk of harm, including maltreatment for foster
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children in the State’s PMC. Defendants’ own data shows that, for the period of October 25, 2010 to October 25, 2011, children in foster care in the State’s PMC were abused at an unacceptable rate. 43. Defendants’ deficient oversight of its agencies and residential facilities includes Defendants’ failure to enforce their own licensing standards and policies designed to ensure the safety and well-being of the children in their custody: For example, in early 2011, DFPS’s Child Care Licensing Division’s Performance Management Unit issued a report identifying numerous deficiencies in RCCL’s oversight and monitoring of the State’s residential child care operations. These deficiencies included a failure to do timely or effective follow-up inspections in more than a third of the residential operations with deficiencies that were sampled; an over-reliance on child placing agencies to investigate the foster homes they manage, apparently resulting in increased risk to the children in those homes; and the failure of virtually all of the corrective actions reviewed by the Performance Management Unit to reduce risk to children. In other words, Defendants do not have an adequate system or sufficient resources to ensure or enforce compliance with their own licensing standards, standards ostensibly designed to protect the safety and well-being of children cared for in foster care placements. 44. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 35-41, all Plaintiff Children in the Licensed Foster Care Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 45. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, and 35-41 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Licensed Foster Care Subclass. 46. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 35-41, all
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Plaintiff Children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. C. Structural Deficiencies That Harm All Putative Members of the Foster Group
Home Subclass 47. Foster group homes do not conform to accepted professional standards in several significant respects:
a. Foster group home caregivers have insufficient training and qualifications. The training and qualifications required by Texas for caregivers in foster group homes fall short of those required by accepted professional standards for caregivers in group living facilities. Even though twice as many children may be placed in a Texas foster group home than may be placed in a Texas foster family home, Texas requires no additional training for foster group home caregivers beyond that which is required for foster family home caregivers. Contrary to accepted professional standards, Texas sets no additional educational requirements for foster group home caregivers beyond a GED, a high school diploma, or an illustration of similar knowledge.
b. Foster group homes have insufficient professionals on staff. Texas does not require caregivers in foster group homes to be professionals, nor does it require that medical professionals be on staff or on call at foster group homes, contrary to accepted professional standards for group living facilities.
c. Foster group homes do not require waking caregivers. Accepted professional standards require that at least one caregiver be awake at all times in any group care
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facility. In Texas, there is no policy or practice requiring at least one caregiver to remain awake at all times in a foster group home. 48. Defendants’ placement of children in foster group homes results in harm and risk of harm to the safety and well-being of the children housed in such facilities. 49. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38, and 4546, all Plaintiff Children in the Foster Group Home Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 50. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, 35-38, and 45-46 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Foster Group Home Subclass. 51. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38, and 4546, all Plaintiff Children in the Foster Group Home Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive care, treatment, and services determined and provided through the exercise of accepted professional judgment. D. Structural Deficiencies That Harm All Putative Members of the Basic Care GRO Subclass 52. Texas uses general residential operations to house children who should not be placed in large group living facilities. Federal law, accepted professional standards, and Texas policy require that children be placed in the least restrictive, most family-like setting that meets their needs. Accepted professional standards and Texas policy therefore discourage the use of nonemergency group living facilities for children who need only basic child care services because such facilities are not the least restrictive, most family-like setting that meets the needs of these
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children. However, Texas routinely places children needing only basic child care services in large group residential facilities known as “GROs” because Texas has no appropriate placements for these children. Moreover, there are no limits on the numbers of children that can be housed in a GRO, effectively turning some of these GROs into modern-day orphanages, with a capacity of more than a hundred children. 53. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38 and 50, all Plaintiff Children in the Basic Care GRO Subclass have been harmed and are at continued risk of harm, including abuse and neglect. 54. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, 35-38 and 50 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Basic Care GRO Subclass. 55. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, 35-38 and 50, all Plaintiff Children in the Basic Care GRO Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive the most appropriate care, treatment, and services determined and provided through the exercise of accepted professional judgment. E. Structural Deficiencies That Harm All Putative Members of the Unverified Kinship
Subclass 56. Texas fails to require that its kinship homes be licensed or verified. Under Texas policy and practice, a kinship caregiver for a child in State custody is not required to be licensed or “verified” as a foster parent. Accepted professional standards require that such kinship homes meet the same standards as a licensed or verified foster home. 57. Unverified kinship providers do not receive necessary training. Under Texas policy and
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practice, unverified kin providers do not receive the same training for the care of children in State custody that is provided to licensed or verified foster parents. Accepted professional standards recognize that all kin providers should undergo such training for the care of children. 58. Children in unverified kinship care receive insufficient monetary assistance. Under Texas policy and practice, children in unverified kinship placements do not receive the monthly foster care financial support that the State provides to children living with licensed or verified foster parents. Accepted professional standards recognize that all children in State custody in kinship placements should receive foster care financial support to help cover costs for food, clothing, and other necessities. 59. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 54-56, all Plaintiff Children in the Unverified Kinship Subclass have been harmed and are at continuing risk of harm, including abuse and neglect. 60. Defendants’ actions and inactions listed above in ¶¶ 1-6, 27-28, and 54-56 are a substantial factor leading to and proximate cause of the violation of the constitutionally protected liberty and privacy interests of all Plaintiff Children in the Unverified Kinship Subclass. 61. By the actions and inactions of Defendants listed above in ¶¶ 1-6, 27-28, and 54-56, all Plaintiff Children in the Unverified Kinship Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution, including the right to be reasonably safe from harm while in government custody and the right to receive care, treatment, and services determined and provided through the exercise of accepted professional judgment.
COUNT II: FIRST, NINTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
(Asserted by Named Plaintiffs M.D., D.I., Z.H., S.A., J.S., H.V., A.M., K.E., L.H., and C.H. on
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behalf of all Plaintiff Children in the Licensed Foster Care Subclass) 62. Each of the foregoing allegations is incorporated as if fully set forth herein. 63. A right of family integrity and a right to a permanent family derive from the First Amendment’s right of association, the Ninth Amendment’s reservation of rights to the people, and the Fourteenth Amendment’s substantive due process protections. 64. The foregoing and following actions and inactions of Defendants Rick Perry, Kyle Janek, and John J. Specia, Jr., in their official capacities, constitute a policy or practice that is such a substantial departure from accepted professional judgment, practice, and standards as to demonstrate that Defendants did not base their conduct on such a judgment and/or shock the conscience by constituting deliberate indifference to the constitutionally protected rights of all Plaintiff Children in the Licensed Foster Care Subclass in the following respects: 65. Texas fails to maintain a sufficient number, geographic distribution, and array of placements. For many years and with knowledge of structural deficiencies, Defendants have maintained an insufficient number, geographic distribution, and array of foster care placements to meet the reasonably anticipated needs of Plaintiff Children in the Licensed Foster Care Subclass. 66. Children are placed far from their home communities. The lack of suitable placements subjects children to the risk of being placed far from their home communities. As of February 29, 2012, 6626 children, or 55 percent of all children in the State’s PMC, had been placed outside of their home counties, and 2986 children, or 25 percent of children in the State’s PMC, had been placed not only outside of their home counties but also outside of their large multicounty DFPS Regions. 67. Sibling groups are separated. The lack of suitable placements causes siblings to be separated for no therapeutic or safety reason, contrary to federal and state law, Texas’s own
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policy, and accepted professional standards. As of March 31, 2011, almost two-thirds of the children in the State’s PMC were part of sibling groups. Yet only 53.6 percent of these sibling groups were intact, that is, all of the children were placed together. In 26 percent of the sibling groups, none of the siblings were placed together. 68. Distant moves and family separation cause harm. Children moved to locations distant from their home communities are subject to a fractured social support system and erosion of familial connections. It is difficult for any family member to visit far-away placements. Further, sibling separation can “hinder and delay a child’s path to permanency,” according to a December 2010 report to the Texas legislature by the Adoption Review Committee. Then-Commissioner Heiligenstein reported to the legislature in February 2011 that sibling separation harms children’s well-being and permanency outcomes. 69. As a result of Defendants’ conduct, all Plaintiff Children in the Licensed Foster Care Subclass have been and are at further risk of being harmed and deprived of the liberty interests, privacy interests, and associational rights not to be deprived of a family relationship where safe and appropriate, as conferred on them by the First, Ninth, and Fourteenth Amendments to the United States Constitution.
CLASS ACTION ALLEGATIONS 70. This action is properly maintained as a class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 71. As to the General Class of All Plaintiff Children:
a. Numerosity. As of March 31, 2011, there were approximately 12,196 children in the State’s Permanent Managing Conservatorship. The General Class is sufficiently numerous as to make joinder impracticable.
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b. Common Question of Fact. Determination of the following common question of fact will resolve in one stroke the following issue that is central to the validity of each one of the individual Class member’s claims: Do the State’s policies and practices regarding the staffing of caseworkers for children in PMC depart from accepted professional judgment, practice, and standards for caseworker caseloads?
c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Class member’s claims: Do the State’s policies and practices regarding the staffing of caseworkers for children in PMC mean that children in the General Class have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
d. Typicality. The claims alleged by the Named Plaintiffs and the resultant harms are typical of the claims of each member of the putative General Class. Typicality exists because all absent General Class members have been injured, or are at risk of injury, as a result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because the Named Plaintiffs will fairly and adequately protect the interests of the General Class. There are no conflicts of interest between any of the Named Plaintiffs and the other General Class members. Moreover, the Named Plaintiffs’ proposed Next Friends, who sue on their behalf, are dedicated to the Named Plaintiffs’ best interests, familiar with this litigation, and willing and able to pursue this case on behalf of the Named Plaintiffs and the General Class that the Named Plaintiffs seek to represent.
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72. As to the Licensed Foster Care Subclass: a. Numerosity. As of March 31, 2011, there were approximately 8200 children in the State’s Permanent Managing Conservatorship who were in licensed or verified foster care, not including those children who were in verified kinship placements. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of fact will resolve in one stroke the following issues that are central to the validity of each one of the individual Subclass member’s claims: i. Does the State fail to maintain an adequate number, geographic distribution, and array of licensed foster care placements to ensure that the needs of the children in the Subclass are met in conformity with accepted professional judgment, practice, and standards? ii. Does the State fail to maintain oversight and monitoring of its licensed foster care placements sufficient to ensure compliance with its own licensing standards and accepted professional judgment, practice, and standards? c. Common Questions of Law. Determination of the following common questions of law will resolve the following legal issues that are central to the validity of each one of the individual Subclass member’s claims: i. Does the State’s failure to maintain an adequate number, geographic distribution, and array of licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
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ii. Does the State’s failure to maintain sufficient oversight and monitoring of its licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution?
iii. Does the State’s failure to maintain an adequate number, geographic distribution, and array of licensed foster care placements mean that children in the Licensed Foster Care Subclass have been and are at continuing risk of being deprived of the right of family integrity and the right to a permanent family, as conferred on them by the First, Ninth, and Fourteenth Amendments to the United States Constitution?
d. Typicality. The claims alleged by M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., and C.H. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Licensed Foster Care Subclass members have been injured, or are at risk of injury, as a result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H. and C.H. will fairly and adequately protect the interests of the Licensed Foster Care Subclass. There are no conflicts of interest between M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., C.H., and the other Licensed Foster Care Subclass members. Moreover, M.D.’s, D.I.’s, Z.H.’s, S.A.’s, J.S.’s, H.V.’s, K.E.’s, A.M.’s, L.H.’s and C.H.’s proposed Next Friends, who sue on their behalf, are dedicated to M.D.’s, D.I.’s, Z.H.’s, S.A.’s, J.S.’s, H.V.’s, K.E.’s,
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A.M.’s, L.H.’s, and C.H.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., C.H., and the Licensed Foster Care Subclass that M.D., D.I., Z.H., S.A., J.S., H.V., K.E., A.M., L.H., and C.H. seek to represent. 73. As to the Foster Group Home Subclass a. Numerosity. As of March 31, 2011, 1184 children in the State’s Permanent Management Conservatorship were placed in foster group homes. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of fact will resolve in one stroke the following issues that are central to the validity of each one of the individual subclass member’s claims: i. Do the State’s policies and practices with respect to its operation of foster group
homes depart from accepted professional judgment, practice, or standards regarding caregiver qualifications and training? ii. Do the State’s policies and practices with respect to its operation of foster group homes depart from accepted professional judgment, practice, or standards regarding staffing of professionals? iii. Do the State’s policies and practices with respect to its operation of foster group homes depart from accepted professional judgment, practice, or standards regarding waking caregivers? c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Do the State’s policies and practices with
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respect to the operation of its foster group homes mean that children in the Foster Group Home Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by H.V. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Foster Group Home Subclass members have been injured, or are at risk of injury, as a
result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because H.V. will fairly and adequately protect the interests of the Foster Group Home Subclass. There are no conflicts of interest between H.V. and the other Foster Group Home Subclass members. Moreover, H.V.’s proposed Next Friend, who sues on his behalf, is dedicated to H.V.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of H.V. and the Foster Group Home Subclass that H.V. seeks to represent.
74. As to the Basic Care GRO Subclass: a. Numerosity. As of March 31, 2011, 395 children in the State’s Permanent Management Conservatorship were placed in non-emergency general residential operations and receiving only basic child care services. The Subclass is sufficiently numerous as to make joinder impracticable. b. Common Question of Fact. Determination of the following common question of fact will resolve in one stroke an issue that is central to the validity of each one of the individual Subclass member’s claims: Does the State’s placement of children needing
27

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only basic child care services in non-emergency general residential operations depart from accepted professional judgment, practice, or standards? c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Does the State’s placement of children needing only basic child care services in non-emergency general residential operations mean that children in the Basic Care GRO Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by L.H. and C.H. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Basic Care GRO Subclass members have been injured, or are at risk of injury,
as a result of the same harmful state policies and practices.
e. Adequacy of Representation. Adequacy of representation exists because L.H. and C.H. will fairly and adequately protect the interests of the Basic Care GRO Subclass. There are no conflicts of interest between L.H., C.H., and the other Basic Care GRO Subclass members. Moreover, L.H. and C.H.’s proposed Next Friend, who sues on their behalf, is dedicated to L.H.’s and C.H.’s best interests, familiar with this litigation, and willing and able to pursue this case on behalf of L.H., C.H., and the Basic Care GRO Subclass that L.H. and C.H. seek to represent.
75. As to the Unverified Kinship Subclass: a. Numerosity. As of August 31, 2011, 2994 children in the State’s Permanent Management Conservatorship were placed in unverified kinship placements. The
28

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Subclass is sufficiently numerous as to make joinder impracticable. b. Common Questions of Fact. Determination of the following common questions of
fact will resolve in one stroke the following issues that are central to the validity of each one of the individual Subclass member’s claims: i. Do the State’s policies and practices with respect to the approval process for
unverified kinship home placements depart from accepted professional judgment, practice, or standards? ii. Do the State’s policies and practices with respect to the training of unverified kinship caregivers depart from accepted professional judgment, practice, or standards? iii. Do the State’s policies and practices with respect to financial support for children in State custody who are placed with unverified kinship caregivers depart from accepted professional judgment, practice, or standards? c. Common Question of Law. Determination of the following common question of law will resolve the following legal issue that is central to the validity of each one of the individual Subclass member’s claims: Do the State’s policies and practices for the operation of unverified kinship placements mean that children in the Unverified Kinship Subclass have been and are at continuing risk of being deprived of the substantive due process rights conferred upon them by the Fourteenth Amendment to the United States Constitution? d. Typicality. The claims alleged by P.O., S.R., M.R., J.R., A.R., and S.S. and the resultant harms are typical of the claims of each member of the putative Subclass. Typicality exists because all absent Unverified Kinship Subclass members have been
29

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injured, or are at risk of injury, as a result of the same harmful state policies and practices. e. Adequacy of Representation. Adequacy of representation exists because P.O., S.R., M.R., J.R., A.R., and S.S. will fairly and adequately protect the interests of the Unverified Kinship Subclass. There are no conflicts of interest between P.O., S.R., M.R., J.R., A.R., and S.S. and the other Unverified Kinship Subclass members. Moreover, the proposed Next Friends of P.O., S.R., M.R., J.R., A.R., and S.S., who sue on their behalf, are dedicated to their best interests, familiar with this litigation, and willing and able to pursue this case on behalf of P.O., S.R., M.R., J.R., A.R., S.S., and the Unverified Kinship Subclass that they seek to represent. 76. Each Named Plaintiff appears by a Next Friend, and each Next Friend is sufficiently familiar with the facts of the child’s situation to fairly and adequately represent the child’s interests in this litigation. 77. Plaintiffs’ counsel are: a. attorneys from the firm Canales & Simonson, P.C., a law firm in Corpus Christi; b. attorneys from the firm Haynes and Boone, LLP, an international law firm with Texas offices in Austin, Dallas, Fort Worth, Houston, and San Antonio; c. attorneys from the firm Yetter Coleman LLP, a Texas law firm with offices in Houston and Austin; and d. attorneys from Children’s Rights, a non-profit advocacy organization with its office in New York. 78. These lawyers have extensive experience litigating complex class action lawsuits in federal court, including substantial experience in child welfare class action institutional reform litigation. Plaintiffs’ attorneys have committed sufficient resources to represent the General Class and Subclasses. Plaintiffs’ counsel therefore are well suited to fairly and adequately
30

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represent the interests of the General Class and the Subclasses.
79. Defendants have acted or failed to act on grounds generally applicable to the General
Class and the Subclasses, necessitating declaratory and injunctive relief for the General Class
and the Subclasses. Plaintiffs’ counsel know of no conflicts among General Class or Subclass
members.
PRAYER FOR RELIEF
80. WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action;
b. Order that Plaintiff Children 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’ violation of Plaintiff Children’s substantive right to be free from harm under the due process clause of the Fourteenth Amendment to the United States Constitution, and Defendants’ violation of Plaintiff Children’s rights under the First, Ninth and Fourteenth Amendments to the United States Constitution;
d. Enter a permanent injunction as to all children in the General Class requiring Defendants to ensure that all children in the General Class are assigned DFPS caseworkers whose individual caseloads do not exceed the caseload standards established by the Child Welfare League of America and/or the Council on Accreditation;
e. Enter a permanent injunction as to all children in the Licensed Foster Care Subclass requiring (1) that an assessment by qualified professionals be conducted to determine (i) the aggregate need of all children in the Subclass for additional placements that will provide the necessary number, geographic distribution, and array of placement options for all children in the Subclass; (ii) the time period during which these placements will be developed; and (iii) the steps necessary to implement these placement options; and (2) Defendants implement the steps determined to be necessary by the foregoing assessment within the time period determined by that assessment.
f. Enter a permanent injunction as to all children in the Licensed Foster Care Subclass requiring (1) that an assessment by qualified professionals be conducted to determine (i) the resources and processes necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to Defendants’ foster care placements; (ii) the time period during which these resources
31

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and processes will be developed and implemented; and (iii) the steps necessary to develop and implement these resources and processes; and (2) Defendants implement the steps determined to be necessary by the foregoing assessment within the time period determined by that assessment. g. Enter a permanent injunction as to all children in the Foster Group Home Subclass requiring that Defendants cease placing children in foster group homes until those foster group homes are operated in compliance with accepted professional standards; h. Enter a permanent injunction as to all children in the Basic Care GRO Subclass requiring that Defendants cease placing children needing only basic child care services in non-emergency general residential operations; i. Enter a permanent injunction as to all children in the Unverified Kinship Subclass as follows: i. Requiring that kinship homes be licensed or verified in accordance with the same
standards used by Defendants to license or verify foster care placements; ii. Requiring that kinship caregivers receive the same training for the care of
children that is provided by Defendants to licensed and verified foster parents; and iii. Requiring that children in kinship homes receive the same monthly foster care financial support that Defendants provide to children living with licensed or verified foster parents; j. Appoint a Neutral Monitor to oversee the implementation of this order and to issue periodic reports to the Court. k. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys’ fees, pursuant to 28 U.S.C. § 1920, 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and l. Grant such other and further equitable relief as the Court deems just, necessary, and proper to protect Plaintiff Children from further harm by Defendants.
32

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Dated: May 24, 2013
/s/ Marcia Robinson Lowry Marcia Robinson Lowry (admitted pro hac vice) Stephen A. Dixon (admitted pro hac vice) Patrick Almonrode (admitted pro hac vice) Adam Dembrow (admitted pro hac vice) Christina Wilson (admitted pro hac vice) Melissa Cohen (admitted pro hac vice) Adriana T. Luciano (admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 mlowry@childrensrights.org sdixon@childrensrights.org palmonrode@childrensrights.org adembrow@childrensrights.org cwilson@childrensrights.org mcohen@childrensrights.org aluciano@childrensrights.org
R. Paul Yetter State Bar No. 22154200 S.D. Tex. Bar No. 3639 Dori Kornfeld Goldman State Bar No. 24041274 S.D. Tex. Bar No. 591632 Lonny Hoffman State Bar No. 00784282 S.D. Tex. Bar No. 15688 Christopher D. Porter State Bar No. 24070437 S.D. Tex. Bar No. 1052367 April L. Farris State Bar No. 24069702 S.D. Tex. Bar No. 1133331 YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 Facsimile: (713) 632-8002 pyetter@yettercoleman.com dgoldman@yettercoleman.com lhoffman@yettercoleman.com cporter@yettercoleman.com afarris@yettercoleman.com
33

Respectfully Submitted:
J.A. “Tony” Canales State Bar No. 03737000 S.D. Tex. Bar No. 1163 Hector Canales State Bar No. 24005961 S.D. Tex. Bar No. 29396 Patricia C. Bell State Bar No. 00793455 S.D. Tex. Bar No. 19506 CANALES & SIMONSON, P.C. 2601 Morgan Avenue Corpus Christi, Texas 78467-5624 Phone: (361) 883-0601 Facsimile: (361) 884-7023 tonycanales@canalessimonson.com hacanales@canalessimonson.com pmcanales@canalessimonson.com Attorneys-in-Charge
Barry F. McNeil State Bar No. 13829500 S.D. Tex. Bar No. 14914 R. Thaddeus Behrens State Bar No. 24029440 S.D. Tex. Bar No. 916025 David Dodds State Bar No. 00790595 S.D. Tex. Bar No. 35024 Amelia J. Cardenas State Bar No. 24056681 S.D. Tex. (admitted pro hac vice) HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Phone: (214) 651-5000 Facsimile: (214) 200-0535 barry.mcneil@haynesboone.com thad.behrens@haynesboone.com david.dodds@haynesboone.com amelia.cardenas@haynesboone.com
Attorneys for Plaintiffs and the Proposed General Class and Subclasses

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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of May, 2013, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to all CM/ECF participants, and that I have mailed by United States Postal Service the pleading to all non-CM/ECF participants.
_____/s/ Christina Wilson_____ Christina Wilson

 
 Case 2:11-cv-00084 Document 225 Filed in TXSD on 11/19/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend, Sarah R. Stukenberg, §

D.I., by his next friend, Nancy G. Pofahl,

§

Z.H., by his next friend, Carla B. Morrison, §

S.A., by her next friend, Javier E. Solis,

§

A.M., by her next friend, Jennifer Talley,

§

J.S., H.V., and P.O., by their next friend,

§

Anna J. Ricker, K.E., by her next friend,

§

John W. Cliff, Jr., S.R., M.R., and J.R.,

§

by their next friend, Bobbie M. Young, and §

L.H.. and C.H., by their next friend, Estela C. §

Vasquez, individually and on behalf of all §

others similarly situated,

§

§

Plaintiffs,

§

§

vs.

§

§

RICK PERRY, in his official capacity as

§

Governor of the State of Texas, KYLE

§

JANEK, in his official capacity as Executive §

Commissioner of the Health and Human

§

Services Commission of the State of Texas, §

and JOHN J. SPECIA, JR., in his official

§

capacity as Commissioner of the

§

Department of Family and Protective

§

Services of the State of Texas,

§

§

Defendants.

§

CIVIL ACTION NO. 2:11 CV-00084

AGREED ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE CLAIMS OF THE PROPOSED UNVERIFIED KINSHIP SUBCLASS

Before the Court is Defendants’ Motion for Partial Summary Judgment on the Claims of

the Proposed Unverified Kinship Subclass [D.E. 220]. Having considered the motion and

Plaintiffs’ agreement thereto on the basis recited below, the Court finds that the motion should be

granted as set forth below.

Case 2:11-cv-00084 Document 225 Filed in TXSD on 11/19/13 Page 2 of 2

IT IS HEREBY ORDERD that Plaintiffs’ Motion for Partial Summary Judgment on the Claims of the Proposed Unverified Kinship Subclass is GRANTED and such claims are DISMISSED, without prejudice to Plaintiffs filing a motion to amend their complaint to add a plaintiff or plaintiffs who are appropriate subclass representatives, and to renew their motion for certification of an Unverified Kinship Subclass, and without prejudice to the Defendants objecting to same.

SO ORDERED this

day of

, 2013.

Agreed:
/s/ Marcia Robinson Lowry Marcia Robinson Lowry CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001
Attorney for Plaintiffs
/s/ Thomas A. Albright Thomas A. Albright Southern District No. 107013 Assistant Attorney General, Office of the Attorney General of the State of Texas General Litigation Division - 019 P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 (512) 320-0667 FAX
Attorneys for Defendants

________________________________ HON. JANIS GRAHAM JACK UNITED STATES DISTRICT JUDGE

 
 Case 2:11-cv-00084 Document 228 Filed in TXSD on 11/25/13 Page 1 of 4 Clerk, u.s. District Court 8outhem District of Texas FILED NOV 2 5 2013

IN THE UNITED STATES COURT OF APPEALS o.'itdJ.Btadkly.Cierkofeourt

FOR THE FIFTH CIRCUIT

UnitedStatesCourtofAppeals Fifth Circuit

FILED

No. 13-90045

November 19, 2013 Lyle W. Cayce

Clerk

M.D., by next of friend Sarah R. Stukenberg; Z.H., by next of friend Carla B. Morrison; S.A., by next of friend Javier E. Solis; A.M., by next of friend Jennifer Talley; J.S., by next of friend Anna J. Ricker; K.E., by next of friend John W. Cliff, Jr.; H.V., by next of friend Anna J. Ricker; P.O., by next of friend Anna J. Ricker; L.H., by next of friend Estela C. Vasquez; C.H., by next offriend Estela C. Vasquez; S.S., by next of friend Estela C. Vasquez; A.R., by next of friend Tom McKenzie, individually and on behalf of all others similarly situated,

Plaintiffs-Respondents
v.

GOVERNOR RICK PERRY, in his official capacity as Governor of the State of Texas; KYLE JANEK, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; JOHN J. SPECIA, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,

Defendants-Petitioners

Petition for Permission to Appeal under Fed. R. Civ. P. 23(£) from the United States District Court for the Southern District of Texas USDC No. 2:11-CV-84
Before JONES, CLEMENT, and PRADO, Circuit Judges.

Case 2:11-cv-00084 Document 228 Filed in TXSD on 11/25/13 Page 2 of 4
No. 13-90045 PER CURIAM:*
On August 27, 2013, the district court certified a class of 12,000 children in the Texas foster care system in a suit alleging systemic violations of the children's rights and seeking broad, affirmative injunctive relief. On September 11, 2013, Defendants-Petitioners, the State of Texas ("the State"), filed a petition for permission to appeal the class certification order under Federal Rule of Civil Procedure 23(£). Plaintiffs-Respondents moved to dismiss the petition as untimely, arguing the petition was filed one day late. The State then filed a motion to suspend Federal Rule of Appellate Procedure 25(a)(2)(A) and Fifth Circuit Rule 26.1, which pertain to the circumstances under which a filing is considered timely. For the reasons stated below, we dismiss this petition as untimely.
Rule 23(£) provides that "[a] court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered." Fed. R. Civ. P. 23 (emphasis added). The fourteenday time limit for filing a Rule 23(£) petition is "strict and mandatory." 1 Harper v. Am. Airlines, Inc., 371 F. App'x 511, 512 (5th Cir. 2010) (per curiam) (unpublished) (citing Gutierrez v. Johnson & Johnson, 523 F.3d 187, 192 (3d
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 Here, where Plaintiffs-Respondents have properly raised a timeliness challenge to the Rule 23(f) petition, we do not need to decide whether the timeliness requirement is jurisdictional or merely a claims-processing rule. See Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam) (holding a timeliness requirement under the Federal Rules of Criminal Procedure nonjurisdictional). Even if we assume Rule 23(f) were an "inflexible" claimprocessing rule, we would still "assure relief to a party properly raising [the rule]." Id. In other words, "[e]ven if not jurisdictional, a deadline is mandatory in the sense that if invoked by a party in timely fashion the court is bound by it." McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 485 (7th Cir. 2012).
2

Case 2:11-cv-00084 Document 228 Filed in TXSD on 11/25/13 Page 3 of 4
No. 13-90045 Cir. 2008), and Jenkins u. BellSouth Corp., 491 F.3d 1288, 1290 (11th Cir. 2007)); see also 3 William B. Rubenstein, Newburg on Class Actions§ 7:51 (5th ed. 2013) ("[C]ourts of appeals have applied [Rule 23(f)'s time limit rule] strictly."); 2 Joseph M. McLaughlin, McLaughlin on Class Actions § 7:1 (9th ed. 2012) (collecting cases). 2 As this Court has previously stated, "Rule 23(£) permits the court of appeals to accelerate appellate review; but to ensure that there is only one window of potential disruption, and to permit the parties to proceed in confidence about the scope and stakes of the case thereafter, the window of review is relatively small." Gene & Gene, L.L.C. u. BioPay, L.L.C., 624 F.3d 698, 703 (5th Cir. 2010) (quoting McNamara u. Felderhof, 410 F.3d 277, 281 n.9 (5th Cir. 2005)).
Here, the State missed its narrow window to seek review. Pursuant to Federal Rule of Civil Procedure 23(£), it had fourteen days from the issuance of the certification order on August 27 in which to file. Under Federal Rule of Appellate Procedure 25(a)(2)(A) and Fifth Circuit Rule 26.1, this Court must actually receive the petition in order for the filing to be timely. Thus, this Court had to actually receive the filing by September 10. This Court did not receive the filing until September 11.
The State attempts to avoid the consequences of its untimely filing by urging us to suspend the rules that define when a petition is timely filed. The State asks us to use our power under Federal Rule of Appellate Procedure 2 to suspend these rules. It further contends that suspending the rules that state the proper method for timely filing does not amount to an extension of time to file. We find these arguments untenable.
2 Rule 23(f) was amended effective December 1, 2009 to provide for a fourteen-day deadline including Saturdays, Sundays, and legal holidays. Before the amendment, the rules imposed a ten-day deadline, excluding Saturdays, Sundays, and legal holidays. See Harper, 371 F. App'x at 512 n.2. The amendment does not change our analysis or reliance on preamendment cases.
3

Case 2:11-cv-00084 Document 228 Filed in TXSD on 11/25/13 Page 4 of 4
No. 13-90045 Rule 2 does not give us discretion to suspend the rules in this case. Rule 2 states"[o]n its own or a party's motion, a court of appeals may-to expedite its decision or for other good cause-suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b)." Fed. R. App. P. 2 (emphasis added). Rule 26(b), in turn, provides that "the court may not extend the time to file ... a petition for permission to appeal." Fed. R. App. P. 26(b)(l) (emphasis added). Read together, Rules 2 and 26(b) plainly forbid us from extending the time for a petition for permission to appeal. Suspending the rules that define when a petition is timely filed would, in effect, extend the time to file the Rule 23(£) petition. Therefore, we DENY the Petitioners' opposed motion to suspend Federal Rule of Appellate Procedure 25(a)(2)(A) and 5th Circuit Rule 26.1. We further GRANT the Respondents' opposed motion to dismiss and DISMISS the petition for permission to appeal under Federal Rule of Civil Procedure 23(£).
4

 
 Case 2:11-cv-00084 Document 277 Filed in TXSD on 11/14/14 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend Sarah R. Stukenberg, et al., individually and on behalf of all others similarly situated,
Plaintiffs,
v.
RICK PERRY, in his official capacity as Governor of the State of Texas, et al.,
Defendants.

) ) ) ) ) ) CASE NO. 2:11-cv-00084 ) ) ) ) ) )

JOINT PRETRIAL ORDER

1. APPEARANCES OF COUNSEL

a. Plaintiffs

R. Paul Yetter Dori Kornfeld Goldman Lonny Hoffman Christopher D. Porter YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Phone: (713) 632-8000 Fax: (713) 632-8002
Barry F. McNeil David Dodds HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Phone: (214) 651-5000 Fax: (214) 651-5940

Marcia Robinson Lowry (admitted pro hac vice) Sara Bartosz (admitted pro hac vice) Stephen A. Dixon (admitted pro hac vice) Christina Wilson Remlin (admitted pro hac vice) Adam Dembrow (admitted pro hac vice) Adriana T. Luciano (admitted pro hac vice) Julia L. Davis (admitted pro hac vice) Joshua Rosenthal (admitted pro hac vice) Sarah T. Russo (admitted pro hac vice) Rachel Brodin Nili (admitted pro hac vice) Aaron Finch (admitted pro hac vice) Elizabeth Pitman (admitted pro hac vice) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 Phone: (212) 683-2210 Fax: (212) 683-4015

Case 2:11-cv-00084 Document 277 Filed in TXSD on 11/14/14 Page 2 of 35
b. Defendants Thomas A. Albright Marc Rietvelt Andrew B. Stephens Assistant Attorneys General Office of the Attorneys General General Litigation Division – 019 P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Phone: (512) 463-2120 Fax: (512) 320-0667
2. STATEMENT OF THE CASE a. Plaintiffs’ Statement of the Case Plaintiffs are a certified General Class and three Subclasses of children legally assigned
to the Permanent Managing Conservatorship (“PMC”) of the Texas Department of Family and Protective Services (“DFPS”) for their basic protection and care. The individual Named Plaintiffs brought this case on behalf of the approximately twelve thousand children in PMC who daily suffer unconstitutional harm and the ongoing risk of harm due to longstanding structural deficiencies in DFPS’s foster care system. Children in PMC, all of whom already have been in state foster care custody for at least one year, suffer physical and psychological harm flowing from unnecessarily long stays in foster care, delays in or lack of permanency placements that are not suited to meet their needs, frequent moves from one placement to another, disrupted sibling and family relationships, disrupted community connections, and prolonged exposure to unsafe conditions in inadequately monitored foster care settings.
In accordance with the Fifth Circuit’s instructions and this Court’s order granting class certification, Plaintiffs focus their claims on specifically-identified structural deficiencies long existing within DFPS. With respect to the General Class, Plaintiffs assert that Defendants fail to exercise professional judgment and violate accepted standards of practice in maintaining

Case 2:11-cv-00084 Document 277 Filed in TXSD on 11/14/14 Page 3 of 35
excessive caseworker caseloads. With respect to the Licensed Foster Care Subclass, Plaintiffs assert that Defendants fail to exercise professional judgment and violate accepted standards of practice in maintaining inadequate regulatory oversight of licensed foster care providers and an insufficient array of foster care placements across the State. With respect to the Basic Care GRO Subclass, Plaintiffs assert that DFPS fails to exercise professional judgment and violates accepted standards of practice in improperly placing children who are receiving only basic level services, which could be provided in a foster home, into institutional facilities intended for children with elevated needs. With respect to the Foster Group Home Subclass, Plaintiffs assert that Defendants fail to exercise professional judgment and violate accepted standards of practice by permitting the operation of these foster group homes, which are unique to Texas, without essential safeguards necessary to protect children from known risks attendant to congregate care settings. Plaintiffs contend that each of the above structural deficiencies creates a common risk of harm to all members of the General Class or Subclass that is subject to cure with a single injunction benefitting all class members.
Plaintiffs’ trial evidence will include: DFPS and federal performance data on pertinent child welfare outcomes; applicable federal and state laws, regulations, and policies, as well as accepted standards promulgated by national child welfare organizations; the testimony (at trial and by deposition) of DFPS officials; and DFPS business records and internal communications. Plaintiffs also intend to present several expert witnesses.
b. Defendants’ Statement of the Case Plaintiffs seek comprehensive institutional reform of the foster care system in Texas through mandatory and prohibitory injunctions that manage the delivery of foster care services at the caseworker staffing and placement decision levels, prohibit the use of valuable placement
3

Case 2:11-cv-00084 Document 277 Filed in TXSD on 11/14/14 Page 4 of 35
options, and essentially punt to a team of unidentified “qualified professionals” the task of coming up with solutions that Plaintiffs and their own team of experts could not devise.
Plaintiffs have accurately characterized the case as a class action; however, Defendants denied and continue to deny the propriety of certification on the grounds that as to each class: 1) individualized issues concerning the class members themselves, their unique placements, their specific caseworkers, diverse characteristics across the state (geographically, culturally and in the delivery of foster care services), and the culpability standard as applied to the unique circumstances of each class claimant defeat commonality and typicality under Fed. R. Civ. P. 23(a), and 2) the remedy the class seeks fails to satisfy Rules 23(b)(2) and 65(d) due to lack of uniformity of injury and lack of specificity.
Plaintiffs’ claims, as they describe them in their Statement of the Case, are not cognizable under Fourteenth Amendment substantive due process law. Under the law in the Fifth Circuit, children in foster care in Texas have a right to personal security and reasonably safe living conditions. Defendants do not have a more expansive constitutional duty either “to assure the safety, permanence and well-being” of children in the permanent managing conservatorship of DFPS or to keep those children free from an undefined and open-ended “ongoing risk of harm.” Further, culpability under the Fourteenth Amendment in the Fifth Circuit (and almost every other circuit) is determined with reference to deliberate indifference that shocks the conscience and not, as Plaintiffs contend, to whether Defendants “fail to exercise professional judgment and violate accepted standards of practice.” If Plaintiffs proceed on the claims they have described, both as to scope of duty and culpability standard, Defendants will be entitled to judgment as a matter of law.
4

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3. JURISDICTION Because this action is brought pursuant to 42 U.S.C. § 1983, this Court has jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 4. MOTIONS
Doc. No. 271 – Motion to Exclude Testimony of Dr. Edwin Basham Due to Improper Conduct [Judge Jack indicated she would rule on this motion at trial.] 5. CONTENTIONS OF THE PARTIES a. Plaintiffs’ Contentions Texas fails to maintain an adequate number of conservatorship caseworkers and supervisors to assure the safety, permanency, and well-being of PMC children in its care. In violation of Plaintiffs’ substantive due process right to be free from harm and the unreasonable risk of harm while in state custody, Texas maintains conservatorship worker caseloads exceeding widely accepted professional standards and its own workload analyses. The State is aware of the resulting risk of harm to children, and yet has historically failed to effectively address the issue. As a result, all children in the General Class are subject to an imminent risk of deprivation of adequate care and the right to a safe, secure, and suitable placement due to the State’s failure to maintain reasonable caseloads. Texas maintains a licensing function that has insufficient staffing capacity to conduct adequate oversight of licensed foster care placements and has a quality assurance system incapable of adequately identifying and correcting deficiencies in licensing policy and practices. DFPS’s licensing arm, Residential Child Care Licensing, lacks sufficient staffing capacity to meet policy requirements and lacks a quality assurance capability that meets accepted standards for continuous quality improvement. As a result, all children in the Licensed Foster Care Subclass are subject to an imminent risk of deprivation of adequate care and the right to a safe,
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secure, and suitable placement due to the State’s failure to maintain sufficient oversight and monitoring of its licensed foster care placements.
Texas fails to maintain a sufficient number, geographic distribution, and array of foster care placements. The State admits that its foster care system does not have the right type and number of placements appropriately distributed across the State. Because of the inadequate array of placements, children are placed outside their home communities, placed in placement types not suitable to their needs, separated from their siblings, and moved from place to place far too frequently. All children in the Licensed Foster Care Subclass are subject to an imminent risk of deprivation of adequate care and the rights to a safe, secure, and suitable placement and sibling connection due to the State’s failure to maintain a sufficient number, geographic distribution, and array of foster care placements.
Texas places children whose needs could be met in a family-like setting in institutions. Texas routinely uses non-emergency general residential operations to house children who the State itself has determined require only basic child care services. Accepted professional standards and federal law, as well as DFPS’s own policies, require children to be placed in the least restrictive, most family-like settings that meet their needs. The practice of utilizing general residential operations to serve children receiving only basic level services places all children in this subclass at risk of physical, psychological, and developmental harm.
Texas operates foster group homes which do not conform to professional standards for group living. Unlike family foster homes, which are limited to six children, foster group homes house seven to 12 children of varying ages who are often strangers to each other, supervised by one or two foster group home “parents” who, unlike in general residential operations and residential treatment centers, are not staffed in shifts but are responsible for all the children in the
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foster group home on a 24-hour-per-day, 365-day-per-year basis. All children in the Foster Group Home Subclass are subject to an imminent risk of deprivation of adequate care and the right to a safe, secure, and suitable placement due to the absence of trained professional staff, waking caregivers, and on-staff or on-call medical personnel in foster group homes.
b. Defendants’ Contentions The sole legal basis of Plaintiffs’ claims is an alleged violation of substantive due process under the due process clause of the Fourteenth Amendment. To demonstrate a viable substantive due process claim the Plaintiffs must show, among other things, that the state acted in a manner that shocks the conscience. Such a showing is necessary whether the Court applies a deliberate indifference standard, as required in the Fifth Circuit, or an abdication of professional judgment standard, as adopted in a small minority of other circuits. Far from shocking the conscience, DFPS has operated foster care in Texas in a manner that meets or exceeds six of the seven national standards established by the U.S. Department of Health and Human Services (acting through the Children’s Bureau of HHS’ Administration for Children and Families) with respect to safety and permanency outcomes for children in foster care and missed on the seventh standard only by a small margin (30.5% vs. 31.2%). Plaintiffs are in the untenable position of trying to prove that nearly uniform compliance with federal standards violates substantive due process rights and shocks the conscience. On that slender reed, they ask this Court to institute and oversee a complete overhaul of the state’s foster care system. Defendants respectfully urge the Court to decline. Rather than focusing on a properly-framed substantive due process claim, Plaintiffs will try this case as if they had sued for violations of federal statutory law, state law, state regulations, best practices, aspirational goals, and subjective standards unilaterally set by their own expert witnesses, none of which are within the ambit of the Fourteenth Amendment and none of which
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are actionable against the state. As to the constitutional claim that they have asserted, Plaintiffs will assume, without legal support, that substantive due process includes rights it does not, such as rights to placement in the least restrictive, most family-like foster care setting, a “suitable” placement, case planning, parental and sibling visitation, a stable placement, an adequate number and array of placements, conservatorship caseworkers, caseworkers to whom a limited number of children are assigned, limited duration of time in state custody, permanence, permanency conferences, infrequent placement moves, well-being, absolute safety, safeguards that prevent the child from deteriorating either physically or psychologically, and foster care services delivered in the manner described by child welfare advocacy groups, leagues, societies and councils. Ignoring the Fifth Circuit’s limitation of a foster child’s substantive due process right as one to personal security and reasonably safe living conditions, Plaintiffs will also assume, without legal support, that ill-defined and subjective concepts of “harm” outside the scope of that underlying duty are nevertheless actionable under substantive due process law. In so doing, Plaintiffs will attempt to set the hurdle higher than that actually set by the Fourteenth Amendment.
As to their cognizable substantive due process claims, the class representatives for the general class and the three subclasses the Court certified will fail to prove those claims. This failure of proof will follow the same general pattern. Plaintiffs will identify what they claim are systemic shortcomings of the foster care system, speculate as to potential harms they associate therewith (many such harms being subjective, amorphous, non-cognizable, and well outside the scope of personal security and reasonably safe living conditions), offer little or no proof that the shortcomings are indeed system-wide, offer no proof that all members of the class suffer the same injury, and then simply assume without reliable proof that the shortcomings have caused
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the alleged harm. Their proof will be wholly silent on the magnitude of any risk of harm they allege and, lacking any analysis of magnitude, they will offer no proof that any such risk is unreasonable. This failure of proof will play out in each of the following particulars: that DFPS’ conservatorship caseworker caseloads cause all children in PMC to suffer an unreasonable risk that their right to personal security and reasonably safe living conditions will be denied; inadequate regulatory oversight by DFPS causes all children in PMC who are in licensed facilities to suffer an unreasonable risk that their right to personal security and reasonably safe living conditions will be denied; DFPS’ placement array causes all children in PMC who are in licensed facilities to suffer an unreasonable risk that their right to personal security and reasonably safe living conditions will be denied; that DFPS causes all Basic Service Level PMC children placed in a General Residential Operation to suffer an unreasonable risk that their right to personal security and reasonably safe living conditions will be denied; and DFPS causes all children placed in Foster Group Homes to an unreasonable risk that their right to personal security and reasonably safe living conditions will be denied due to lack of a wake staff, inadequate foster parent training, and inadequate access to medical services. Plaintiffs will fail to prove violation of a constitutional duty in each regard. They will further fail to satisfy the applicable culpability standard of deliberate indifference that shocks the conscience or the alternative standard, which Defendants contend does not apply, of abdication of professional responsibility that shocks the conscience.
Plaintiffs’ proof will be deficient on remedy as well. Lacking reliable proof of causation of harm as to the alleged systemic shortcomings, their attempt at proof of an effective remedy will likewise fail. Plaintiffs will either fail to offer a well-defined remedy (such as a specific “fix” for the alleged array inadequacy) or they will be unable to prove that the relief they do
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define will indeed be effective to remedy the constitutional harm. Further, injunctive relief of
any nature is inappropriate because any harm Plaintiffs attempt to prove will be conjectural and
hypothetical, not real and imminent.
Finally, and equally dispositive of their claims, Plaintiffs will fail to prove: a) their
classes are properly certifiable under Fed. R. Civ. P. 23(a)(2) and (3) and Rule 23(b)(2), and b)
that the Named Plaintiffs and all class members have standing.
Defendants’ contentions are captured more fully in their proposed findings of fact and
conclusions of law.
6. ADMISSIONS OF FACT 1. There are roughly 12,000 children in DFPS’s PMC at a given time.
2. DFPS divides Texas into 11 administrative regions with a state headquarters in Austin.
3. CPS regional directors manage child protective services in each administrative region.
4. Each CPS regional director reports to the CPS Director of Field Operations, Colleen McCall. The CPS Director of Field Operations, in turn, reports to the Assistant Commissioner for Child Protective Services, Lisa Black. The CPS Assistant Commissioner reports to the DFPS Commissioner, John Specia.
5. The Child Care Licensing division (“CCL”) within DFPS is headed by Assistant Commissioner Paul Morris, who reports directly to DFPS Commissioner Specia. Within CCL are four units: Residential Child Care Licensing (“RCCL”), Day Care Licensing, Policy and Program Operations, and the Performance Management Unit (“PMU”).
6. RCCL is headed by Director Jean Shaw, who reports to Assistant Commissioner for CCL Paul Morris.
7. Ms. Shaw currently oversees three Program Managers who are responsible for RCCL practice in distinct geographic areas. RCCL policy is set forth in the Licensing Policy and Procedure Handbook that applies statewide.
8. Tila Johnson is the Program Manager for the East District, which consists of DFPS Areas 4, 5 and 6; Willie Salas is the Program Manager for the South Central District, which consists of DFPS Areas 7, 8, 10, and 11; and Joy Waldrop is the Program Manager for the Northwest District, which consists of DFPS Areas 1, 2, 3, and 9.
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9. Leslie Reid is the Division Administrator for the Performance Management Unit.
7. CONTESTED ISSUES OF FACT a. Plaintiffs’ Position
1. Whether DFPS maintains a workforce insufficient to adequately assure the safety, permanency, and well-being of the children in DFPS’s custody, thereby departing from accepted professional judgment.
2. Whether DFPS’s insufficient workforce harms and places at risk of imminent harm children in DFPS’s custody.
3. Whether DFPS maintains a licensing function that lacks (i) sufficient staffing capacity to conduct adequate oversight of licensed foster care placements and (ii) a quality assurance system capable of adequately identifying and correcting deficiencies in licensing policy and practices, thereby departing from accepted professional judgment.
4. Whether DFPS’s inadequate licensing function harms and places at risk of imminent harm children in licensed foster care.
5. Whether DFPS maintains an inadequate array of placements and services in a manner that substantially departs from accepted professional judgment.
6. Whether DFPS’s inadequate placement array harms and places at risk of imminent harm children in licensed foster care.
7. Whether DFPS uses institutions to house children whose needs could be met in a family-like setting and thus substantially departs from state law, federal law, and accepted professional judgment.
8. Whether DFPS’s improper use of institutions for children whose needs could be met in a family-like setting harms and places at risk of imminent harm these children.
9. Whether DFPS places children in foster group homes lacking basic safeguards, thereby substantially departing from professional standards.
10. Whether DFPS’s use of foster group homes that substantially depart from professional standards harms and places at risk of imminent harm children placed in them.
b. Defendants’ Position General Class
Whether:
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1. Plaintiffs failed to prove that there is a widely accepted professional standard for a conservatorship caseworker caseload, including what it means to be “accepted,” which foster care agencies (or other entities that actually serve as managing conservators for children in state custody) have accepted that caseload standard, which have not and whether the former outnumber the latter so much so as to constitute “widely accepted,” that acceptance of such standard is necessary in order to adequately serve children, and that there are no other means by which caseloads may be managed in order to adequately serve children in conservatorship.
2. Plaintiffs failed to prove that any such standard creates a maximum, above which the caseload is excessive in the sense that the caseworker will fail to perform some task she would otherwise perform, i.e., but for her excessive caseload, and that such failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of any resulting harm.
3. Plaintiffs have failed to prove what caseload level in Texas would be fairly comparable to the standard that Plaintiffs characterize as widely accepted, taking into account the characteristics of the foster care system in Texas and the various factors to be considered pursuant to that standard.
4. Plaintiffs have failed to prove whether and, if so, the extent to which caseloads in Texas exceed what would be comparable in Texas to what Plaintiffs characterize as the widely accepted professional standard.
5. Plaintiffs have failed to prove that there is a caseworker caseload level in Texas, above which the caseload is excessive in the sense that the caseworker will fail to perform some task he would otherwise perform and that that failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of that harm.
6. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads in Texas and harm to any child in the class and for all children in the class.
7. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
8. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads and the occurrence of abuse or neglect to children in PMC.
9. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads and permanency outcomes for children in PMC.
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10. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and harm to each child in the class and to all children in the class.
11. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
12. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and the occurrence of abuse or neglect to children in PMC.
13. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and permanency outcomes for children in PMC.
14. Plaintiffs have failed to prove the magnitude of risk of harm to children in PMC in Texas caused by excessive caseloads in Texas.
15. Plaintiffs have failed to objectively quantify the risk to which children in PMC are currently exposed caused by excessive caseloads in Texas.
16. Plaintiffs have failed to prove that the risk of harm to children in PMC in Texas caused by excessive caseloads in Texas is unreasonable.
17. Plaintiffs have failed to prove that harm caused by excessive caseloads is actually imminent for any child and all children in PMC.
18. Plaintiffs have failed to prove that denial of a PMC child’s right to personal security and reasonably safe living conditions caused by excessive caseloads is actually imminent for any child and all children in PMC.
19. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, excessive caseloads have caused harm of any nature to children in PMC in the past.
20. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, excessive caseloads have caused denial of a PMC child’s right to personal security and reasonably safe living conditions in the past.
21. Plaintiffs have failed to prove that all children in PMC, on a statewide, regional and county basis, have a caseworker with an excessive caseload.
22. Plaintiffs have failed to prove that all conservatorship caseworkers, on a statewide, regional and county basis, have excessive caseloads, without regard to each caseworker’s actual caseload and his or her ability to handle a caseload.
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23. Plaintiffs have failed to prove that what is an excessive caseload for one caseworker is also excessive for all other conservatorship caseworkers throughout the state, without regard to the individual caseworkers’ experience, education, training, and ability or to the caseload conditions and management practices in the units and regions in which such caseworkers work.
24. Plaintiffs have failed to prove that all children in PMC are subject to the same risk, including magnitude of risk, of being assigned a conservatorship caseworker whose caseload is excessive (and excessive as to that particular caseworker) and that such excessive caseload will cause or likely cause harm to all such children.
25. Plaintiffs have failed to prove that a caseworker who has what Plaintiffs characterize as an excessive caseload presents the same risk, and same degree of risk, to all children assigned to him or to her, without regard to the individual characteristics of the child and the specific circumstances of the child’s placement.
26. Plaintiffs have not demonstrated that DFPS’ conservatorship caseworker caseloads cause all children in PMC to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
27. The level of personal security a child experiences in PMC, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
28. Whether a PMC child is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including his or her specific placement.
29. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
30. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to caseloads for any and all children in PMC shocks the conscience.
31. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference to any and all children in PMC with respect to conservatorship caseloads.
32. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference to any and all children in PMC with respect to conservatorship caseloads.
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33. Far from acting with deliberate indifference, Defendants engage in a broad spectrum of conduct to mitigate a wide variety of risks associated with children in conservatorship, including risks associated with caseworker caseloads.
34. Plaintiffs have failed to prove a level of conservatorship caseload in Texas would not be excessive.
35. Plaintiffs have failed to prove what risk of harm caused by conservatorship caseloads would be reasonable.
36. Plaintiffs have failed to prove that ordering any caseload limits would remedy any harm they have attempted to associate with caseloads.
37. Plaintiffs have failed to prove that ordering a specific caseload limit would remedy any harm they have attempted to associate with caseloads.
38. Plaintiffs have failed to prove what level of caseload limit would result in a reasonable risk of harm.
39. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether conservatorship caseloads result in a reasonable risk of harm to children in PMC, both as to any child in the class and to all children in the entire class.
40. Plaintiffs have failed to prove the specific remedy they seek for the General Class and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the caseworker caseload wrong of which they complain.
Licensed Foster Care Subclass--Oversight
Whether:
41. Plaintiffs have failed to prove that there is a widely accepted professional standard for a licensing inspector or investigator caseload, including what it means to be “accepted,” which foster care agencies (or other entities that actually serve as managing conservators for children in state custody) have accepted that caseload standard, which have not and whether the former outnumber the latter so much so as to constitute “widely accepted,” that acceptance of such standard is necessary in order to adequately serve children, and that there are no other means by which caseloads may be managed in order to adequately serve children in conservatorship.
42. Plaintiffs failed to prove that any such standard creates a maximum, above which the caseload is excessive in the sense that the licensing inspector or investigator will fail to perform some task she would otherwise perform, i.e., but for her excessive caseload, and that such failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of any resulting harm.
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43. Plaintiffs have failed to prove what licensing inspector or investigator caseload level in Texas would be fairly comparable to the standard that Plaintiffs characterize as widely accepted, taking into account the characteristics of the foster care system in Texas and the various factors to be considered pursuant to that standard.
44. Plaintiffs have failed to prove whether and, if so, the extent to which licensing inspector or investigator caseloads in Texas exceed what would be comparable in Texas to what Plaintiffs characterize as the widely accepted professional standard.
45. Plaintiffs have failed to prove that there is a licensing inspector or investigator caseload level in Texas, above which the caseload is excessive in the sense that the licensing inspector or investigator will fail to perform some task he would otherwise perform and that that failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of that harm.
46. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight in Texas and harm to any child in the Licensed Foster Care subclass and for all children in the class.
47. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
48. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight and the occurrence of abuse or neglect to children in placed in licensed foster care.
49. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight and permanency outcomes for all children placed in licensed foster care.
50. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight and harm to any child in the class and to all children in the class.
51. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
52. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight and the occurrence of abuse or neglect to all children placed in licensed foster care.
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53. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight and permanency outcomes for all children placed in licensed foster care.
54. Plaintiffs have failed to prove the magnitude of risk of harm to children in licensed foster care caused by inadequate oversight.
55. Plaintiffs have failed to objectively quantify the risk to which all children placed in licensed foster care are currently exposed caused by inadequate oversight.
56. Plaintiffs have failed to prove that the risk of harm to all children placed in licensed foster care caused by inadequate oversight is unreasonable.
57. Plaintiffs have failed to prove that harm caused by inadequate oversight is actually imminent for any child and all children in licensed foster care.
58. Plaintiffs have failed to prove that denial of a child’s right to personal security and reasonably safe living conditions caused by inadequate oversight is actually imminent for any child and all children in licensed foster.
59. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, inadequate oversight has caused in the past harm of any nature to children in licensed foster care.
60. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, inadequate oversight has caused in the past denial of a child’s right to personal security and reasonably safe living conditions for children placed in licensed foster care.
61. Plaintiffs have failed to prove inadequate oversight on a statewide, regional and county basis, such that all children in the class are in placements for which there is inadequate oversight.
62. Plaintiffs have failed to prove that what is an excessive caseload for one licensing inspector or investigator is also excessive for all other such workers throughout the state, without regard to the individual workers’ experience, education, training, and ability or to the caseload conditions and management practices in the units and regions in which such workers work.
63. Plaintiffs have not demonstrated that DFPS’ licensed foster care oversight causes all children in licensed foster care placements to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
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64. The level of personal security a child experiences in a licensed foster care placement, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
65. Whether a child in a licensed placement is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including his or her specific placement.
66. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
67. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to licensed care oversight for any and all children in licensed placements shocks the conscience.
68. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference to any and all children in licensed placements with respect to licensed care oversight.
69. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference to any and all children in licensed placements.
70. Far from acting with deliberate indifference, Defendants engage in a broad spectrum of conduct to mitigate a wide variety of risks associated with children in conservatorship, including risks associated with licensed foster care inspections and investigations.
71. Plaintiffs have failed to prove a level of licensing inspector and investigator caseloads in Texas would not be excessive.
72. Plaintiffs have failed to prove what risk of harm associated with licensed care oversight would be reasonable.
73. Plaintiffs have failed to prove that ordering any caseload limits for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.
74. Plaintiffs have failed to prove that ordering any staffing levels for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.
75. Plaintiffs have failed to prove that ordering a specific caseload limit for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.
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76. Plaintiffs have failed to prove that ordering a specific staffing level for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.
77. Plaintiffs have failed to prove what level of caseload limits for licensing inspectors and investigators would result in a reasonable risk of harm.
78. Plaintiffs have failed to prove what level of staffing for licensing inspectors and investigators would result in a reasonable risk of harm.
79. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether licensing inspector and investigator caseloads result in a reasonable risk of harm to children in licensed foster care, both as to any child in the class and to all children in the entire class.
80. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether licensing inspector and investigator staffing levels result in a reasonable risk of harm to children in licensed foster care, both as to any child in the class and to all children in the entire class.
81. Plaintiffs have failed to prove what resources and processes are necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to licensed foster care placements.
82. Plaintiffs have failed to prove that unidentified professionals to be appointed by the Court are able to assess what resources and processes are necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to licensed foster care placements.
83. Plaintiffs have failed to prove the specific remedy they seek for the subclass and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the oversight inadequacy of which they complain.
Licensed Foster Care Subclass--Array
Whether:
84. Plaintiffs have failed to prove that there is a widely accepted professional standard for a placement array.
85. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and harm to any child in the Licensed Foster Care subclass and for all children in the class.
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86. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and a denial of personal security and reasonably safe living conditions for each child in the class and for all children in the class.
87. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and the occurrence of abuse or neglect to children in placed in licensed foster care.
88. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and permanency outcomes for all children placed in licensed foster care.
89. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and harm to any child in the class and to all children in the class.
90. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
91. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and the occurrence of abuse or neglect to all children placed in licensed foster care.
92. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and permanency outcomes for all children placed in licensed foster care.
93. Plaintiffs have failed to prove the magnitude of risk of harm to children in licensed foster care caused by an alleged inadequate placement array.
94. Plaintiffs have failed to objectively quantify the risk to which all children placed in licensed foster care are currently exposed caused by an alleged inadequate placement array.
95. Plaintiffs have failed to prove that the risk of harm to all children placed in licensed foster care caused by the placement array in Texas is unreasonable.
96. Plaintiffs have failed to prove that harm caused by an alleged inadequate placement array is actually imminent for any child and all children in licensed foster care.
97. Plaintiffs have failed to prove that denial of a child’s right to personal security and reasonably safe living conditions caused by an alleged inadequate placement array is actually imminent for any child and all children in licensed foster.
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98. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, an alleged inadequate placement array has caused in the past harm of any nature to children in licensed foster care.
99. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, an alleged inadequate placement array has caused in the past denial of a child’s right to personal security and reasonably safe living conditions for children placed in licensed foster care.
100. Plaintiffs have failed to prove an inadequate placement array on a statewide, regional and county basis.
101. Plaintiffs have not demonstrated that DFPS’ placement array causes all children in licensed foster care to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
102. The level of personal security a child experiences in a licensed foster care placement, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
103. Whether a child in a licensed placement is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including his or her specific placement.
104. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
105. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to the placement array for any and all children in licensed placements shocks the conscience.
106. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference to any and all children in licensed placements with respect to the placement array.
107. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference to any and all children in licensed placements.
108. Far from acting with deliberate indifference, Defendants engage in a broad spectrum of conduct to mitigate a wide variety of risks associated with children in conservatorship, including risks associated with placements.
109. Plaintiffs have failed to prove a placement array that would be adequate.
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110. Plaintiffs have failed to prove what risk of harm associated with a placement array would be reasonable.
111. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether a placement array results in a reasonable risk of harm to children in licensed foster care, both as to any child in the class and to all children in the entire class.
112. Plaintiffs have failed to prove the aggregate need of all children in the subclass for additional placements that will provide the necessary number, geographic distribution, and array of placement options for all children in the subclass.
113. Plaintiffs have failed to prove that unidentified professionals to be appointed by the Court are able to assess the aggregate need of all children in the subclass for additional placements that will provide the necessary number, geographic distribution, and array of placement options for all children in the subclass.
114. Plaintiffs have failed to prove the specific remedy they seek for the subclass and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the oversight inadequacy of which they complain.
Basic in GRO Subclass Whether:
115. Plaintiffs have failed to prove a correlation between every placement of a Basic service level child in a GRO and harm to the child.
116. Plaintiffs have failed to prove that every placement of a Basic service level child in a GRO denies personal security and reasonably safe living conditions for the child.
117. Plaintiffs have failed to prove a correlation between every placement of a Basic service level child in a GRO and the occurrence of abuse or neglect to the child.
118. Plaintiffs have failed to prove a correlation between every placement of a Basic service level child in a GRO and permanency outcomes.
119. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and harm to the child.
120. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and a denial of personal security and reasonably safe living conditions for the child.
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121. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and the occurrence of abuse or neglect to the child.
122. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and permanency outcomes.
123. Plaintiffs have failed to prove the magnitude of risk of harm to every Basic service level child placed in a GRO.
124. Plaintiffs have failed to objectively quantify the risk to which every Basic service level child is subjected by placement in a GRO.
125. Plaintiffs have failed to prove that the risk of harm to every Basic service level child placed in a GRO is unreasonable.
126. Plaintiffs have failed to prove that harm is actually imminent for every Basic service level child placed in a GRO.
127. Plaintiffs have failed to prove that denial of a right to personal security and reasonably safe living conditions is imminent for every Basic service level child placed in a GRO.
128. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a Basic service level child in a GRO in the past caused harm of any nature to the child.
129. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a Basic service level child in a GRO in the past caused a denial of the child’s right to personal security and reasonably safe living conditions.
130. Plaintiffs have failed to prove that placement of any Basic service level child in any GRO subjects the child to a risk of harm without regard to the individual characteristics and needs of that particular child.
131. Plaintiffs have failed to prove that placement of any Basic service level child in any GRO subjects the child to a risk of harm without regard to the individual characteristics, qualities and capabilities of the particular GRO where the child is placed.
132. Plaintiffs have not demonstrated that placement of Basic service level children in GROs causes all such children to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
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133. The level of personal security a child experiences in a GRO, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
134. Whether a Basic services level child placed in a GRO is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including the particular GRO placement.
135. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
136. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to all placements of Basic services level children in GROs shocks the conscience.
137. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference with respect to all placements of Basic services level children in GROs.
138. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference with respect to all placements of Basic services level children in GROs.
139. Far from acting with deliberate indifference, Defendants engage in a broad spectrum of conduct to mitigate a wide variety of risks associated with children in conservatorship, including risks associated with the placement of Basic service level children in GROs.
Foster Group Home Subclass Whether:
140. Plaintiffs have failed to prove that there is a widely accepted professional standard applicable to Foster Group Homes as they are operated in Texas.
141. Plaintiffs have failed to prove a correlation between every placement of a child in a Foster Group Home and harm to the child.
142. Plaintiffs have failed to prove that every placement of a child in a Foster Group Home denies personal security and reasonably safe living conditions for the child.
143. Plaintiffs have failed to prove a correlation between every placement of a child in a Foster Group Home and the occurrence of abuse or neglect to the child.
144. Plaintiffs have failed to prove a correlation between every placement of a child in a Foster Group Home and permanency outcomes.
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145. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and harm to the child.
146. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and a denial of personal security and reasonably safe living conditions for the child.
147. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and the occurrence of abuse or neglect to the child.
148. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and permanency outcomes.
149. Plaintiffs have failed to prove the magnitude of risk of harm to every child placed in a Foster Group Home.
150. Plaintiffs have failed to objectively quantify the risk to every child placed in a Foster Group Home.
151. Plaintiffs have failed to prove that the risk of harm to every child placed in a Foster Group Home is unreasonable.
152. Plaintiffs have failed to prove that harm is actually imminent for every child placed in a Foster Group Home.
153. Plaintiffs have failed to prove that denial of a right to personal security and reasonably safe living conditions is imminent for every child placed in a Foster Group Home.
154. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a child in a Foster Group Home in the past caused harm of any nature to the child.
155. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a child in a Foster Group Home in the past caused a denial of the child’s right to personal security and reasonably safe living conditions.
156. Plaintiffs have failed to prove that every placement of a child in a Foster Group Home subjects the child to a risk of harm without regard to the individual characteristics and needs of that particular child.
157. Plaintiffs have failed to prove that every placement of a child in a Foster Group Home subjects the child to a risk of harm without regard to the individual characteristics, qualities and capabilities of the particular Foster Group Home where the child is placed.
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158. Plaintiffs have failed to prove the level of training of all Foster Group Home parents and have failed to prove as to each and to all that such training was inadequate.
159. Plaintiffs have failed to prove the availability of on-call medical personnel at all Foster Group Home and have failed to prove as to each and to all that such availability was inadequate.
160. Plaintiffs have not demonstrated that placement of children in Foster Group Homes causes all such children to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
161. The level of personal security a child experiences in a Foster Group Home, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
162. Whether a child placed in a Foster Group Home is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including but not limited to the particular Foster Group Home, the number of children living there, and the knowledge, experience and training of the caregivers.
163. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
164. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to all placements of children in Foster Group Homes shocks the conscience.
165. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference with respect to all placements of children in Foster Group Homes.
166. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference with respect to all placements of children in Foster Group Homes.
167. Far from acting with deliberate indifference, Defendants engage in a broad spectrum of conduct to mitigate a wide variety of risks associated with children in conservatorship, including risks associated the placement of children in Foster Group Homes.
168. Plaintiffs have failed to prove the specific remedy they seek for this subclass and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the risk of harm of which they complain.
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8. AGREED PROPOSITIONS OF LAW
The parties have not reached agreement on any agreed propositions of law.
9. CONTESTED PROPOSITIONS OF LAW
a. Plaintiffs’ Position
1. Whether Defendants have violated and continue to violate Plaintiffs’ substantive due process right to be free from harm and the unreasonable risk of harm while in state custody (M.D. ex rel. Stukenberg v. Perry, 294 F.R.D. 7, 32 (S.D. Tex. 2013) (holding that “the State exercises control over children in State custody and has a commensurate duty of care to them”), petition for permission to appeal dismissed, 547 F. App’x 543 (5th Cir. 2013) (per curiam); see also Youngberg v. Romeo, 457 U.S. 307, 315-16, 323 (1982); County of Sacramento v. Lewis, 523 U.S. 833, 84647 (1998)) by failing to exercise professional judgment in the following respects:
a. maintaining excessive conservatorship worker caseloads exceeding widely accepted professional standards;
b. maintaining a placement array that is inadequate in number, geographic spread, and mix to meet the needs of children removed into DFPS foster care custody, and maintaining a licensing function that lacks (i) sufficient staffing capacity to conduct adequate oversight of licensed foster care placements and (ii) a quality assurance system capable of adequately identifying and correcting deficiencies in licensing policy and practices;
c. utilizing foster group homes that fail to incorporate widely accepted safeguards for the operation of group and congregate care facilities; and
d. utilizing general residential operations to serve children with basic level needs who can be adequately served in a foster home setting, thereby departing from the accepted standard that children are to be placed in the least restrictive, most family-like setting.
2. Whether the failure to exercise professional judgment as set forth in 1(a)-(d) results in unconstitutional harm and the unreasonable risk of harm to children in the General Class and subclasses.
b. Defendants’ Position
1. A child in the permanent managing conservatorship of DFPS has a Fourteenth Amendment substantive due process right to personal security and reasonably safe living conditions. Hernandez v. Texas Department of Protective & Regulatory Services, 380 F.3d 872, 880 (5th Cir. 2004).
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2. “To demonstrate a viable substantive due process claim, in cases involving government action, the plaintiff must show that the state acted in a manner that ‘shocks the conscience.’” Hernandez, 380 F.3d at 880, citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992); MD v. Perry, 294 F.R.D. 7, 34 (S.D.Tex. 2013)(“In this case Plaintiffs challenge policies rather than discrete executive actions, so on this test they would need to show that those policies are such that they shock the conscience.”). See, e.g., Doe v. Covington County School District, 675 F.3d 849, 867-68 (5th Cir. 2012)(en banc)(“Conduct sufficient to shock the conscience for substantive due process purposes . . . has been described as conduct that . . . ‘is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ Lewis, 523 U.S. at 846-47 & n. 8 . . . As one court has recently summarized, ‘[t]he burden to show state conduct that shocks the conscience is extremely high, requiring stunning evidence of arbitrariness and caprice that extends beyond mere violations of state law, even violations resulting from bad faith to something more egregious and more extreme.’ J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 2010)(citation and internal quotation marks omitted).”)
3. Not all deliberate indifference shocks the conscience. City of Sacramento, 523 U.S. at 850 (“Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.”)
4. Defendants accept Plaintiffs’ characterization of the issue of whether Defendants’ conduct has violated Plaintiffs’ substantive due process rights as a contested proposition of law. Defendants’ conduct is a question of fact. Whether that conduct amounts to a violation of a constitutional duty, including whether that conduct meets the applicable culpability standard, are contested propositions of law. Defendants disagree, however, with how Plaintiffs have framed these issues, both as to the scope of the duty and the culpability standard, and Defendants therefore submit their own propositions of law as set forth below.
Scope of the Duty
5. The Fourteenth Amendment substantive due process right of a child in foster care in Texas has not been extended beyond a right to personal security and reasonably safe living conditions announced in Hernandez v. Texas Department of Protective & Regulatory Services, 380 F.3d 872 (5th Cir. 2004).
The United States Supreme Court has not recognized a substantive due process right in a foster care case. The Fifth Circuit has not recognized such a right beyond that described in Hernandez. Thus, the Fourteenth Amendment substantive due process right of a child in foster care in the State of Texas does not include rights to any of the following (note—the following list is of rights that do not independently exist under the Fourteenth Amendment and is not in derogation of other undertakings and obligations DFPS undertakes with respect to
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children in its conservatorship): to safeguards that prevent the child from deteriorating either physically or psychologically, to have steps taken to prevent their physical or psychological deterioration, to permanence, to absolute safety, to well-being, to be free from frequent placement moves, to have infrequent placement moves, to a suitable placement, to placement in the least restrictive, most family-like foster care setting, to not be removed a certain distance from their home communities, to case planning, to permanency conferences, to parental and sibling visitation, to a stable placement, to an adequate number and array of placements, to be free from inappropriate placements, to conservatorship caseworkers, to caseworkers to whom a limited number of children are assigned, to limited duration of time in state custody, and to foster care services delivered in the manner described by any child welfare advocacy group, league, society or council.
6. The constitutional right likewise does not include an unlimited “right to be free from an unreasonable risk of harm” in foster care. Neither the United States Supreme Court nor the Fifth Circuit (in Hernandez or elsewhere) has recognized such a right. Defendants contend that no such right should be recognized in the present case because:
“As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decision making in this uncharted area are scarce and open-ended.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992); accord, Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990)(“Courts must resist the temptation to augment the substantive reach of the Fourteenth Amendment . . . .”).
There is no reason in the present case to expand substantive due process to include freedom from an unreasonable risk of undefined, open-ended “harm,” such as Plaintiffs seek. If Plaintiffs are indeed exposed to imminent, actionable harm (e.g., denial of a right to personal security and reasonably safe living conditions), their remedy lies in traditional injunctive relief. There would be no need to expand substantive due process and the case can be resolved on existing law. If on the other hand, Plaintiffs cannot prove imminent, actionable harm caused by the Defendants, then substantive due process should not be expanded to reach a more nebulous, open-ended notion of “harm,” and to create corresponding, expanded duties to prevent same. In this regard and with specific reference to Plaintiffs’ caseworker caseload claim in the present case, the Fifth Circuit cautioned:
For instance, it is unclear whether the Named Plaintiffs can even advance a due process claim based on a bare finding that Texas has “organized or mismanaged” DFPS improperly. See Lewis v. Casey, 518 U.S. 343, 34950 . . . (1996)(“It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the
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laws and the Constitution . . . . But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly.”
MD v. Perry, 675 F.3d 832, 841 (5th Cir. 2012). Plaintiffs’ open-ended notions of harm and corresponding expanded duties run afoul of this very admonition. The court should decline to expand substantive due process to reach what, in effect, is a claim of poor management, not conscience-shocking, actual and imminent harm.
Culpability Standard
7. To demonstrate a viable substantive due process claim, in cases involving government action, Plaintiffs must show that Defendants acted in a manner that shocks the conscience, MD v. Perry, 294 F.R.D. 7, 34 (S.D.Tex. 2013)(“In this case Plaintiffs challenge policies rather than discrete executive actions, so on this test they would need to show that those policies are such that they shock the conscience.”); Hernandez, 380 F.3d at 880, citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992); Doe v. Covington County School District, 675 F.3d 849 (5th Cir. 2012)(en banc), and amounts to deliberate indifference. Hernandez, 380 F.3d at 880.
Six months after MD v. Perry, 675 F.3d 832 (5th Cir. 2012), and based on Hernandez, the Fifth Circuit refused to apply a professional judgment standard in a foster care case:
“Hall contends that we should apply a professional judgment standard instead of the deliberate indifference standard. This court has concluded that the deliberate indifference standard is the appropriate standard for considering substantive due process claims based on foster children’s rights to personal security and reasonably safe living conditions. See Hernandez, 380 F.3d at 880. We will not disregard this established precedent. See In re Pilgrim’s Pride Corp., 690 F.3d 650, 2012 WL 3239955, at *11 (5th Cir. Aug. 10, 2012).”
Hall v. Smith, 497 Fed.Appx. 366, 377 n. 16, 2012 WL 4478437, **8 n. 16 (5th Cir., Oct. 12, 2012). See also, district court opinion, Hall v. Dixon, 2011 WL 767173, *2 (S.D. Tex, Feb 25, 2011):
Hall’s allegations failed to state a claim for violation of Jasmine’s right to safety in state-mandated foster care, the substantive violation Hall alleged under § 1983. In a previous opinion, this court identified deliberate indifference as the applicable standard of care. . . . Hall argued in her motion for reconsideration that the standard of care should be professional judgment, citing Youngberg v. Romeo, 457 U.S. 307 . . . (1982). This
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court observed that no court in the Fifth Circuit had adopted the professional judgment standard in this context. See, e.g., Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., . . . 2002 WL 31689710, at *9 (N.D. Tex. Nov. 22, 2002). A nearly unanimous en banc opinion of the Fifth Circuit also casts doubt on the continuing validity of the standard. Hare v. City of Corinth, Miss., 74 F.3d 633, 64647 (5th Cir. 1996)(en banc).”
Thus, Defendants’ contested propositions of law as to the constitutional claim are:
8. Plaintiffs have not demonstrated that DFPS’ conservatorship caseworker caseloads cause all children in PMC to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct shocks the conscience.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct amounts to deliberate indifference.
9. Plaintiffs have not demonstrated that inadequate regulatory oversight by DFPS causes all children in PMC who are in licensed facilities to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct shocks the conscience.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct amounts to deliberate indifference.
10. Plaintiffs have not demonstrated that DFPS’ placement array causes all children in PMC who are in licensed facilities to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct shocks the conscience.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct amounts to deliberate indifference.
11. Plaintiffs have not demonstrated that DFPS causes all Basic Service Level PMC children placed in a General Residential Operation to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct shocks the conscience.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct amounts to deliberate indifference.
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12. Plaintiffs have not demonstrated that DFPS causes all children placed in Foster Group Homes to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions resulting from lack of a wake staff, inadequate foster parent training, and inadequate access to medical services.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct shocks the conscience.
Plaintiffs have not demonstrated for any and each of Defendants that such conduct amounts to deliberate indifference.
Defendants’ contested propositions of law as to class certification are:
13. Plaintiffs have not demonstrated that class certification is proper for the General Class because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific.
14. Plaintiffs have not demonstrated that class certification is proper for the Licensed Foster Care Subclass because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific.
15. Plaintiffs have not demonstrated that class certification is proper for the Foster Group Home Subclass because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific.
16. Plaintiffs have not demonstrated that class certification is proper for the Basic GRO Subclass because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific.
Defendants’ contested propositions of law as to standing are:
17. Named Plaintiffs who are representatives of the General Class and all members of the General Class lack standing because their claims fail to meet the requirements of: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the standing requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);
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City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 111 (1983); James v. City of Dallas, 254 F.3d 551, 553 (5th Cir. 2001).
18. Named Plaintiffs who are representatives of the Licensed Foster Care Subclass and all members of that class lack standing because their claims fail to meet the requirements of: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the standing requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 111 (1983); James v. City of Dallas, 254 F.3d 551, 553 (5th Cir. 2001).
19. Named Plaintiffs who are representatives of the Foster Group Home Subclass and all members of that class lack standing because their claims fail to meet the requirements of: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 111 (1983); James v. City of Dallas, 254 F.3d 551, 553 (5th Cir. 2001).
20. Named Plaintiffs who are representatives of the Basic GRO Subclass and all members of that class lack standing because their claims fail to meet the requirements of: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the standing requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 111 (1983); James v. City of Dallas, 254 F.3d 551, 553 (5th Cir. 2001).
Defendants’ contested propositions of law as to abstention are:
21. Because the Middlesex elements for Younger abstention are present here, the Court will abstain from reviewing Plaintiffs’ claims. Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Texas Ass’n of Business v. Earle, 388 F.3d 515, 519 (5th Cir. 2004).
22. Because the relief Plaintiffs seek will interfere with the ongoing efforts of the State to create policy improving Texas’ foster care system, the Court will abstain from reviewing Plaintiffs’ claims under the Burford abstention doctrine. Burford v. Sun Oil Co., 310 U.S. 315 (1943); Baran v. Port of Beaumont Navigation Dist. of Jefferson City, 57 F.3d 436 (5th Cir. 1995).
23. To the extent not covered above, Defendants’ contested propositions of law include each issue covered by their proposed conclusions of law.
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10. EXHIBITS Please see Attachment 1 and Attachment 2, collecting two copies of Plaintiffs’ exhibit list
and Attachment 3 and Attachment 4, collecting two copies of Defendants’ exhibit list.
11. WITNESSES Please see Attachment 5, collecting Plaintiffs’ witness list and expert qualifications and
Attachment 6, collecting Defendants’ witness list and expert qualifications. The parties may call each of the persons listed on the witness lists attached. If other
witnesses to be called at the trial become known, their names, addresses, and subject of their testimony will be reported to opposing counsel in writing as soon as they are known; this does not apply to rebuttal or impeachment witnesses. 12. SETTLEMENT
According to the State, “all settlement efforts have been exhausted, the case cannot be settled, and it will have to be tried.” Plaintiffs disagree. The parties’ settlement discussions have been limited and inconclusive, and Plaintiffs remain open to a reasonable compromise in the best interests of the Class and Subclasses.
13. TRIAL a. Plaintiffs’ Position Plaintiffs estimate that they will need 8 or 9 full trial days. b. Defendants’ Position Defendants estimate that they will need 5 full trial days.
14. ATTACHMENTS Please see Attachment 7, collecting Plaintiffs’ proposed findings of fact; Attachment 8,
collecting Defendants’ proposed findings of fact; Attachment 9, collecting Plaintiffs’
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conclusions of law; Attachment 10, collecting Defendants’ conclusions of law; Attachment 11, collecting Plaintiffs’ deposition designations; and Attachment 12, collecting Defendants’ deposition counter-designations.

Date: _______________________
Approved: Date: November 14, 2014 Date: November 14, 2014

_____________________________________ JANIS GRAHAM JACK UNITED STATES DISTRICT JUDGE
/s/ R. Paul Yetter ATTORNEY-IN-CHARGE, PLAINTIFFS /s/ Thomas A. Albright ATTORNEY-IN-CHARGE, DEFENDANTS

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ATTACHMENT 7

Case 2:11-cv-00084 Document 277-7 Filed in TXSD on 11/14/14 Page 2 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

M.D., by her next friend Sarah R. Stukenberg, et al., individually and on behalf of all others similarly situated,
Plaintiffs,
v.
RICK PERRY, in his official capacity as Governor of the State of Texas, et al.,
Defendants.

) ) ) ) ) ) CASE NO. 2:11-cv-00084 ) ) ) ) ) )

PLAINTIFFS’ PROPOSED FINDINGS OF FACT
A. THE DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES (“DFPS”) IN GENERAL
1. When the Child Protective Services (“CPS”) division of DFPS determines a child has been maltreated or is at risk and should not remain in his or her home, it removes the child and petitions a court for Temporary Managing Conservatorship (“TMC”) over the child.
2. If TMC is granted, DFPS takes custody of the child and attempts to achieve reunification, or, if this is not possible, place the child with a new, permanent family. TMC lasts one year unless a court orders that it be extended another six months.
3. If at the termination of TMC the child has not been reunified or placed in a new family, the child is transferred to the Permanent Managing Conservatorship (“PMC”) of the State. The child remains in the State’s PMC until he or she is adopted, custody is otherwise transferred, or he or she ages out of the system.
4. Many children coming into the PMC have suffered physical or sexual abuse and are traumatized.
5. According to DFPS policy, DFPS has four different placement options to house children in care: family foster homes, foster group homes, unverified kinship homes, and general residential operations (“GRO”), which include residential treatment centers (“RTC”).

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6. According to DFPS policy, foster family homes are traditional foster homes and contain fewer than seven children up to the age of 18 years, including biological and adopted children. They are verified and the caregivers receive training and financial support.
7. According to DFPS policy, a foster group home is a licensed operation that provides residential care for seven to 12 children up to the age of 18 years, including biological and adopted children.
8. According to DFPS standards, a GRO is a childcare facility that provides care for more than 12 children for 24 hours a day, including facilities known as children’s homes, halfway houses, residential treatment centers, emergency shelters, and therapeutic camps. They are licensed by the RCCL, subject to regulations, and receive financial support.
9. According to DFPS policy, an RTC is a type of GRO that exclusively provides care and treatment services for emotional disorders for 13 or more children up to the age of 18 years.
10. Texas also utilizes kinship placements or placements with a relative or someone who has a longstanding and significant relationship with the child or her family.
11. Kinship placements can be either verified or unverified. If they are unverified, they are only eligible for limited monetary assistance and the caregivers are not required to complete the training provided for foster parents.
12. According to DFPS policy, a child assigned to the basic service level may be characterized by transient difficulties and occasional misbehavior, acting out in response to stress, but episodes of acting out are brief, or behavior that is minimally disturbing to others, but the behavior is considered typical for the child’s age and can be corrected; or may have developmental delays or mental retardation whose characteristics include minor to moderate difficulties with conceptual, social, and practical adaptive skills.
13. According to DFPS policy, a child assigned to the moderate service level “has problems in one or more areas of functioning.” Children assigned to this service level may include a child whose characteristics include frequent non-violent, anti-social acts, occasional physical aggression, minor self-injurious actions, or difficulties that present a moderate risk of harm to self or others; a child who abuses alcohol, drugs, or other consciousness-altering substances whose characteristics include substance abuse to the extent or frequency that the child is at-risk of substantial problems or a historical diagnosis of substance abuse or dependency with a need for regular community support through groups or similar interventions; a child with developmental delays or mental
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retardation whose characteristics include moderate to substantial difficulties with conceptual, social, and practical adaptive skills to include daily living and self-care or moderate impairment in communication, cognition, or expressions of affect; or a child with primary medical or habilitative needs, whose characteristics include occasional exacerbations or intermittent interventions in relation to the diagnosed medical condition, limited daily living and self-care skills, ambulatory with assistance or daily access to on-call, skilled caregivers with demonstrated competency.
14. According to DFPS policy, a child assigned to the specialized service level has “severe problems in one or more areas of functioning.” Children assigned to this service level may include a child whose characteristics include unpredictable non-violent, anti-social acts, frequent or unpredictable physical aggression, being markedly withdrawn and isolated, major self-injurious actions to include recent suicide attempts, and difficulties that present a significant risk of harm to self or others; a child who abuses alcohol, drugs, or other consciousness-altering substances whose characteristics include severe impairment because of the substance abuse or a primary diagnosis of substance abuse or dependency; a child with developmental delays or mental retardation whose characteristics include severely impaired conceptual, social, and practical adaptive skills to include daily living and self-care, severe impairment in communication, cognition, or expressions of affect, lack of motivation or the inability to complete selfcare activities or participate in social activities, inability to respond appropriately to an emergency, or multiple physical disabilities including sensory impairments.
15. According to DFPS policy, a child assigned to the intense service level “has severe problems in one or more areas of functioning that present an imminent and critical danger of harm to self or others.” Children assigned to this service level may include a child whose characteristics include extreme physical aggression that causes harm, recurring major self-injurious actions to include serious suicide attempts, other difficulties that present a critical risk of harm to self or others, or severely impaired reality testing, communication skills, cognitive, affect, or personal hygiene; a child who abuses alcohol, drugs, or other consciousness-altering substances whose characteristics include a primary diagnosis of substance dependency in addition to being extremely aggressive or self-destructive to the point of causing harm; a child with developmental delays or mental retardation whose characteristics include impairments so severe in conceptual, social, and practical adaptive skills that the child’s ability to actively participate in the program is limited and requires constant one-to-one supervision for the safety of self or others or a consistent inability to cooperate in self-care while requiring constant one-to-one supervision for the safety of self or others; or a child with primary medical or habilitative needs that present an imminent and critical medical risk whose characteristics include frequent acute exacerbations and chronic, intensive interventions in relation to the diagnosed medical
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condition, inability to perform daily living or self-care skills, or medical supervision, 24-hour on-site, to sustain life support.
B. CLASS DEFINITIONS
16. The General Class consists of all children now, or in the future, in the Permanent Managing Conservatorship (“PMC”) of the State of Texas.
17. The Licensed Foster Care Subclass consists of all members of the General Class who are now or will be in a licensed or verified foster care placement, excluding verified kinship placements.
18. The Foster Group Home Subclass consists of all members of the General Class who are now or will be in a foster group home.
19. The Basic Care GRO Subclass consists of all members of the General Class who are now or will be in a GRO and who are now or will be receiving solely non-emergency, basic child care services.
C. GENERAL CLASS
20. By the State’s own admission, high caseloads are an ongoing problem that impacts all children in care, including those in the proposed General Class.
21. By the State’s own admission, the failure to reduce caseloads impairs the State’s ability to keep children in custody safe and causes the quality of casework to suffer.
22. By the State’s own admission, bringing caseloads down improves services to children.
23. Caseloads of conservatorship workers have been rising since 2009.
24. As Commissioner John Specia admits, average caseloads can be misleading because new caseworkers handle very few cases for the first six months, yet they are included in the averages.
25. As former Assistant Commissioner Audrey Deckinga testified, reducing caseloads was recommended by at least two advisory committees, one in 1996 and one in 2010.
26. As former Assistant Commissioner Audrey Deckinga testified, high caseloads may cause the quality of casework to suffer.
27. As former Assistant Commissioner Audrey Deckinga testified, high caseloads can be a factor that increases turnover.
28. As former Assistant Commissioner Audrey Deckinga testified, lower caseloads can greatly improve child safety.
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29. External advisory bodies and policy organizations, including the State’s own expert, Jane Burstain, in her former role as senior policy analyst with the Center for Public Policy Priorities, have found that caseloads need to be reduced to make workloads manageable and to enable workers to focus on helping and providing services to the children.
30. As Chair of the DFPS Advisory Council Christina Martin agreed, high caseloads can make it more difficult for caseworkers to do the work necessary for timely permanency for children in foster care, with the result that children might spend more time in foster care at greater cost to the state.
31. Employee exit surveys of staff who departed between March and May 2013 reveal workers leaving because of unmanageable workloads statewide.
32. The Sunset Advisory Commission May 2014 Staff Report found that caseworkers commonly mentioned lowering caseloads when asked what DPFS could do to improve retention.
33. The Stephen Group found that because of workload demands of administrative tasks, data entry, and travel requirements, no more than 26% of a caseworker’s time is actually being spent working with families and children.
34. By the State’s own admission, entry-level direct delivery positions, like conservatorship positions, experience the highest rate of turnover within the agency.
35. By the State’s own admission, the State has had a long-standing concern regarding its inability to recruit and retain high quality talent.
36. As Commissioner John Specia testified, the turnover rate within DFPS is “too high.” As Commissioner John Specia agreed, turnover for new hires in the agency is “very high.”
37. As state regional leadership testified, the number of children coming into custody is increasing, the conservatorship vacancy rates are high, and conservatorship workers leave their jobs because of workload issues.
38. By the State’s own admission, turnover rates for caseworkers are on the rise and lead to higher caseloads, less experienced caseworkers and supervisors, and impact quality casework and ultimately safety for children.
39. By the State’s own admission, turnover rates for caseworkers remain unacceptably high, with about 29% of new caseworkers leaving within their first year.
40. The Sunset Advisory Commission May 2014 Staff Report found that the negative impacts of caseworker turnover were delayed investigations, lack of continuity in 5

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providing services to families and children, lack of consistent and timely visits to children in state custody, and added workload for remaining workers, causing further turnover, and significant costs to the State in recruitment and training costs, as well as lost productivity.
41. Commissioner John Specia agreed with the findings of the Sunset Commission regarding the negative impact of caseworker turnover.
42. State administrative data as of the second quarter of SFY 2014 reveals that entry-level DFPS workers had an annualized turnover rate of 39% and substitute care caseworkers overall had an annualized turnover rate of 20.1%. The annualized turnover rate for CVS workers in SFY 2013 was 22.9%.
43. The Sunset Advisory Commission May 2014 Staff Report found that DFPS has approximately $72 million in annual turnover costs.
44. The Sunset Advisory Commission May 2014 Staff Report found that the State has higher vacancy rates, which are related to higher caseloads and higher turnover and that together they create a vicious cycle.
45. The Sunset Advisory Commission May 2014 Staff Report found that the State has difficulty reducing vacancy rates because each month DFPS hires over 200 new caseworkers while losing over 100, and one in six caseworkers leave within the first six months of employment.
46. The Sunset Advisory Commission May 2014 Staff Report found that the State’s inability to retain workers keeps the State from using all allocated positions to reduce caseloads and ultimately impacts the State’s ability to effectively carry out its mission of protecting children.
47. The Stephen Group found that 43% of new workers leave within the first two years, and estimated that DFPS could save $25 million per year if they reduced the turnover rate to 10% to 15%.
48. The Stephen Group found that CPS’ extraordinary amount of turnover is greatest amongst the caseworker staff, and that this creates a negative environment that reduces productivity and feeds more turnover.
49. The Stephen Group found that “[t]he legislature allowed Child Protective Services to hire 1,000 new caseworkers . . . but these served only to replace those lost through attrition.”
50. As the state admits, “[r]etention and turnover issues have impacted the ability of CPS to achieve full staffing during FY 2014.”
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51. As Commissioner Specia testified, it is “an issue” that DFPS has had a significant problem lowering caseloads, despite the fact that the agency has been hiring new caseworkers, because of the number of people leaving the agency.
52. According to the Child Welfare League of America’s (“CWLA”) professional standards (specifically, CWLA Standard 3.48), caseworkers in family foster care should have caseloads that range from 12 to 15 children, depending on level of services required to meet the children’s needs, in order to be able to fulfill their responsibilities.
53. The Council on Accreditation (“COA”) recommends caseloads of 8 to 15 children depending on the severity of children and families’ needs.
54. Texas state law defines “professional caseload standards” to include caseload standards established by the CWLA.
55. As Commissioner John Specia testified, he did not know the average daily caseload within DFPS on the day of his deposition.
56. Texas has not established any guidelines regarding maximum or optimum caseloads.
57. As Commissioner John Specia testified, he does not think there is any need to set a caseload standard.
58. As former Assistant Commissioner Audrey Deckinga testified, DFPS counts caseloads by stages, not by children.
59. As former Assistant Commissioner Audrey Deckinga testified, DFPS lacks maximum caseload limits for caseworkers.
60. By the State’s own admission, the State does not set caseload maximums or limits beyond which caseworkers cannot be assigned additional cases.
61. As Director of Field Colleen McCall testified, she does not look to professional standards regarding foster care caseloads in managing the workloads of her staff.
62. As Director of Field Colleen McCall testified, her staff work quite a bit of overtime, yet she does not analyze how much in order to see if their workloads prevent them from performing critical job responsibilities.
63. As Director of Field Colleen McCall testified, she does not review data on caseload ranges, and when her caseworkers have caseloads higher than 50, she just expects local supervisors to find ways to make sure all the tasks are getting done.
64. As Director of Field Colleen McCall testified, she does not expect regional leadership to review overtime data.
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65. As the state admits, largely because of turnover, overtime costs increased by 65% from FY 2012 to FY 2013 and the cost of increased overtime contributed to a budget shortfall.
66. By the State’s own admission, conservatorship caseworkers are responsible for visiting the child; ensuring that the child is safe; ensuring that the child’s placement is appropriate; coordinating and following court orders; coordinating medical visits, dental visits and sibling visits; following the visitation plan of the court; updating educational information; updating placement log information; creating, reviewing, and updating the child’s plan of service; and permanency planning for the child.
67. As state regional leadership testified, conservatorship workers are responsible for ensuring the safety, well-being and permanency of children assigned to them, including ensuring that children are placed in the most family-like setting that is suitable to their needs; ensuring that the children’s medical, dental, and psychological needs are met; visiting their assigned children; ensuring visits take place between siblings not placed together, and between children and their biological parents; ensuring that those children achieve permanency, and that their needs are met in their placement.
68. The Sunset Advisory Commission May 2014 Staff Report found that Child Protective Services caseworkers are “the backbone of the State’s effort to protect children,” and that they “make life-and-death decisions every day.”
69. The Sunset Advisory Commission May 2014 Staff Report found that Child Protective Services caseworkers contend with difficult working conditions, high workloads, and low pay.
70. By the State’s own admission, this study does not capture increased areas of conservatorship responsibilities that have been added since 2010.
71. The Sunset Advisory Commission May 2014 Staff Report found that the State bases its target caseload and caseworker performance requirements on a workload time study from 2004, which does not reflect the current workload due to legislative and policy changes.
72. The Casey Family Programs April 2014 audit of DFPS found that the single most important improvement any system can make is to ensure it has a well-trained workforce with workloads that meet national standards.
73. As the State admits, the increase in caseload per worker since SFY 2009 has made it “difficult for Conservatorship caseworkers to help children in the state’s conservatorship return home or be adopted timely.
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74. The Sunset Advisory Commission May 2014 Staff Report found that more than 55% of CPS caseworkers responding to Sunset’s survey indicated they do not have adequate time during the workday to successfully do their job. More than half responded that they did not think the agency’s expectations for their job performance are reasonable.
75. The 2010 Texas Appleseed report “Improving the Lives of Children in Long-Term Foster Care: The Role of Texas’ Courts and Legal System,” commissioned by the Supreme Court of Texas Permanency Judicial Commission for Children, Youth, and Families, found that caseworker turnover makes it easy for the child’s needs to go overlooked and for essential services and support for the child to fall through the cracks.
76. Judges interviewed for the 2010 Texas Appleseed report “Improving the Lives of Children in Long-Term Foster Care: The Role of Texas’ Courts and Legal System,” commissioned by the Supreme Court of Texas Permanency Judicial Commission for Children, Youth, and Families, “almost invariably” acknowledged that “the high turnover of CPS caseworkers means that the CPS representative in court at a given [permanency] hearing is rarely sufficiently knowledgeable about the child to conduct a productive hearing.”
77. Interviews conducted for the 2010 Texas Appleseed report “Improving the Lives of Children in Long-Term Foster Care: The Role of Texas’ Courts and Legal System,” commissioned by the Supreme Court of Texas Permanency Judicial Commission for Children, Youth, and Families, revealed specific complaints about “overworked caseworkers [that] addressed every facet of their job[s],” including failure to file court reports on time, delays in adoptions and TPRs, perfunctory monthly home visits, and “lack of substantive contact” with children that “limits the depth of any relationship and understanding caseworkers may develop with their foster children.”
78. As the state admits, additional workers are needed to help the agency continue to make monthly face-to-face contact with children.
79. DFPS has a process of using so-called “I See You” workers for children placed outside their home region.
80. The Stephen Group found that the very limited time that staff spends with families and children not only means that families are poorly served, but also undermines morale, which results in higher turnover.
81. DFPS policy requires that it must update the service plan for PMC children with a basic service level at least every six months.
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82. DFPS policy requires that it must update the service plan for a PMC child with a moderate, specialized, or intense service level at least every three months.
83. As state regional leadership testified, reviewing and updating case plans is vital for the children because it ensures that services are being provided to meet the needs of the children; to ensure progress towards permanency is being made; and to promote the children’s safety, permanency, and well-being.
84. As state regional leadership testified, they did not know that policy requires case plans to be reviewed and updated more frequently for children with elevated needs, and they do not track their regions’ compliance with policy.
85. As Assistant Commissioner for CPS Lisa Black testified, case planning is important for permanence, and it is important for case plans to be developed and reviewed in a timely manner.
86. As Director of Field Colleen McCall stated in a 2012 memo to the Commissioner, the failure to timely update case plans was because of high caseloads.
87. As state regional leadership testified, permanency planning meetings are essential for ensuring that an appropriate permanency goal is assigned and progress toward permanency is being made.
88. As state regional leadership testified, they did not know when permanency planning meetings were required and they do not track data on their regions’ performance with respect to permanency planning meetings.
89. Unless a child is in a placement that DFPS intends to be permanent, DFPS policy states that it should hold a permanency conference for the child within three months of being granted PMC over the child.
90. The Child Welfare League of America (“CWLA”) Standard 0.13 provides that foster care is meant to be temporary, and permanency plans should be made concurrently.
91. Federal DHHS guidelines provide that substitute care should be temporary, with a primary goal of reunification, and if that is not possible, the child welfare system must find another appropriate long-term placement.
92. According to DFPS policy, “Another Planned Permanent Living Arrangement (APPLA) is the least preferred permanency goal. APPLA should be the youth’s primary permanency goal only when a youth is 16 and above and where there is a compelling justification for why none of the other goals are in the youth’s best interest.”
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93. As state regional leadership testified, the visits between children and their parents are very important to solidifying their bond, are a critical piece of permanency planning, and can make reunification more likely.
94. As Director of Field Colleen McCall testified, visits with parents can increase the chances that a child will be reunified.
95. DFPS Policy requires visitation between children with a reunification goal and their parents while the children are in TMC but does not require it for children in PMC.
96. DFPS policy provides that reunification is the preferred permanency option whenever possible and makes clear that it is the permanency goal to be explored before all others.
97. As state regional leadership testified, they were unaware of the specifics of DFPS policy regarding sibling visitation.
98. DFPS policy requires that for siblings in custody that are placed apart from each other, visits should occur at least once a month unless visits are not in the best interests of the children.
99. Casey Family Programs’ April 2014 Assessment of Foster Care Lengths of Stay and Permanency Outcomes in Harris County, Texas, A Report to the Texas Department of Family and Protective Services found that “[n]umerous transitions in caseworker assignments disrupt momentum toward permanency by forcing children/youth and their families to ‘start over’ repeatedly with new caseworkers. Data provided by DFPS indicate a turnover rate of 26.1% among DFPS-CPS caseworkers during 2013, with a position vacancy rate of 9.7% (more than 75 vacant positions) at year’s end.”
100. According to Casey Family Programs’ April 2014 Assessment of Foster Care Lengths of Stay and Permanency Outcomes in Harris County, Texas, A Report to the Texas Department of Family and Protective Services, the project team requested data on workforce-related items “[b]ecause caseloads, workforce turnover and other workforce factors hold potential to significantly affect the quality of casework and case outcomes, including lengths of stay in care and timely transitions to permanency for Harris County children and youth . . . .”
101. In a document responding to the Sunset Commission Report findings, Texas CASA recommended that DFPS “use every resource and technique available to expedite appropriate, permanent placements for children and youth in PMC,” including more frequent permanency conferences.
102. As the State admits, youth who grow up in foster care without permanent families and community connections are more likely to live in poverty, be unemployed, become
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homeless, have untreated serious medical and mental health issues, and become involved in the criminal justice system.
103. As the State admits, more must be done to reduce the length of time before a child is reunified or goes to a permanent family.
104. State administrative data reveals that, as of the end of June 30, 2014, 2,709 PMC children, or 23.12% of all PMC children, had been in conservatorship for four or more years.
105. State administrative data reveals that according to DFPS data, for PMC children who emancipated in FY 2014 as of February 7, 2014, the median length of service was 53.5 months, or approximately four and a half years.
106. State administrative data reveals that at the end of May 2014, 61.59% of the children in the State’s PMC, or 7,184 children, had a permanency goal of adoption but were still waiting for an adoptive home.
107. As leadership admitted, caseloads impact the poor performance on adoption because the work involved in finalizing adoption is time-sensitive and requires having the time to build a relationship with potential adoptive parents and having the time to review studies for families that are interested.
108. As Director of Field Colleen McCall testified, high caseloads can be an element that impedes children’s placements into permanent families because they cause caseworkers to have less time to fulfill their duties. As CPS Director of Permanency and Conservatorship Debra Emerson agreed, in some cases caseworker burnout and turnover can impede children’s placements into permanent families.
109. According to the 2010 Texas Appleseed report “Improving the Lives of Children in Long-Term Foster Care: The Role of Texas’ Courts and Legal System,” commissioned by the Supreme Court of Texas Permanency Judicial Commission for Children, Youth, and Families:
 Too many children get stuck in the foster care system, spending over three years in long-term foster care (PMC) without a permanent home.
 “Research shows that children who spend three or more years in long-term foster care,” defined as PMC, are more likely to age out of the foster care system at 18, unprepared for adult living.
 Within Texas there is a lack of urgency to find permanent homes for children in PMC, and this lack of urgency is the most pressing problem.
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 Judges interviewed reported that CPS caseworkers and others were often unprepared for six-month permanency hearings for PMC children, contributing to a lack of “real progress” towards permanency.
 Judges interviewed reported that placement review hearings are too often acting only as a status update on the child as opposed to a means of ensuring that all necessary steps are being taken to move the child into a safe, permanent home.
 Studies have shown that caseworker turnover correlates to a reduced likelihood of a child’s being placed in a safe, permanent home.
 Once a child enters PMC, the attention paid to the child’s case diminishes drastically. There is often a sense that the ‘clock stops ticking’ when the child enters PMC.
 CPS’ crushing workload and the high level of burnout and turnover makes it impossible for workers to take responsibility for how the children on their caseloads are faring, and as a result, the critical needs of a child often fall through the cracks of the system.
110. Pursuant to federal law and agency policy, DFPS must place each child in a safe setting that is the least restrictive (most family-like) and most appropriate setting available, in close proximity to the home of the child’s parents when the child’s permanency goal is reunification, consistent with the best interest and special needs of the child.
111. The Texas Administrative Code requires that children be placed in the least restrictive, most family-like setting available, and in proximity to the biological parents’ home when the goal is reunification.
112. The CWLA Standard 2.29 requires that children be placed in foster family homes that best meet the child’s specific needs and that are as close to home and community resources as possible.
113. As cited in a DFPS document, in 2010, inadequate efforts were being made to identify appropriate placements for children; to limit placement moves; and to adequately assess, train, and support foster and adoptive families.
114. State administrative data reveals that, as of June 30, 2014, 28.85% of the children in the State’s PMC, or 3,381 children, had been moved through five or more placements while in custody.
115. As reflected in a 2010 DFPS document, children who age out of foster care have had, on average, 10 placement moves.
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116. State administrative data reveals that the average number of placements for all PMC children was 3.9 placements.
117. State administrative data reveals that, as of June 30, 2014, the 1,132 PMC children placed in residential treatment facilities had an average of 7.5 placements, and the 124 PMC children in emergency shelter placements had an average of 7.8 placements.
118. State administrative data reveals that almost eight percent of the children in the State’s PMC, or 884 children, had been in ten or more placements.
119. In a document responding to the Sunset Commission Report findings, Texas CASA noted that placement instability has negative impacts on “numerous indicators of child well-being, particularly educational progress.”
D. LICENSED FOSTER CARE SUBCLASS
a. Insufficient Licensing Monitoring and Oversight
120. The CCL, of which Residential Child Care Licensing (“RCCL”) is a part, has four general responsibilities, according to DFPS Policy. First, it must regulate “all childcare operations and child-placing agencies to protect the health, safety, and well-being of children in care.” Second, it must “[e]stablish and monitor operations and agencies for compliance with licensing standards, rules, and law.” Third, it keeps parents and the public informed about child care and the histories of various facilities and their compliance with minimum standards of care. Fourth, it provides technical assistance to providers to help them meet licensing standards, rules, and laws Residential Child Care Licensing (“RCCL”) is responsible for regulating all residential childcare operations and child-placing agencies.
121. Each Program Manager oversees a number of supervisory units. Most are made up either solely of investigators, overseen by an Investigation Supervisor, who are responsible for conducting Abuse / Neglect Investigations, or inspectors, overseen by a Monitoring Supervisor, who are responsible for conducting most inspection and monitoring activities, as well as non-Abuse/Neglect Investigations. Some are “generalist” units, which contain a mix of investigators and inspectors.
122. Each of the three Program Managers also oversees a Training/Program Improvement Specialist, a Certification Specialist, and a Risk Analyst.
123. As of August 31, 2013, 60 percent of the children in substitute care in 2013—a total of 16,676 children—were in residential placements licensed by RCCL, and RCCL was responsible for overseeing a total of 10,285 licensed operations.
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124. PMU was headed by Division Administrator William Wright from September 2013 to September 2014.
125. The PMU Division Administrator position reports to the Assistant Commissioner for CCL, Paul Morris.
126. DFPS policy states that licensing staff in Texas investigate complaints of maltreatment and reports of licensing violations.
127. The Licensing Policy and Procedure Handbook defines reports of Abuse or Neglect as reports alleging that “a child in care of an operation was harmed or may be harmed by an act or omission by a person working under the auspices of a child care operation. Such harm must meet the definitions of abuse or neglect, as described in the Texas Family Code and Texas Administrative Code.”
128. The Licensing Policy and Procedure Handbook defines reports of non-Abuse or Neglect as reports alleging that “statute, administrative rules, or minimum standards have been or are in violation. No allegation of abuse or neglect is involved.”
129. According to deposition testimony, Non-Abuse / Neglect Investigations are also referred to as “Standards Investigations.”
130. The Licensing Policy and Procedure Handbook requires that all intake reports are evaluated to determine the type of investigation and priority.
131. The Licensing Policy and Procedure Handbook provides that Abuse / Neglect Investigations should be classified as Priority 1 if the report concerns the death of a child, or an immediate threat of serious physical or emotional harm or death of a child caused by abuse or neglect. Non-Abuse / Neglect Investigations should be classified as Priority 1 if the report concerns a violation of the law or minimum standards that pose an immediate risk of serious harm to children in care.
132. The Licensing Policy and Procedure Handbook provides that Abuse / Neglect Investigations should be classified as Priority 2 if the report concerns an allegation of abuse or neglect and the child is currently safe, or the child is not at immediate risk of serious physical or emotional harm as a result of the abuse or neglect. Non-Abuse / Neglect Investigations should be classified as Priority 2 if the report does not contain an allegation of abuse or neglect, but does concern (a) inappropriate discipline; (b) inappropriate physical restraint; (c) a serious injury; (d) a serious accidental injury or medical incident; (e) a significant supervision problem; (g) a person is present at the operation whose criminal or Central Registry history poses a risk of harm to a child; or (h) an alleged illegal operation with a history of operating illegally, was previously listed, licensed, or registered and closed voluntarily or by adverse action, is caring for
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more than 12 children. The term serious indicates that the alleged violation has resulted or may result in impairment to the child’s overall health or well-being.
133. The Licensing Policy and Procedure Handbook provides that an investigation should be classified as a Priority 3 if it concerns if a non-abuse or neglect report that concerns (a) an illegal operation with no other allegations; (b) a violation of law, administrative rules, or minimum standards that poses a low risk of harm to children and an inspection is required; (c) a sex offender’s address within proximity to the operation; or (d) any injury or medical incident that does not rise to the level of a Priority 2 investigation.
134. The Licensing Policy and Procedure Handbook requires that Priority 1 and 2 investigations must be completed within 30 days and Priority 3 investigations must be completed within 60 days. An investigation is “complete” when it is submitted to the supervisor for approval. The policy further requires that a supervisor or secondary approver review the Abuse/Neglect investigation no later than 15 days after it is submitted, and either review or reject the investigation. An investigation is “closed” when it is approved by the supervisor or secondary approver. DFPS performance targets call for compliance with these time frames in at least 95 percent of cases.
135. The Licensing Policy and Procedure Handbook requires that if the time frames for completing an investigation cannot be met, an investigator must obtain supervisory approval to extend the time frames.
136. The Licensing Policy and Procedure Handbook requires that when RCCL investigates an allegation of abuse or neglect, the investigator “begins assessing the risk to children at the beginning of the investigation and continues to assess risk throughout the duration of the investigation.” The policy defines a risk assessment as a staffing between the investigator and the inspector to review the operation’s characteristics, compliance history, and investigation history. The purpose of such a risk assessment is, in part, to “determine the overall safety of children and the likelihood of abuse or neglect in the home or operation.”
137. The Licensing Policy and Procedure Handbook requires that an investigator assess the immediate safety of children involved in an investigation, as well as the safety of other children being cared for by the operation. If the investigator identifies a threat to a child’s safety, he or she must take steps to ensure the child’s safety by requesting that the operation implement a safety plan.
138. The Licensing Policy and Procedure Handbook sets forth the Enforcement Actions that Licensing may take with regard to an operation based on the risk presented to children in care. These actions, in rough order of severity, include: follow-up without inspection; follow-up with inspection; provider plan of action; warning letter and follow-up with inspection; expedited monitoring inspection; monetary, or
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administrative, penalties; evaluation; and probation. More severe enforcement actions, known as “adverse actions,” include adverse amendments, which involve imposing additional restrictions or conditions on an operation; involuntary suspension; and revocation of an operation’s permit.
139. The Licensing Policy and Procedure Handbook requires that in cases of alleged abuse and neglect, all alleged victims and all children directly involved in the incident must be observed and interviewed, and when possible, the investigator should do this in person. The investigator must interview alleged victims as soon as possible, but no later than five days after receiving the intake report for a Priority 1 (P1) investigation and seven days after receiving the intake report for a Priority 2 (P2) investigation. If the intake report indicates that the alleged victim has serious injuries, the investigator must observe the child sooner.
140. The Licensing Policy and Procedure Handbook requires that the investigator must interview, whenever possible: all alleged perpetrators, if the investigation is about abuse or neglect; all adults directly involved in the incident; other adults who may have witnessed the incident; other adults who may have knowledge of the incident; other adults who may be able to provide information regarding the type of care and supervision provided at the operation; other adults who may be able to provide information regarding the behaviors, level of functioning, and emotional state of any children involved in the investigation; and other adults who may be able to provide information regarding the child’s previous involvement in abuse or neglect investigations.
141. The Licensing Policy and Procedure Handbook requires that for Priority 1 or Priority 2 investigations, an investigator must conduct an unannounced inspection no later than 15 days after the intake report was received, for Priority 3 the unannounced inspection must be conducted no later than 30 days after the intake report was received.
142. DFPS is required by law to review and analyze intake reports that include allegations associated with a higher risk of harm to children.
143. Accepted standards in the field recognize that one key structural component of highperformance organizations is the development of a staffing plan that takes into account effective workloads and supervisory/managerial span of control.
144. DFPS has not established target workloads for RCCL inspectors or investigators, and no one within RCCL monitors aggregate RCCL workload data.
145. Although time measurement studies related to RCCL were conducted in 2004 and 2006, RCCL does not utilize any data concerning the amount of time necessary for its inspectors and investigators to satisfy all responsibilities.
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146. With the exception of informal discussions amongst RCCL staff, there is no system for flagging workloads that are too high.
147. The aggregate data available demonstrates that RCCL is understaffed. While DFPS has budgeted for approximately 110 to 115 RCCL caseworkers (investigators and inspectors) between September and March of 2014, the average number of filled RCCL caseworker positions was 88.5.
148. Since 2011, the number of filled RCCL caseworker positions has steadily declined from an average of 123.4 in Full Time Equivalents in FY 2011 to an average of 89 Full Time Equivalents in the first seven months of FY 2014.
149. A 2014 RCCL budget request notes that an increase in the number of serious incidents in residential child care operations has resulted in an increase in investigations for both inspectors and investigators.
150. Standards promulgated by the Child Welfare League of America provide that every agency should conduct a workload analysis to determine the appropriate workload standards for its child protective services staff. Absent such an analysis, Initial Assessment (investigation) caseloads should involve 12 active cases per month. Standards promulgated by the Council on Accreditation provide that, generally, caseloads should not exceed 15 investigations.
151. State data shows the average monthly caseload per RCCL investigator was 18.0 in the period between September 2013 and March 2014.
152. State data also shows that the rate of turnover among RCCL caseworkers increased from 8.5% in FY 2011 to 11.6% in FY 2013.
153. As RCCL managers acknowledge, vacancies can impact workloads and the program has experienced high turnover among staff and long vacancy rates.
154. Accepted standards in the field recognize that a key structural component of highperformance organizations is a formal continuous quality improvement system with clear performance benchmarks that are monitored systemically through planned information gathering methods and necessary follow-up actions.
155. The Performance Management Unit (“PMU”) is intended to fulfill the requirement set forth in 42.0211(C) of the Texas Human Resource Code that the child care licensing division has a performance management unit with duties that include conducting quality assurance reviews of randomly selected monitoring and investigation reports to ensure compliance with all relevant laws, rules, and agency policies.
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156. When PMU conducts an assessment, it does not have the authority to mandate that recommendations or corrective actions be implemented.
157. Historically, PMU has not had any formal system for tracking whether the findings of its performance assessments are meaningfully addressed.
158. During the pendency of this proceeding, PMU deteriorated. From approximately January to September of 2013, PMU operated without a Division Administrator. PMU staff members were reassigned to temporary supervisors who sat in other CCL units and performed different functions.
159. As William Wright, then-Division Administrator for PMU, testified in July 2014, over the last two years, the number of targeted casereadings performed by PMU declined from about six to eight per year to about four per year.
160. PMU used to summarize the results of targeted casereadings and risk analyses in an annual CCL Data & Trend Assessment Report, which compiled and addressed the findings and recommendations made throughout the year.
161. PMU no longer produces this report. No CCL Data & Trend Assessment was published in 2013, and no such report will be prepared in 2014.
162. The PMU recommendation tracking log is not shared with anyone outside of PMU.
163. PMU has no authority to mandate that its recommendations be implemented or to mandate any other form of follow-up.
164. There is no formal process in place within RCCL to identify issues to be referred to PMU.
165. There is no formal process within RCCL for considering PMU recommendations and whether to implement them.
166. There is no designated person within CCL who determines whether to implement PMU recommendations.
167. There are no formal RCCL reports or documentation associated with the implementation of PMU recommendations.
168. PMU issued three targeted casereading reports pertaining to RCCL in the past 12 months: a January 2014 report related to Unable to Determine dispositions, and two 2013 reports related to assigning priority intakes.
169. As RCCL Director Darla Jean Shaw testified, she distributed the two 2013 reports to her Program Managers but did not issue specific directives, and did not ask for any
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specific feedback to ensure that the recommendations were implemented. RCCL Program Managers did not recall receiving these reports.
170. DFPS has failed to establish clear performance benchmarks and information gathering methods necessary to ensure the quality of RCCL practice in numerous areas – including the quality of inspections and technical assistance.
171. DFPS fails to collect aggregate data on the level of compliance with numerous RCCL policy requirements intended to ensure the safety of children in care.
172. RCCL is not able to track how frequently abuse or neglect investigations are rejected by supervisors and secondary approvers.
173. DFPS does not track instances of child-on-child abuse in the aggregate.
174. As William Wright testified, the issue of child-on-child abuse has been off the PMU radar during his tenure with the unit.
175. As RCCL Director Darla Jean Shaw testified, RCCL has a system for coordinating with CPS when an abuse/neglect investigation is opened in relation to alleged child on child abuse. However, this system does not apply to child-on-child intakes classified as non abuse/neglect.
176. RCCL Director Darla Jean Shaw is not aware of any system within RCCL specifically designed to ensure that serious incident reports involving child-on-child abuse are properly classified as an abuse/neglect investigation or a Non-Abuse/Neglect investigation.
177. The requirement that a supervisor or secondary reviewer approve an Abuse/Neglect investigation prior to closure is intended in part to ensure the accuracy of the initial disposition. RCCL managers admit that it is important that this determination is made quickly.
178. RCCL managers admit that they do not take steps to ensure Abuse/Neglect investigations are rejected or approved within 15 days and that they are not aware of the current rate of compliance with this policy requirement.
179. Aggregate data produced by DFPS shows that RCCL fails to complete and close Abuse/Neglect investigations within the time frames required by policy. During the period from July 1, 2013 to June 30, 2014, 78.1% of Priority 1 investigations and 82.8% of Priority 2 investigations were completed timely—meaning that they were submitted by the investigator for supervisory review within 30 days of the date the investigation was received, unless there was an extension involved in the case. Only
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77% of Priority 1 and 2 Abuse/Neglect investigations were timely approved by the supervisor.
180. Additional DFPS data shows that the percent of Abuse/Neglect investigations that are closed timely has declined since FY 2010.
181. Reviews performed by PMU and RCCL in the first half of 2014 concluded that a significant percentage of RCCL investigations resulted in an inappropriate disposition.
182. A 2014 PMU review of physical abuse investigations found that more than half of investigations conducted during the period studied received a disposition of “Unable to Determine” (UTD). Of those, 64.6% were incorrect. In many of those cases, there was not an adequate investigation prior to the UTD disposition. Additional investigations had received erroneous “Reason to Believe” or “Ruled Out” dispositions.
183. Currently, the only identified way to evaluate compliance with the requirement that safety is immediately assessed in Abuse/Neglect investigations is the casereading process. RCCL supervisors are expected to conduct these casereadings for 20 cases per worker per year in order to provide feedback to the worker. RCCL managers admit that the casereadings are not regularly used to identify training needs or larger trends or patterns with regard to RCCL practice.
184. In a May 2014 Report, the Sunset Advisory Commission found that the State’s traditional approach to enforcing child care licensing regulations has been to pursue non-monetary sanctions before imposing administrative penalties.
185. The Sunset Advisory Commission found that this approach dampens enforcement efforts in favor of an extensive collaborative approach and that the relaxed regulatory environment can be seen in a high incidence of repeat violations.
186. The Sunset Advisory Commission found that DFPS has taken only four adverse actions against residential child care facilities in the last five years. CCL has never used its administrative penalty authority against a residential operation.
187. The Sunset Advisory Commission found that in FY 2013, 31% of residential operations had repeat violations of the minimum standards or law. Most repeat violations occurred on the highest-risk standards, mostly associated with criminal history check requirements.
188. The Sunset Advisory Commission found that two of the most commonly violated standards in residential operations in FY 2013 were that a residential care operation failed to request a name-based criminal history check every 24 months for persons required to get background checks and that a residential operation failed to request a
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name-based criminal history check for persons 14 or older who frequent the operations while children are in care. Both violations are considered “high risk.”
189. DFPS acknowledges that failing to conduct required background checks might allow people with those particular undesirable criminal histories or central registry matches to have access to children in care.
190. As DFPS acknowledges, background checks have a critical role in reducing harm to children in care.
191. In a September 2013 Report, DFPS admitted that some childcare operations do not submit background checks timely or fail to submit checks on all persons who need them, and that this failure to comply with requirements poses a significant risk to children in the care of the operation and carries the potential for significant federal financial penalties.
192. Further, PMU reports show that, since at least 2011, RCCL investigators often failed to document that the operation was evaluated for compliance with all background checkrelated rules.
193. As RCCL Director Darla Jean Shaw testified, she did not know whether the number of deficiencies cited by RCCL for violations of background checks have increased, decreased, or held steady from year to year.
194. As of August 2014, RCCL had not developed any regular aggregate data report tracking compliance in relation to background checks.
b. Inadequate Placement Array
195. The Child Welfare League of America’s Standards for Residential Services state, “[t]he goal of any residential care provider is to maintain the child for the shortest appropriate time frame, and successfully discharge the child to a less restrictive setting or level of care.”
196. According to the Jim Casey Youth Opportunities Initiative, child welfare systems should place children in the most family-like setting possible.
197. According to established professional standards and federal policy, children should be placed with their siblings unless doing so is inadvisable due to a therapeutic or safety concern.
198. National child welfare organizations have urged states to take a data-based approach to placement array development that first analyzes the needs of children in care and then develops strategies to recruit and match placements.
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199. DFPS policy provides that all children must be placed in the least restrictive, most family-like environment suitable to their needs.
200. DFPS policy provides that foster group homes (“FGHs”) and residential group care facilities are more restrictive placements than foster family homes.
201. DFPS policy provides that siblings in care must be placed together unless doing so is not in one or both siblings’ best interests.
202. DFPS has a policy for what to do when no placement is available, specifying that children are to be placed in a hotel or are to sleep overnight in a DFPS office.
203. As DFPS has admitted, there have been placement array problems since at least 2008, including placing children out of region to access RTC services and lacking placements for sibling groups. DFPS has recognized specific problems with the state’s placement array in documents submitted to the state legislature and the federal government.
204. As DFPS has admitted, the needs of children in foster care do not always match the number, type, and location of available placement options, making it difficult to find appropriate placements for children.
205. As DFPS has admitted, there is an imbalance in the geographic distribution of foster care services and providers, and the current foster care system does not encourage providers to establish services where they are needed.
206. As DFPS has admitted, the geographic imbalance in placement and service distribution is problematic for caseworkers, children, and providers.
207. As Commissioner John Specia admits, he does not know how much progress has been made to date on increasing the number and variety of services and placements.
208. As admitted by the DFPS Commissioner, Assistant Commissioner, Chair of the Advisory Council, and other state-office-level leaders, there have been shortages of specific placement types and services, including basic foster homes, services in rural areas, and placements for children with higher-level needs.
209. As Director of Placement Gail Gonzalez admits, there is a need to increase placement capacity in order to reduce the number of children placed out of their home regions. As Ms. Gonzalez admits, DFPS only addresses this need by communicating the need to community partners and private providers. As Ms. Gonzalez further admits, this communication is not enough to “keep children close to home with the capacity that they need.”
210. The Sunset Advisory Commission identified placement array shortcomings—including lack of placements and services in communities, placement instability, lack of capacity 23

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to meet all children’s needs, and varying quality among providers—as long-standing, well-known concerns. DFPS fails to adequately assess placement and service needs at the statewide and regional levels.
211. As DFPS admits, it does not set specific recruitment targets.
212. DFPS’s regional recruitment plans address only basic-level DFPS foster homes and are inadequate in design and implementation.
213. DFPS does not have a data-driven recruitment process for therapeutic Child Placing Agency (“CPA”) foster homes or residential placements.
214. DFPS fails to appropriately recruit placements to remedy known defects in the state’s placement array.
215. DFPS fails to recruit a sufficient number of adoptive placements to meet the needs of all children who require such placements.
216. As DFPS leadership admits, placing children in their home communities leads to better outcomes for children, including improved well-being and more timely permanency.
217. DFPS has recognized that a lack of community resources results in the placement of children outside their home communities, an increased number of changes in placement, separation from siblings and family, lack of educational continuity, and a fractured support system.
218. DFPS acknowledges that over time, the state’s geographic imbalance in services results in children originating from resource-rich areas of the state being placed out of region because all available resources are being used by children originating from other areas.
219. As DFPS admits, when children move outside their home communities, they often leave behind siblings, peers, families, schools, churches, and other support networks.
220. As regional DFPS leadership admits, placing a child outside his or her home county or region may cause emotional harm and trauma to the child.
221. As regional DFPS leadership admits, DFPS needs to improve the percentage of children placed in their home counties and regions.
222. As regional DFPS leadership admits, DFPS does not establish targets for out-of-county and out-of-region placements.
223. As Commissioner John Specia admits, too many children are placed outside of their home communities due to capacity issues.
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224. As Commissioner John Specia admits, placing children in their home communities has an impact on visitation and reunification and improves case monitoring.
225. As Commissioner John Specia admits, placing children in their home communities can contribute to permanency.
226. As DFPS admits, placing children in their home communities helps facilitate visitation by biological parents, CPS caseworkers, CASAs, and attorneys ad litem and reduces travel costs.
227. As DFPS admits, placing children in their home communities helps maintain their educational continuity, and placements out of county or out of region can disrupt a child’s education.
228. As of June 30, 2014, 6,394 children, or 54.6% of all children in the State’s PMC, were placed outside of their home counties, and 3,119 children, or 26.6% of children in the State’s PMC, were placed outside of their large, multi-county DFPS regions.
229. As DFPS has admitted, children who are moved outside their home communities are often separated from siblings and other family.
230. Only half of the State’s sibling groups in PMC were intact with all members in the same placement, and more than a quarter of the sibling groups were entirely separated with no siblings placed together as of March 31, 2011.
231. As of July 2014, 35.3% of sibling groups in PMC and TMC were not intact with all members in the same placement, and 16.6% of siblings groups with children in care did not have any of the siblings placed together.
232. As Texas’s Adoption Review Committee has recognized, inappropriate sibling placement decisions hinder and delay a child’s path to a permanent family.
233. Child welfare research has shown that placing siblings together contributes to positive outcomes, including a higher likelihood of reunification.
234. As DFPS Director of Field Colleen McCall admits, over the last year in every region of the state, children have had to sleep in DFPS offices because DFPS did not have placements available for those children. Several of these children had just been discharged from psychiatric hospitals and had very high mental health needs that the DFPS staff felt unable to handle. As Regional DFPS leadership admits, such office placements are inappropriate.
235. DFPS has recognized a problem with children, including high-needs children, needing to sleep in DFPS offices due to a lack of available placements since 2008.
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236. As regional leadership admits, proper placement matching is important for children in foster care in order to increase stability.
237. As regional leadership admits, the ability to properly match children to placements can be limited by the placement array and that there is a shortage of well-matched placements for children with certain needs.
238. As regional leadership admits, having more placement options increases the likelihood of making a good initial placement match for a child.
239. As regional leadership admits, a poorly-matched foster care placement may harm a child.
240. In 2012, Texas placed 7.7% of children aged 12 or younger in a congregate setting during the year they entered state custody, a percentage higher than all but eight other states, the District of Columbia, and Puerto Rico.
241. As of June 30, 2014, 152 PMC children with a moderate service level and 30 PMC children with a basic service level were placed in residential treatment centers in violation of DFPS policy.
242. According to the Jim Casey Youth Opportunities Initiative, congregate care settings are not conducive to supporting youth in engaging activities that help them ‘practice’ for adulthood or to helping young people build social capital.
243. DFPS regional leaders do not review data on the number of basic-level children placed in congregate care placements.
244. DFPS leaves children in psychiatric and medical hospitals for longer than medically necessary due to a lack of available placements for those children.
245. As DFPS admits, there are an insufficient number of residential providers that offer a full continuum of services, with the result that children must move placements when their service needs change.
246. The Public-Private Partnership (“PPP”) found that because services are fragmented and placements are specialized by service level in Texas, many children must move multiple times in order to get the services they need. The PPP further found that these moves are not well-coordinated, with the result that sometimes important information is not conveyed and progress the child has made may be lost.
247. As regional leadership admits, a high number of moves can have a negative impact on children in care.
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248. As regional leadership admits, placement moves can be traumatic and emotionally harmful for children. As DFPS Director of Field Colleen McCall admits, any move is difficult for a child and children are better off with fewer as opposed to more placements.
249. An insufficient array of placement options contributes to placement instability by forcing children into placements that are inappropriate for them and more likely to disrupt.
250. Each move that a foster child experiences interrupts normal development and adds psychological trauma, with long-term implications for the child’s ability to develop healthy interpersonal relationships, good self-esteem, and even a conscience.
251. Placement instability is associated with negative developmental outcomes for foster children, including behavioral and emotional problems.
252. As Commissioner John Specia admits, too many placement moves can result in harm to children.
253. Federal data indicates that placement in congregate care can influence the likelihood of adoption. Federal data shows that in FY 2012, 56% of children adopted from foster care were adopted by their foster parents.
254. As the state recognized in a 2010 Program Improvement Plan, placement outside the home community can be an obstacle that impedes a child’s permanency.
255. As DFPS admits, extended stays in state custody can be problematic for children and expensive for the state.
256. As Commissioner John Specia admits, too many children age out of foster care.
257. As Commissioner John Specia admits, growing up in care and aging out of the system is a terrible result for a child that will contribute to serious problems for the child.
258. The Stephen Group noted that the limited number of foster homes in the Texas system may lead to inappropriate practice in certification and placement matches that can leave children vulnerable to further maltreatment.
259. A response by Texas CASA to the Sunset Commission Report acknowledged problems with child placement, including children being placed far from their home communities, children enduring multiple placement moves, children languishing in PMC, and children being placed in inappropriate placement. The response also acknowledged that these problems damage children and add to their trauma.
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E. FOSTER GROUP HOME SUBCLASS
260. A foster group home is a verified foster care placement that provides residential care for between seven and 12 children up to the age of 18.
261. As of April 30, 2014, there were 1,495 foster children living in FGHs.
262. Of the 1,495 foster children living in FGHs as of April 30, 2014, 831 were in the PMC of DFPS.
263. Of the 1,495 foster children living in FGHs as of April 30, 2014, 48% were placed in FGHs housing seven or more children (not including the caregivers’ biological or adopted children).
264. As of April 30, 2014, the average FGH capacity in Texas was almost nine children.
265. On any given day, between 9% and 11% of all PMC children are in FGHs.
266. According DFPS policy, Texas shifted to a family-based model of foster group home care in 2007. Specifically, foster group homes verified after January 1, 2007 must be the primary residence of foster parents.
267. According to DFPS policy, child placing agencies may verify foster group homes to house fewer than 12 children.
268. According to DFPS policy, one caregiver in a foster group home can supervise as many as eight children, though that limit decreases if there is one child under the age of five in the foster group home (one caregiver for up to five children), if more than two children are receiving treatment services (one caregiver for up to four children), or if one child has primary medical needs (one caregiver for up to four children).
269. According to DFPS policy, a “foster group home that is the primary residence of at least one caregiver may be out of ratio during waking hours for short periods as long as the care and supervision needs of the children continue to be met.”
270. According to DFPS policy, “[f]or a foster group home that is the primary residence of at least one caregiver, if three caregivers are required to meet the child/caregiver ratio, there must be at least two caregivers with the children during waking hours.”
271. According to DFPS policy, Texas does not require that at least one caregiver remains awake at all times in a foster group home.
272. According to DFPS policy, Texas requires no additional educational requirements for foster group home caregivers beyond a GED, a high school diploma, or an illustration of similar knowledge.
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273. According to DFPS policy, the number of children allowed does include biological and adopted children in the family: “[a] foster group home may care for up to 12 children, including any biological and adopted children of the caregivers who live in the foster home and any children receiving foster or respite childcare.”
274. DFPS does not itself maintain data on the biological or adopted children of caregivers living in foster group homes with foster children.
275. As Defendants admit, outside of investigations and inspections, DFPS does not regularly monitor FGHs’ compliance with staffing ratios and capacity limitations.
276. As Defendants admit, it is easier to closely supervise fewer children and young children, and children with higher service needs require a high level of supervision and care giving.
277. As Defendants admit, inadequate supervision could lead to an FGH parent potentially hurting a child or not being able to meet all of a child’s needs.
278. Caregivers in FGHs are not in compliance with the training requirements established by the Council on Accreditation for congregate care caregivers, which call for training beyond what is required for family foster homes.
279. As Defendants admit, while DFPS requires only that FGH foster parents have a high school diploma or GED, a CPA may determine that FGH foster parents do not need a high school diploma or GED and may verify an FGH with foster parents who have neither.
280. As Defendants admit, the qualifications required of FGH foster parents and foster family home (which house six or fewer children) foster parents are the same.
281. As Defendants admit, DFPS does not prohibit FGH foster parents from holding jobs, including full-time jobs, jobs that involve travel, and jobs that involve work on nights and weekends.
282. As Defendants admit, DFPS does not track the percentage of FGH foster parents who work outside the home, and DPFS does not require CPAs to track this information in any systemic way.
283. FGHs do not comply with standards established by the Child Welfare League of America requiring that on-call or on-site medical and behavioral health personnel be available at all times at all group care facilities.
284. FGHs do not comply with standards established by the Council on Accreditation requiring that on-call or on-site medical and behavioral health personnel be available at all times at all group care facilities. 29

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285. FGHs do not comply with Child Welfare League of America standards requiring at least one awake caregiver at all times in a group care setting.
286. FGHs do not comply with Council on Accreditation standards requiring at least one awake caregiver at all times in a group care setting.
287. Twenty-four hour supervision in a foster care placement improves child safety. 288. As Defendants admit, DFPS does not have a process for ensuring that FGHs meet
standards published by the Child Welfare League of America. 289. Darla Jean Shaw, testifying as a 30(b)(6) witness for DFPS on FGHs, stated that the
Council on Accreditation publishes standards regarding foster group homes, but she could not identify any such standards. 290. COA does not issue standards specific to foster group homes. 291. Texas’s placement of children in FGHs that fail to conform to accepted child welfare professional standards causes harm and the risk of harm to such children. 292. As Defendants admit, DFPS does not track how many incidents of child-on-child sexual or physical interaction occur in FGHs. 293. DFPS does not monitor the number of adopted or biological children in FGHs. F. BASIC CARE GENERAL RESIDENTIAL OPERATION SUBCLASS 294. General Residential Operations (“GRO”) are foster care placements that can house 13 or more children. 295. Some GROs contract with DFPS to house over 100 children. 296. Federal law mandates that a child in foster care should be placed in the least restrictive, most family-like setting suitable to the child’s needs. 297. Accepted child welfare professional standards provide that a child in foster care should be placed in the least restrictive, most family-like setting suitable to the child’s needs. 298. Texas policy provides that a child in foster care should be placed in the least restrictive most family-like setting suitable to the child’s needs. 299. As Defendants admit, family placements are the most desirable placements for foster children because such placements produce good outcomes for children. 300. Texas policy states that GROs are considered to be more restrictive placements than foster family homes.
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301. Texas policy discourages the use of restrictive, non-family placement settings like GROs.
302. According to DFPS policy, non-emergency, basic child care services are defined as services “that meet a child’s basic need for shelter, nutrition, clothing, nurture, socialization and interpersonal skills, care for personal health and hygiene, supervision, education, and service planning.”
303. Children in foster care in Texas who need only basic child care services are inappropriately placed in GROs.
304. GRO placements often contain children of varying ages and service levels. 305. As of June 30, 2014, 356 PMC children were placed in non-emergency GROs and
receiving only basic child care services. 306. As DFPS regional leadership admits, there is no specific reason to place a foster child
in a GRO rather than in a foster family or group home, unless no family or group home placements are available. 307. Placing children who need only basic child care services in GROs causes harm and the risk of harm to such children. 308. In SFY 2013, there were 84 children aged 12 and under placed in a General Residential Operation and 299 children aged 12 and under placed in an RTC in Texas. 309. As of June 30, 2014, 356 PMC children were placed in non-emergency GROs and receiving only basic child care services.
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ATTACHMENT 8

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DEFENDANTS’ PROPOSED FINDINGS OF FACT
CFSR Round 3 Statewide Indicators and Texas’ Compliance with National Standards.
1. The Children’s Bureau (CB) of the Administration for Children and Families (ACF), a part of the United States Health and Human Services Department (HHS), implemented the Child and Family Services Reviews (CFSRs) in 2001 in response to a mandate in the Social Security Amendments of 1994. The legislation required HHS to issue regulations for the review of state child and family services programs under titles IV-B and IV-E of the Social Security Act.
2. The CB uses the required reviews to determine whether such programs are in substantial conformity with title IV-B and IV-E plan requirements. The review process grew out of extensive consultation with interested groups, individuals, and experts in the field of child welfare and related areas.

3. The CFSRs enable the CB to: (1) ensure conformity with federal child welfare requirements; (2) determine what is actually happening to children and families as they are engaged in child welfare services; and (3) assist states in enhancing their capacity to help children and families achieve positive outcomes.

4. The CB uses national standards for state performance on statewide data indicators to determine whether a state is in substantial conformity with two outcomes, dealing with safety and permanency—two key issues in the present case.

5. Statewide data indicators are aggregate measures, and the CB calculates them using administrative data available from a state’s submissions to the Adoption and Foster Care Analysis and Reporting System (AFCARS), the National Child Abuse and Neglect Data System (NCANDS), or a CB-approved alternate source for safety-related data.

6. In an April 23, 2014, Federal Register notice (79 FR 22604), the CB proposed statewide data indicators and an approach to national standards for the third round of CFSRs that differed from that used for the second round of reviews. The notice provided a detailed review of the consultation with the field and information considered in developing the third round of the CFSRs. The CB reviewed research literature, consulted with an expert panel, considered the availability and quality of data available, and conducted statistical testing to examine relationships between available data and outcomes. During the 30-day public comment period following the notice, the CB received responses from state and local child welfare agencies, national and local advocacy and human services organizations, researchers, and other interested persons. CB reviewed and considered this input before making final decisions regarding the statewide data indicators and the methodology.

7. The CB final plan, announced October 10, 2014, is to use two statewide data indicators to measure maltreatment in foster care and recurrence of maltreatment in evaluating Safety Outcome 1: Children are, first and foremost, protected from abuse and neglect. The CB will use statewide data indicators to measure achievement of permanency in 12 months for

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children entering foster care, permanency in 12 months for children in foster care for 12 months to 23 months, permanency in 12 months for children in foster care for 24 months or more, re- entry to foster care in 12 months, and placement stability. The CB will use these five permanency indicators in evaluating Permanency Outcome 1: Children have permanency and stability in their living situations. Thus there are seven statewide indicators, two of which pertain to safety and five of which pertain to permanency. In that order, the seven statewide indicators may be described as follows:
• Maltreatment in foster care
This indicator is described as: Of all children in foster care during a 12-month period, what is the rate of victimization per day of foster care?
The CB includes this indicator to measure whether the state child welfare agency ensures that children do not experience abuse or neglect while in the state’s foster care system. The indicator holds states accountable for keeping children safe from harm while under the responsibility of the state, no matter who perpetrates the maltreatment while the child is in foster care.
• Recurrence of maltreatment
This indicator is described as: Of all children who were victims of a substantiated or indicated maltreatment report during a 12-month reporting period, what percent were victims of another substantiated or indicated maltreatment report within 12 months of their initial report?
The CB includes this indicator to measure whether the agency was successful in preventing subsequent maltreatment of a child if the child was the subject of a substantiated or indicated report of maltreatment.
• Permanency in 12 months for children entering foster care
This indicator is described as: Of all children who enter foster care in a 12-month period, what percent are discharged to permanency within 12 months of entering foster care?
Permanency, for the purposes of this indicator and the other permanency-in-12months indicators, includes discharges from foster care to reunification with the child’s parents or primary caregivers, living with a relative, guardianship, or adoption.
The CB includes this indicator to measure whether the agency reunifies or places children in safe and permanent homes as soon as possible after removal.
• Permanency in 12 months for children in foster care 12 to 23 months

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This indicator is described as: Of all children in foster care on the first day of a 12month period who had been in foster care (in that episode) between 12 and 23 months, what percent discharged from foster care to permanency within 12 months of the first day of the period?
The CB includes this indicator to measure whether the agency reunifies or places children in safe and permanent homes timely if permanency was not achieved in the first 12 to 23 months of foster care.
• Permanency in 12 months for children in foster care for 24 months or longer
This indicator is described as: Of all children in foster care on the first day of a 12month period who had been in foster care (in that episode) for 24 months or more, what percent discharged to permanency within 12 months of the first day?
The CB includes this indicator to measure whether the agency continues to ensure permanency for children who have been in foster care for longer periods of time.
• Re-entry to foster care in 12 months
This indicator is described as: Of all children who enter foster care in a 12-month period who were discharged within 12 months to reunification, living with a relative, or guardianship, what percent re-enter foster care within 12 months of their discharge?
The CB includes this indicator to measure whether the agency’s programs and practice are effective in supporting reunification and other permanency goals so that children do not return to foster care.
• Placement stability
This indicator is described as: Of all children who enter foster care in a 12-month period, what is the rate of placement moves per day of foster care?
The CB includes this indicator to measure whether the agency ensures that children who the agency removes from their homes experience stability while they are in foster care.
8. For each of these seven indicators, the CB has national standards. In setting national standards, the CB, in its words, attempted to balance the need for standards that were “ambitious and yet feasible.” In the CB’s view, the national observed performance is a reasonable benchmark and would appropriately challenge states to improve their performance.

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9. In assessing state performance, the CB chose to use a multi-level modeling approach appropriate for each indicator because it is a widely accepted statistical method that enables fair evaluation of relative performance among states with different case mixes. The result of this modeling is a performance value that is a more accurate and fair representation of each state’s performance than can be obtained with simply using the state’s observed performance.
10. The CB also chose to make risk adjustments. One was to adjust on the child’s age for each indicator. Adjusting on age allows the CB to control statistically for the fact that children of different ages have different likelihoods of experiencing the outcome, regardless of the quality of care a state provides. Another was to adjust on foster care entry rate. The CB uses entry rate to account for the fact that states with lower entry rates tend to have children at greater risk for poor outcomes.

11. Simultaneously with adoption of the seven statewide indicators, the CB provided to the public its CFSR Round 3 Statewide Data Indicators-Workbook. The Workbook provided detailed, state-by-state performance on the CFSR 3 statewide data indicators, comparisons against the National Standards, and baseline and improvement goals for states whose initial results indicate the need for a Program Improvement Plan. The Workbook also reported on data quality indicators, on all of which Texas complied.

12. Of the seven statewide indicators, Texas scored either higher or no different than the national standard on six and missed the seventh by only a small margin. More particularly, Texas performed as follows:

• Maltreatment in foster care—no different than the national standard, no need for a Program Improvement Plan (PIP), 22nd among all states.
• Recurrence of maltreatment—met national standard, no need for a PIP, 15th among all states.
• Permanency in 12 months for children entering foster care--met national standard, no need for a PIP, 25th among all states.

• Permanency in 12 months for children in foster care 12 to 23 months—met national standard, no need for a PIP, 6th among all states.

• Permanency in 12 months for children in foster care for 24 months or longer--not met national standard, need for a PIP (50 more adoptions above 2170 would have avoided a PIP), 33rd among all states.
• Re-entry to foster care in 12 months--met national standard, no need for a PIP, 4th among all states.
• Placement stability—met national standard, no need for a PIP, 24th among all states.

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13. Texas conservatorship caseworkers carry caseloads that include children that are in both PMC and TMC. The array of placements in Texas serves children who are in both PMC and TMC.
14. This level of compliance with national standards contradicts any notion that conservatorship workers in Texas, who handle both PMC and TMC children, are so overworked that they cannot get their jobs done or that the array of placements in Texas, that serves both PMC and TMC children, is so inadequate that permanency outcomes are unacceptably low.
15. This level of compliance with national standards contradicts any notion that conservatorship caseworkers in Texas are overworked to an extent that shocks the conscience.
16. This level of compliance with national standards contradicts any notion that the placement array in Texas is so inadequate as to shock the conscience.
17. This level of compliance with national standards is not the product of deliberate indifference, but instead reflects the many efforts DFPS undertakes to protect children in care and to move them to permanency as quickly as possible.
18. This level of compliance with national standards reflects exercise, not total abdication, of professional judgment.
CFSR Round 2
19. As a part of the prior Round 2, the CFSR examined the state's child welfare system for conformity with title IV-B and IV-E requirements and the achievement of certain positive outcomes for children and families with regard to safety, permanency and well-being. ACF set very high standards of performance for CFSR. Because child welfare agencies work with the country's most vulnerable children and families, only the highest standards of performance were acceptable.
20. At the conclusion of Round 2 of the CFSR, Texas entered into a PIP to address concerns raised in the review. By letter dated May 16, 2012 to DFPS Commissioner Baldwin (and a similar letter to the Governor), ACF congratulated Texas on its completion of the PIP. Texas was the third state in Region VI to have successfully completed all provisions of the PIP.
21. ACF determined that Texas had completed all of the action steps and achieved all of the data and program goals within the PIP that were negotiated between ACF and DFPS. Therefore, all applicable penalties based on their initial determination of non-conformity were rescinded.

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Prior Statewide Outcomes, Composites and Other Data
22. Also before the Court are compilations of state performance indicators that pre-date the recently adopted Round 3 seven statewide indicators with national standards. These compilations thus do not include the multilevel modeling and risk adjustment refinements the CB added in the new, Round 3 statewide indicators. The compilations are nevertheless useful for purposes of comparative performance.
23. The compilations compare the performance of Texas to other states across 15 different measures, 13 of which were developed as a part of the CFSR and are reported annually to Congress. These 13 include nine Outcome Measures (1.1, 2.1, 3.1, 3.3, 3.4, 4.1, 4.2, 5.2, and 7.1) and four permanency-related Composite Scores. The compilations also reflect the percentage of children receiving monthly visits and the percentage of children receiving monthly visits in the home. All of the data reflected in these comparisons is available on line at the site for ACF.
24. More specifically as to monthly face-to-face meetings, for fiscal year 2012, Texas, at 94%, surpassed the national standard of 90%. At 81% for visits in the home, Texas greatly exceeded the national standard of 50%. By letter dated April 27, 2012, to DFPS Commissioner Baldwin, ACF’s Children’s Bureau congratulated DFPS for its performance in ensuring monthly caseworker visits with children in foster care.
25. Texas, at 91% for FY 2011, was recognized for being among 15 states to have achieved the goal that year, while also demonstrating that more than 50 percent of such visits occurred in the residence of the child. With respect to Texas’ improvement from 54% in FY 2007, the Children’s Bureau observed that the demonstrated improvement was clearly the result of hard work performed by many capable individuals throughout the state.
26. The compilations also permit comparisons to be drawn to states that are accredited by the Council on Accreditation (COA), have had in place attempted remedies resulting from institutional reform litigation, or have prevailed in recent trials over the efficacy of their foster care systems.
27. Measured against the collective, actual performance of foster care systems across the country, Texas adequately serves the needs of foster children in its care. There is nothing shockingly or egregiously low about its performance overall or as to any measure the federal government deems important.
28. Nothing about Texas’ performance on these measures--compared to national standards or averages and compared to the performance of other states--reflects a conservatorship caseworker workforce that is so overworked or a placement array that is so inadequate as to shock the conscience or be the product of deliberate indifference. That level of performance also bespeaks professional judgment, not the total absence of same.
Other National Comparisons

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29. Also before the Court is FYE September 30, 2012, data comparing Texas to national averages. Across each of the ages of 12 to 17 years, children in foster care are younger in Texas than in the nation on average. Home-setting placements in Texas are only slightly lower than the national average (76.2% versus 79%), use of foster group homes is the same (at 6%), and Texas places children in institutions at a slightly higher rate (10% versus 9%). Compared to the nation, Texas does not have a disproportionate number of older children placed in non-home like settings and does not make a disproportionate use of group homes or institutions.
30. Also, Texas has significantly fewer children than the national average for whom long term foster care is a goal (3.1% vs. 5%) and Texas’ use of emancipation as a goal is lower than the national average (4.4% versus 5%).
31. Median length of stay in foster care in Texas is less than the national average (12.3 months vs. 13.1 months) when looking at children in care as of FYE 2012. However, looking at exits during the fiscal year, the numbers flip, with Texas at a median time in care of 15.9 months and the national average at 13.4 months.
32. For children who exited care during FY 2012, reunifications and adoptions exceed the national average and exits to emancipation are lower than the national average (7.5% vs. 10%).
33. Nothing about this level of performance by Texas, compared to national averages, shocks the conscience, reflects deliberate indifference or represents a total lack of professional judgment.
General Class—Conservatorship Caseworker Caseloads
34. Plaintiffs failed to prove that there is a widely accepted professional standard for a conservatorship caseworker caseload, including what it means to be “accepted,” which foster care agencies (or other entities that actually serve as managing conservators for children in state custody) have accepted that caseload standard, which have not and whether the former outnumber the latter so much so as to constitute “widely accepted,” that acceptance of such standard is necessary in order to adequately serve children, and that there are no other means by which caseloads may be managed in order to adequately serve children in conservatorship.
35. Plaintiffs failed to prove that any such standard creates a maximum, above which the caseload is excessive in the sense that the caseworker will fail to perform some task she would otherwise perform (i.e., but for her excessive caseload), and that such failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of any resulting harm.

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36. Plaintiffs have failed to prove what caseload level in Texas would be fairly comparable to the standard that Plaintiffs characterize as widely accepted, taking into account the characteristics of the foster care system in Texas and the various factors to be considered pursuant to that standard.

37. The Child Welfare League of America’s (CWLA) “standards of excellence” are designed to be used as ideals or goals for practice in the field of child welfare services. The represent practices considered to be most desirable. They carry no implication of control or regulation.

38. CWLA’s recommended caseload size for social workers does not apply to conservatorship caseworkers in Texas.

39. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the complexity of the needs of the child and family should be considered. Plaintiffs failed to offer such proof.

40. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the level of competency of the social worker, including skills and experience, should be considered. Plaintiffs failed to offer such proof.

41. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the specific functions assigned to the worker and concomitant time requirements for each should be considered. Plaintiffs failed to offer such proof.

42. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the geographic area served and the time required for travel for service provision should be considered. Plaintiffs failed to offer such proof for any and for all of DFPS’ regions throughout the state.

43. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the availability of services and resources required by clients should be considered. Plaintiffs failed to offer such proof.

44. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the number of other agencies involved in providing services to the cases within the caseload should be considered. Plaintiffs failed to offer such proof.

45. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the time required for case documentation and court-related activities should be considered. Plaintiffs failed to offer such proof.

46. If one were to attempt to apply CWLA’s aspirational goal for an appropriate caseload size, the time needed for agency activities such as meetings, professional development, and administrative functions should be considered. Plaintiffs failed to offer such proof.

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47. The Council on Accreditation (COA) also makes recommendations about manageable workloads. Texas is not accredited by the COA and has not sought to be accredited. Only a small percentage of states have been accredited.
48. The COA standards that Plaintiffs suggest the Court consider (and there are two—PA-FC 19.06, originally proffered and PA-FKC 19.07 more recently proffered) are not binding on Texas.
49. The COA recommendations themselves do not contain a maximum caseload size or range. COA’s PA-FKC 19.07, upon which Plaintiffs currently rely, does not purport to set a maximum. The standard itself is silent on a maximum. Only in the interpretation does a recommendation appear and it is attributed to unidentified “nationally recognized caseload guidelines.” COA’s PA-FC 19.06, on which Plaintiffs previously relied, also does not set a maximum in the standard itself. Rather, an interpretation recites “Generally, caseloads do not exceed 18 children or 8 children with special therapeutic needs. However, there are circumstances under which caseloads may exceed these limits. . . . . Caseloads may also be higher when agencies are faced with temporary vacancies on staff.” A Note to the standard further qualifies: “The specific caseload sizes stated in the interpretation are only a suggestion of what might be appropriate.”
50. If one were to attempt to apply COA PA-FKC 19.07 to establish a conservatorship caseload maximum size, the qualifications, competencies, and experiences of the worker including the level of supervision needed should be assessed. Plaintiffs failed to offer proof of such an assessment.
51. If one were to attempt to apply COA PA-FKC 19.07 to establish a conservatorship caseload maximum size, the work and time required to accomplish assigned tasks and meet practice requirements, including those associated with individual caseloads and other organizational responsibilities should be assessed. Plaintiffs failed to offer proof of such an assessment.
52. If one were to attempt to apply COA PA-FKC 19.07 to establish a conservatorship caseload maximum size, the service elements provided by other team members or collaborating providers should be assessed. Plaintiffs failed to offer proof of such an assessment.
53. If one were to attempt to apply COA PA-FKC 19.07 to establish a conservatorship caseload maximum size, the service volume, accounting for the complexity and status of each case should be assessed. Plaintiffs failed to offer proof of such an assessment.
54. If one were to attempt to apply COA PA-FC 19.06 to establish a conservatorship caseload maximum size, the qualifications and competencies of the worker and the case status and complexity are to be considered. Plaintiffs failed to offer proof of such an assessment.
55. As admonished by COA PA-FKC 19.07, taking into account the work of I See You workers, who are team members who provide frontline service elements, and the work of members of Centralized Placement Units (CPUs), who are also team members who provide

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frontline service elements, and recognizing that overtime hours for conservatorship caseworkers are the functional equivalents of full time equivalent (FTE) workers, the average caseload in Texas is 17.6 cases per worker, which is within the range recommended by the interpretation of COA PA-FC 19.06. Caseloads in Texas do not depart substantially from what Plaintiffs contend should be a maximum standard. Were a professional standard even to apply in Texas, the average caseload in Texas is consistent with any such standard.
56. The adequacy of the conservatorship caseworker workforce is amply demonstrated by Texas’ performance on the CFSR Round 3 seven statewide indicators, found above, as well as Texas’ performance on meeting monthly face to face contact requirements.
57. This court previously observed that whether or not caseworkers can carry out the tasks of safeguarding and monitoring children in their care is key evidence as to whether they are overburdened or not. The court finds that DFPS’s performance level on the safety in care statewide data indicator, DFPS’s performance level on face-to-face contacts, and the location of those contacts is key evidence that the conservatorship workforce is not overburdened.
58. Plaintiffs have failed to prove whether and, if so, the extent to which caseloads in Texas exceed what would be comparable in Texas to what Plaintiffs characterize as the widely accepted professional standard.
59. Plaintiffs have failed to prove that there is a caseworker caseload level in Texas, above which the caseload is excessive in the sense that the caseworker will fail to perform some task he would otherwise perform and that that failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of that harm.
60. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads in Texas and harm to any child in the class and for all children in the class.
61. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
62. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads and the occurrence of abuse or neglect to children in PMC.
63. Plaintiffs have failed to prove a correlation between what they characterize as excessive caseloads and permanency outcomes for children in PMC.
64. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and harm to each child in the class and to all children in the class.

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65. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
66. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and the occurrence of abuse or neglect to children in PMC.
67. Plaintiffs have failed to prove a causal relationship between what they characterize as excessive caseloads in Texas and permanency outcomes for children in PMC.
68. A causal relationship between excessive caseloads and any harm of any nature, a denial of personal security and reasonably safe living conditions, abuse and neglect, or permanency outcomes cannot be reasonably inferred in light of the following facts:
69. Plaintiffs failed to prove even a correlation between these conditions. Despite access to data on tens of thousands of children who are in or have passed through foster care in Texas, Plaintiffs have failed to prove any harm caused to any child by the fact that any caseworker had a caseload that was claimed to be too high.
70. Plaintiffs failed to prove that any substantiated incidences of abuse and neglect were caused by the fact that any caseworker had a caseload that was claimed to be too high.
71. Having failed to prove any historical causation across such a broad spectrum of children, any inference of prospective causation, much less imminent causation, would be unreasonable.
72. Despite access to data on tens of thousands of children who are in or have passed through foster care in Texas and the availability of reliable methods of statistical analysis, Plaintiffs performed no such analysis and provided no reliable results in support of causation.
73. Plaintiffs have provided no peer reviewed scientific studies to establish such causation in Texas.
74. Plaintiffs failed to disprove or rule out other possible causes of the harm or risk of harm to which they contend the class members are subjected by excessive caseloads.
75. Plaintiffs have failed to prove that any potential risk of causation associated with conservatorship caseworker caseloads is not mitigated by the involvement of other people who are involved in the lives of foster children and look out for their safety and well-being, such as foster parents, CPA inspectors and staff, I See You workers, CPU workers, CASAs, ad litems, kinship caseworkers, FAD caseworkers, RCCL inspectors and investigators, subject matter experts (SMEs), education specialists,

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therapists, counselors, STAR Health doctors, medical professionals, developmental disability specialists, child safety specialists, and courts.

76. In a very hands-on fashion, management, particularly at the supervisor and program director levels, manage caseloads among conservatorship caseworkers to ensure that such workers get help when needed.

77. Anecdotal testimony about isolated instances does not establish widespread applicability.

78. Testimony about what “can,” “could” or “might” happen is speculative and does not form the basis for any reasonable inference.

79. The Texas conservatorship workforce, with its existing caseloads, has achieved compliance with national standards for both safety-related statewide indicators and for four of the five national standards for permanency.

80. The Court further finds that the facts found below with respect to mitigation of risks associated with caseloads also make an inference of causation unreasonable.

81. Plaintiffs have failed to prove the magnitude of risk of harm to children in PMC in Texas caused by excessive caseloads in Texas.

82. For example, despite the availability of data and scientific analytical means, Plaintiffs have failed to prove that a child whose caseworker carries 40 stages is at any greater risk of experiencing abuse and neglect than a child whose caseworker carries 20 or even 10 stages.

83. Plaintiffs have failed to objectively quantify the magnitude of the risk to which children in PMC are currently exposed caused by excessive caseloads in Texas.

84. For example, despite the availability of data and scientific analytical means, Plaintiffs have failed to prove the degree by which the risk of abuse and neglect to a child whose caseworker carries 40 stages is greater than the corresponding risk to a child whose caseworker carries 20 stages or even 10 stages.

85. Having failed to prove either the fact of risk or the magnitude of risk, Plaintiffs have failed to prove that any such risk of harm to children in PMC in Texas caused by excessive caseloads is unreasonable.

86. Plaintiffs have failed to prove that harm caused by excessive caseloads is actually imminent for any child and all children in PMC.

87. Plaintiffs have failed to prove that denial of a PMC child’s right to personal security and reasonably safe living conditions caused by excessive caseloads is actually imminent for any child and all children in PMC.

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88. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, excessive caseloads have caused harm of any nature to children in PMC in the past.
89. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, excessive caseloads have caused denial of a PMC child’s right to personal security and reasonably safe living conditions in the past.
90. Plaintiffs have failed to prove that all children in PMC, on a statewide, regional and county basis, have a caseworker with an excessive caseload. To the contrary, conservatorship caseworkers across all regions in the state carry different caseloads and receive different levels of help from different sources in handling those caseloads.
91. Plaintiffs have failed to prove that all conservatorship caseworkers, on a statewide, regional and county basis, have excessive caseloads, without regard to each caseworker’s actual caseload and his or her ability to handle a caseload.
92. The extent to which caseworkers are overworked cannot be answered in the aggregate; it may only be answered for each caseworker.
93. Plaintiffs have failed to prove that what is an excessive caseload for one caseworker is also excessive for all other conservatorship caseworkers throughout the state, without regard to the individual caseworkers’ experience, education, training, and ability or to the caseload conditions and management practices in the units and regions in which such caseworkers work.
94. Plaintiffs have failed to prove that all children in PMC are subject to the same risk, including magnitude of risk, of being assigned a conservatorship caseworker whose caseload is excessive (and excessive as to that particular caseworker) and that such excessive caseload will cause or likely cause harm to all such children.
95. Plaintiffs have failed to prove that a caseworker who has what Plaintiffs characterize as an excessive caseload presents the same risk, and same degree of risk, to all children assigned to him or to her, without regard to the individual characteristics of the child and the specific circumstances of the child’s placement.
96. Plaintiffs have not demonstrated that DFPS’ conservatorship caseworker caseloads cause all children in PMC to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
97. The level of personal security a child experiences in PMC, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.

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98. Whether a PMC child is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including his or her specific placement.
99. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
100. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to caseloads for any and all children in PMC shocks the conscience.
101. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference to any and all children in PMC with respect to conservatorship caseloads.
102. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference to any and all children in PMC with respect to conservatorship caseloads.
103. Far from acting with deliberate indifference, DFPS engages in a broad spectrum of conduct to mitigate a wide variety of risks associated children in conservatorship, including risks associated caseworker caseloads.
104. A critical means to mitigate risks associated with a conservatorship caseworker workforce that might be overworked is to make sure that the children in care get their monthly face to face meetings and that an appropriate number of those meetings occur in the home. As the Court found above, for fiscal year 2012, Texas accomplished a 94% rate for monthly face to face contacts, which surpassed the national standard of 90%. At 81% for visits in the child’s residence, Texas also greatly exceeded the national standard of 50%. Further, Texas, at 91% for FY 2011, was recognized for being among 15 states to have achieved the goal that year.
105. Another means to mitigate risks associated with a conservatorship caseworker workforce that might be overworked is to structure the delivery of foster care services in such a manner as to create redundant measures that assure child safety. While having primary responsibility, the conservatorship caseworker is just one among many who have periodic interaction with a child to monitor the child’s personal security and reasonably safe living conditions. For children in unverified kinship homes, there are also kinship workers, who work with the family and assure safe living conditions. For children in foster homes operated by CPAs there are CPA staff who investigate homes and assure safe conditions. For children in homes operated by DFPS, there are FAD workers who investigate homes and assure safe conditions. For all licensed placements, there are RCCL inspectors who assure compliance with minimum safety standards. DFPS Contracts personnel play an active role in assuring safe living conditions as a part of the contracting and contract renewal processes. FITS meetings, as found by the Court below, create safety redundancy by promoting coordinated efforts among CPS, RCCL and Contracts in dealing with placements where corrective actions are appropriate. All children in conservatorship have

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daily interaction with foster caregivers who are trained to be attentive to the child’s safety and well-being. All children also have frequent interaction with some combination of CASAs, ad litems, teachers, therapists and court personnel. Child safety is never left to one person alone.
106. DFPS’ delivery of services to children in its conservatorship includes an array of specialists who assist the caseworker in serving children’s needs. Direct delivery staff such as CPU personnel, I See You workers, kinship caseworkers and Master Conservatorship workers assist with critical tasks, while other staff such as educational and medical specialists provide particularized guidance and assistance with meeting children’s needs.
107. DFPS regional leadership utilizes workload sharing at the unit level, mid-level, and between regions to ensure children’s needs are met. Specialized tenured staff, known as Master Conservatorship workers, are available for immediate deployment to specific locations as needed.
108. DFPS has a number of targeted metrics, among them the Data Placemat, which provide ready access to pertinent data at all levels to track and ensure children’s needs are being met.
109. DFPS has special, targeted pay exceptions where there are market demands. This assists in recruiting and maintaining caseworkers in challenged areas of the state.
110. DFPS modified its hiring process to strengthen the agency's ability to hire staff who will be successful; the agency altered its career ladder and certification processes to improve retention across the state.
111. DFPS engaged an outside professional consulting firm, The Stephen Group, to perform a comprehensive operational review of DFPS’ Child Protective Services. In partial response to that study and in response to the Sunset Advisory Commission’s 2014 report on DFPS, DFPS devised and is implementing a comprehensive project that it titled “Transformation.”
112. As a part of Transformation, DFPS has deployed a mentoring program designed to support caseworkers.
113. As part of its Transformation project, DFPS has further enhanced targeted recruitment and retention practices.
114. DFPS is in the process of developing a standardized practice model to enhance and strengthen casework.
115. DFPS historically has provided comprehensive training for all stages of caseworkers, including conservatorship caseworkers. The training DFPS offers caseworkers is a continually evolving process and is regularly fine-tuned to address trends and practices. A trauma-informed approach has been incorporated into training, to increase caseworker

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understanding of the impact of trauma on children and families as well as to decrease the impact of secondary trauma to caseworkers due to the nature of child welfare work.
116. DFPS caseworkers are aided in their efforts to secure permanency for children through multiple avenues, including a family group decision-making approach to case planning and the use of permanency roundtables.
117. DFPS caseworkers are supported in efforts to locate permanent homes for individual children by tools such as the Texas Adoption Resource Exchange (TARE), Heart Galleries, and focused community adoption activities. Success in the efforts has resulted in Texas leading the nation in receiving Adoption Incentive awards, rewarding the state for increasing rates of consummated adoptions for hard to place children.
118. DFPS caseworkers have a number of programs to assist youth, including preparation for adult living programs, post-emancipation services, and college tuition and fee waivers.
119. DFPS caseworkers are supported by mobile technology tools, such as smart phones and tablet personal computers.
120. DFPS caseworkers are supported by a range of community stakeholders, including local Child Welfare Boards in more than 200 counties who provide resources to children in conservatorship and CPS staff, as well as counties who fund additional staff and services beyond those allocated by the legislature.
121. DFPS has comprehensive statewide policy to ensure safety, permanency and well-being of children and families. The policy, including relevant state and federal law excerpts, is available on the agency public website for staff, stakeholders and the general public to access.
122. Such conduct does not amount to deliberate indifference or a total lack of professional judgment. Rather, it demonstrates professionalism and regard for the rights of children in foster care.
123. Plaintiffs have failed to prove a level of conservatorship caseload in Texas that would not be excessive.
124. Plaintiffs have failed to prove what risk of harm caused by conservatorship caseloads would be reasonable.
125. Plaintiffs have failed to prove that ordering any caseload limits would remedy any harm they have attempted to associate with caseloads.
126. Plaintiffs have failed to prove that ordering a specific caseload limit would remedy any harm they have attempted to associate with caseloads.

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127. Plaintiffs have failed to prove what level of caseload limit would result in a reasonable risk of harm.
128. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether conservatorship caseloads result in a reasonable risk of harm to children in PMC, both as to any child in the class and to all children in the entire class.
129. Plaintiffs have failed to prove the specific remedy they seek for the General Class and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the caseworker caseload wrong of which they complain.
Licensed Foster Care Subclass--Oversight
130. Plaintiffs have failed to prove that there is a widely accepted professional standard for a licensing inspector or investigator caseload, including what it means to be “accepted,” which foster care agencies (or other entities that actually serve as managing conservators for children in state custody) have accepted that caseload standard, which have not and whether the former outnumber the latter so much so as to constitute “widely accepted,” that acceptance of such standard is necessary in order to adequately serve children, and that there are no other means by which caseloads may be managed in order to adequately serve children in conservatorship.
131. Plaintiffs failed to prove that any such standard creates a maximum, above which the caseload is excessive in the sense that the licensing inspector or investigator will fail to perform some task she would otherwise perform, i.e., but for her excessive caseload, and that such failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of any resulting harm.
132. Plaintiffs have failed to prove what licensing inspector or investigator caseload level in Texas would be fairly comparable to the standard that Plaintiffs characterize as widely accepted, taking into account the characteristics of the foster care system in Texas and the various factors to be considered pursuant to that standard.
133. The Child Welfare League of America’s (CWLA) “standards of excellence” are designed to be used as ideals or goals for practice in the field of child welfare services. They represent practices considered to be most desirable. They carry no implication of control or regulation.
134. CWLA’s recommended caseload size for social workers does not apply to licensing inspectors or investigators in Texas.
135. Plaintiffs have failed to prove whether and, if so, the extent to which licensing inspector or investigator caseloads in Texas exceed what would be comparable in Texas to what Plaintiffs characterize as the widely accepted professional standard.

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136. Plaintiffs have failed to prove that there is a licensing inspector or investigator caseload level in Texas, above which the caseload is excessive in the sense that the licensing inspector or investigator will fail to perform some task he would otherwise perform and that that failure to perform, in turn, will likely cause harm to a child, including the magnitude of that likelihood and the nature of that harm.
137. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight due to staffing in Texas and harm to any child in the Licensed Foster Care subclass and for all children in the class.
138. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight due to staffing and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
139. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight due to staffing and the occurrence of abuse or neglect to children placed in licensed foster care.
140. Plaintiffs have failed to prove a correlation between what they characterize as inadequate oversight due to staffing and permanency outcomes for all children placed in licensed foster care.
141. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight due to staffing and harm to any child in the class and to all children in the class.
142. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight due to staffing and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
143. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight due to staffing and the occurrence of abuse or neglect to all children placed in licensed foster care.
144. Plaintiffs have failed to prove a causal relationship between what they characterize as inadequate oversight due to staffing and permanency outcomes for all children placed in licensed foster care.
145. A causal relationship between inadequate oversight due to staffing and any harm of any nature, a denial of personal security and reasonably safe living conditions, abuse and neglect, or permanency outcomes cannot be reasonably inferred in light of the following facts:
146. Plaintiffs failed to prove even a correlation between these conditions.

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147. Despite access to data on tens of thousands of children who are in or have passed through licensed foster care in Texas, Plaintiffs have failed to prove any harm caused to any child by the fact that any licensing inspector or investigator had a caseload that was claimed to be too high.
148. Plaintiffs failed to prove that any substantiated incidences of abuse and neglect were caused by the fact that any licensing inspector or investigator had a caseload that was claimed to be too high.
149. Having failed to prove any historical causation across such a broad spectrum of children, any inference of prospective causation, much less imminent causation, would be unreasonable.
150. Despite access to data on tens of thousands of children who are in or have passed through licensed foster care in Texas and the availability of reliable methods of statistical analysis, Plaintiffs performed no such analysis and provided no reliable results in support of causation.
151. Plaintiffs have provided no peer reviewed scientific studies to establish such causation in Texas.
152. Plaintiffs failed to disprove or rule out other possible causes of the harm or risk of harm to which they contend the class members are subjected by licensing inspector or investigator excessive caseloads.
153. Plaintiffs have failed to prove that any potential risk of causation associated with licensing inspector or investigator caseloads is not mitigated by the involvement of other people who are involved in the lives of foster children and look out for their safety and well-being, such as conservatorship caseworkers, foster parents, CPA inspectors and staff, I See You workers, CASAs, ad litems, kinship caseworkers, and FAD caseworkers.
154. In a very hands-on fashion, supervisors manage the caseloads of licensing inspectors and investigators to ensure that such workers get help when needed.
155. Anecdotal testimony about isolated instances does not establish widespread applicability.
156. Testimony about what “can,” “could” or “might” happen is speculative and does not form the basis for any reasonable inference.
157. Texas’ compliance with national standards for safety-related statewide indicators contradicts the contention that licensing inspector or investigator caseloads cause harm or unreasonable risk of harm to children in licensed foster care.

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158. The Court further finds that the facts found below with respect to mitigation of risks associated with inadequate oversight also make an inference of causation unreasonable.

159. Plaintiffs have failed to prove the magnitude of risk of harm to children in licensed foster care caused by inadequate oversight due to staffing.

160. Plaintiffs have failed to objectively quantify the risk to which all children placed in licensed foster care are currently exposed caused by inadequate oversight due to staffing.

161. Having failed to prove either the fact of risk or the magnitude of risk of harm, Plaintiffs have failed to prove that the risk of harm to all children placed in licensed foster care caused by inadequate oversight due to staffing is unreasonable.

162. Plaintiffs have failed to prove that harm caused by inadequate oversight due to staffing is actually imminent for any child and all children in licensed foster care.

163. Plaintiffs have failed to prove that denial of a child’s right to personal security and reasonably safe living conditions caused by inadequate oversight due to staffing is actually imminent for any child and all children in licensed foster.

164. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, inadequate oversight due to staffing has caused in the past harm of any nature to children in licensed foster care.

165. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, inadequate oversight due to staffing has caused in the past denial of a child’s right to personal security and reasonably safe living conditions for children placed in licensed foster care.

166. Plaintiffs have failed to prove inadequate oversight due to staffing on a statewide, regional and county basis, such that all children in the class are in placements for which there is inadequate oversight.

167. Plaintiffs have failed to prove that what is an excessive caseload for one licensing inspector or investigator is also excessive for all other such workers throughout the state, without regard to the individual workers’ experience, education, training, and ability or to the caseload conditions and management practices in the units and regions in which such workers work.

168. The extent to which licensing inspectors and investigators are overworked cannot be answered in the aggregate; it may only be answered for each such worker.

169. Plaintiffs have not demonstrated that DFPS’ licensed foster care inspection and investigation staffing causes all children in licensed foster care placements to suffer an

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unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
170. The level of personal security a child experiences in a licensed foster care placement, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
171. Whether a child in a licensed placement is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including his or her specific placement.
172. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
173. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to licensed care inspection and investigation staffing for any and all children in licensed placements shocks the conscience.
174. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference to any and all children in licensed placements with respect to licensed care inspection and investigation.
175. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference to any and all children in licensed placements with respect to licensed care inspection and staffing.
176. Far from acting with deliberate indifference, DFPS engages in a broad spectrum of conduct to mitigate a wide variety of risks associated children in conservatorship, including risks associated with licensed foster care inspections and investigations.
177. DFPS engages in routine and periodic inspections of children’s placements, whether through the RCCL program or the CPS program.
178. DFPS performs periodic licensing checks and engages in a thorough check of a placement and the people involved before placing a child. The agency strengthened foster care safety rules by adding requirements for additional collateral interviews, additional review of law enforcement agency calls, and verification of identity and background checks for emergency caregivers.
179. DFPS regularly holds critical case meetings led by the Commissioner, which address immediate needs, including safety and placement.

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180. The three divisions of DFPS responsible for child safety - CPS, RCCL, and Contracts regularly convene Facility Intervention Team Staffing (FITS) meetings in which particular placements and child safety are discussed.
181. In response to a critical safety need, DFPS, led by its Commissioner, developed a robust and aggressive statewide safety plan to aid in the protection of children. This plan involved agency actions, residential provider actions, and legislative oversight.
182. DFPS has created an Office of Child Safety to better protect children. DFPS uses specialized Child Safety Specialists for consultation regarding child safety issues.
183. DFPS has begun to use predictive analytics across various areas of the agency to better serve children’s safety.
184. Texas has developed a structured decision making tool to better promote child safety.
185. Texas has specialized Foster and Adoptive (FAD) home staff, including licensed child care administrators, for homes where CPS serves as child placing agency.
186. DFPS has a sophisticated call center operating 24 hours a day, 7 days a week for consistent handling of reports of abuse or neglect, reports of serious incidents, or emergency access to CPS staff.
187. Such conduct does not amount to deliberate indifference or a total lack of professional judgment. Rather, it demonstrates professionalism and regard for the rights of children in foster care.
188. Plaintiffs have failed to prove a level of licensing inspectors and investigators caseloads in Texas that would not be excessive.
189. Plaintiffs have failed to prove what risk of harm associated with licensed care oversight would be reasonable.
190. Plaintiffs have failed to prove that ordering any caseload limits for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.
191. Plaintiffs have failed to prove that ordering any staffing levels for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.
192. Plaintiffs have failed to prove that ordering a specific caseload limit for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.

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193. Plaintiffs have failed to prove that ordering a specific staffing level for licensing inspectors and investigators would remedy any harm they have attempted to associate with inadequate oversight.
194. Plaintiffs have failed to prove what level of caseload limits for licensing inspectors and investigators would result in a reasonable risk of harm.
195. Plaintiffs have failed to prove what level of staffing for licensing inspectors and investigators would result in a reasonable risk of harm.
196. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether licensing inspector and investigator caseloads result in a reasonable risk of harm to children in licensed foster care, both as to any child in the class and to all children in the entire class.
197. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether licensing inspector and investigator staffing levels result in a reasonable risk of harm to children in licensed foster care, both as to any child in the class and to all children in the entire class.
198. Plaintiffs have failed to prove what resources and processes are necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to licensed foster care placements.
199. Plaintiffs have failed to prove that unidentified professionals to be appointed by the Court are able to assess what resources and processes are necessary to ensure that Defendants have the capacity to monitor and enforce compliance with all licensing standards applicable to licensed foster care placements.
200. Plaintiffs have failed to prove the specific remedy they seek for the subclass and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the oversight inadequacy of which they complain.
201. Plaintiffs have failed to prove that there is a widely accepted professional standard in the field that requires DFPS to have a formal continuous quality improvement (CQI) system with clear performance benchmarks that are monitored systematically through planned information gathering methods and necessary follow-up actions (a “CQI with rigid requirements”), including what it means to be “accepted,” which foster care agencies (or other entities that actually serve as managing conservators for children in state custody) have accepted that CQI with rigid requirements standard, which have not, and whether the former outnumber the latter so much so as to constitute “widely accepted,” that acceptance of such standard is necessary in order to adequately serve children, and that there are no other means by which quality control may be conducted in order to adequately serve children in conservatorship.

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202. Plaintiffs’ claim with respect to a CQI with rigid requirements, especially in light of Plaintiffs’ failure to prove harm associated therewith, as found below, is nothing more than a claim that Texas has organized or mismanaged DFPS improperly and does not advance a due process claim. In that regard, the Court finds this claim to fall squarely within the admonition of the Fifth Circuit in this case found at fn. 3, 675 F.3d at 841. The Court will nevertheless make further fact findings with respect thereto that demonstrate the claim lacks factual merit.
203. Plaintiffs have failed to prove that Texas lacks a continuous quality improvement system.
204. Plaintiffs have failed to prove that to be adequate in Texas, a continuous quality improvement system must have clear performance benchmarks that are monitored systematically through planned information gathering methods and necessary follow-up actions.
205. Plaintiffs have failed to prove a correlation between what they characterize as lack of a CQI with rigid requirements in Texas and harm to any child in the Licensed Foster Care subclass and for all children in the class.
206. Plaintiffs have failed to prove a correlation between what they characterize as lack of a CQI with rigid requirements in Texas and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
207. Plaintiffs have failed to prove a correlation between what they characterize as lack of a CQI with rigid requirements in Texas and the occurrence of abuse or neglect to children in placed in licensed foster care.
208. Plaintiffs have failed to prove a correlation between what they characterize as lack of a CQI with rigid requirements in Texas and permanency outcomes for all children placed in licensed foster care.
209. Plaintiffs have failed to prove a causal relationship between what they characterize as lack of a CQI with rigid requirements in Texas and harm to any child in the class and to all children in the class.
210. Plaintiffs have failed to prove a causal relationship between what they characterize as lack of a CQI with rigid requirements in Texas and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
211. Plaintiffs have failed to prove a causal relationship between what they characterize as lack of a CQI with rigid requirements in Texas and the occurrence of abuse or neglect to all children placed in licensed foster care.

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212. Plaintiffs have failed to prove a causal relationship between what they characterize as lack of a CQI with rigid requirements in Texas and permanency outcomes for all children placed in licensed foster care.

213. A causal relationship between what Plaintiffs characterize as lack of a CQI with rigid requirements in Texas and any of harm of any nature, a denial of personal security and reasonably safe living conditions, abuse and neglect, or permanency outcomes cannot be reasonably inferred in light of the following facts:

214. Plaintiffs failed to prove even a correlation between these conditions.

215. Despite access to data on tens of thousands of children who are in or have passed through licensed foster care in Texas, Plaintiffs have failed to prove any harm caused to any child by the lack of a CQI with rigid requirements in Texas.

216. Plaintiffs failed to prove that any substantiated incidences of abuse and neglect were caused by a lack of a CQI with rigid requirements in Texas.

217. Having failed to prove any historical causation across such a broad spectrum of children, any inference of prospective causation, much less imminent causation, would be unreasonable.

218. Despite access to data on tens of thousands of children who are in or have passed through licensed foster care in Texas and the availability of reliable methods of statistical analysis, Plaintiffs performed no such analysis and provided no reliable results in support of causation.

219. Plaintiffs have provided no peer reviewed scientific studies to establish such causation in Texas.

220. Plaintiffs failed to disprove or rule out other possible causes of the harm or risk of harm to which they contend the class members are subjected by a lack of a CQI with rigid requirements.

221. Plaintiffs have failed to prove that any potential risk of causation associated with a lack of a CQI with rigid requirements is not mitigated by the involvement of other people who are involved in the lives of foster children and look out for their safety and well-being, such as conservatorship caseworkers, foster parents, CPA inspectors and staff, I See You workers, CPU workers, CASAs, ad litems, kinship caseworkers, FAD caseworkers, RCCL inspectors and investigators, subject matter experts (SMEs), education specialists, therapists, counselors, STAR Health doctors, medical professionals, developmental disability specialists, child safety specialists, and courts.

222. Anecdotal testimony about isolated instances does not establish widespread applicability.

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223. Testimony about what “can,” “could” or “might” happen is speculative and does not form the basis for any reasonable inference.
224. Texas’ compliance with national standards for safety-related and permanency statewide indicators contradicts the contention that lack of a CQI with rigid requirements causes harm or unreasonable risk of harm to children in licensed foster care.
225. The Court further finds that the facts found below with respect to mitigation of risks associated with a lack of a CQI with rigid requirements also make an inference of causation unreasonable.
226. Plaintiffs have failed to prove the magnitude of risk of harm to children in licensed foster care caused by a claimed lack of a CQI with rigid requirements in Texas.
227. Plaintiffs have failed to objectively quantify the risk to which all children placed in licensed foster care are currently exposed caused by a claimed lack of a CQI with rigid requirements.
228. Plaintiffs have failed to prove that the risk of harm to all children placed in licensed foster care are caused by a claimed lack of a CQI with rigid requirements in Texas is unreasonable.
229. Plaintiffs have failed to prove that harm caused by a claimed lack of a CQI with rigid requirements in Texas is actually imminent for any child and all children in licensed foster care.
230. Plaintiffs have failed to prove that denial of a child’s right to personal security and reasonably safe living conditions caused by a claimed lack of a CQI with rigid requirements in Texas is actually imminent for any child and all children in licensed foster.
231. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, lack of a CQI with rigid requirements in Texas has caused in the past harm of any nature to children in licensed foster care.
232. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, lack of a CQI with rigid requirements in Texas has caused in the past denial of a child’s right to personal security and reasonably safe living conditions for children placed in licensed foster care.
233. The level of personal security a child experiences in a licensed foster care placement, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.

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234. Whether a child in a licensed placement is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including his or her specific placement.

235. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.

236. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to a claimed lack of a CQI with rigid requirements in Texas for any and all children in licensed placements shocks the conscience.

237. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference to any and all children in licensed placements with respect to a claimed lack of a CQI with rigid requirements in Texas.

238. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference to any and all children in licensed placements with respect to a claimed lack of a CQI with rigid requirements in Texas.

239. Far from acting with deliberate indifference, DFPS engages in a broad spectrum of conduct to mitigate a wide variety of risks associated children in conservatorship, including risks associated continuous quality improvement.

240. DFPS is provided strong guidance, leadership, and oversight through the active role taken by the Texas Legislature.

241. The Texas Legislature requires detailed reporting and accountability from DFPS, including regular reporting regarding performance measures related to outcomes and outputs for all programs within the agency as well as Rider reports (Rider 11 Reports include staff-related outcomes and Rider 29 Reports address Foster Care Redesign outcomes, for example).

242. The Texas Legislature is supportive of DFPS, its needs, and its mission to serve and protect children. This includes providing necessary funding to accomplish its task.

243. The Texas Legislature provides active oversight efforts, through the Sunset Advisory Commission, which provided reasoned and detailed recommendations to strengthen the agency and its efforts to serve children, a House Select Committee on Child Protection, and two ongoing oversight committees, the Senate Health and Human Services and House Human Services committees.

244. DFPS has embraced outside expert assistance to improve its practice. This includes engaging The Stephen Group and Casey Family Programs to perform reviews and studies to help DFPS better serve children. DFPS has routinely relied upon the federal network of National Resource Centers for technical assistance.

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245. DFPS puts into practice the suggestions of outside consultants and experts as evidenced by the Transformation project, using external technical assistance and project management to ensure effective communication to staff, stakeholders and legislators regarding implementation.
246. DFPS is creative in its efforts to serve children, including seeking and receiving a Title IVE Waiver in Harris County for a new approach to service delivery and a federal Diligent Recruitment Grant in which DFPS and CASA have partnered in Arlington and east Texas for targeted child specific adoption recruitment and enhancing kinship adoption.
247. Texas partners with community members and stakeholders, including the Supreme Court of Texas Permanent Judicial Commission for Children, Youth and Families (Children’s Commission), to improve and better serve children’s needs.
248. DFPS has a Statewide Automated Child Welfare Information System (SACWIS) known as IMPACT that is federally approved. The information contained within this case management system is accessible to CPS staff, with external access by Court Appointed Special Advocates. Data from IMPACT are used to populate the data warehouse, where agency staff at all levels can access weekly and monthly data to monitor activity and outcomes.
249. The DFPS Contract Oversight and Support, Internal Audits, Residential Contracts and Residential Child Care Licensing divisions use risk-based audit protocols to ensure appropriate monitoring of services and providers.
250. DFPS has a continuous quality improvement system that measures whether goals are being accomplished and utilizes data to monitor progress. Dedicated resources to this function are the Performance Management Unit within the Child Care Licensing Division and the Systems Improvement Division (which also contains the Analytics and Evaluation Unit) and the Quality and Accountability Division within Child Protective Services.
251. DFPS publishes data in a manner accessible to the general public through its public website, including such regular data as a DFPS Annual Report and comprehensive Data Book, all DFPS presentations made to the legislature, agency Legislative Appropriations Requests, federal State Plans, and regional statistical data.
252. Such conduct does not amount to deliberate indifference or a total lack of professional judgment. Rather, it demonstrates professionalism and regard for the rights of children in foster care.
253. Plaintiffs have failed to prove what risk of harm associated with a continuous quality improvement system would be reasonable.

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254. Plaintiffs have failed to prove that ordering a CQI with rigid requirements would remedy any harm they have attempted to associate with lack of a CQI with rigid requirements in Texas.

255. Plaintiffs have failed to prove that ordering a CQI with rigid requirements in Texas would remedy any harm they have attempted to associate with lack of a CQI with rigid requirements.

256. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether a court-ordered CQI with rigid requirements in Texas would result in a reasonable risk of harm to children in licensed foster care, both as to any child in the class and to all children in the entire class.

257. Plaintiffs have failed to prove the specific remedy they seek for the subclass and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the oversight inadequacy of which they complain.

Licensed Foster Care Subclass—Array
258. Plaintiffs have failed to prove that there is a widely accepted professional standard for a placement array.

259. The true factual nature of Plaintiffs’ claim with respect to an inadequate placement array, especially in light of Plaintiffs’ failure to prove harm associated therewith, as found below, is nothing more than a claim that Texas has organized or mismanaged DFPS improperly and does not advance a due process claim. In that regard, and like Plaintiffs’ claim about how Texas manages continuous quality improvement, the Court finds this claim to fall squarely within the admonition of the Fifth Circuit in this case found at fn. 3, 675 F.3d at 841.

260. The Court further finds the true factual nature of the claim is nothing more than a claim that a child in licensed foster care has a right to an adequate placement or a most familylike placement, which are not substantive due process rights recognized under the Fourteenth Amendment.

261. The Court will nevertheless make further fact findings with respect thereto that demonstrate the claim lacks factual merit.

262. Plaintiffs have failed to prove that Texas has an inadequate placement array. To the contrary, Texas’ performance on the CFSR Round 3 statewide indicators, both as to safety and permanency, demonstrates that Texas is doing a satisfactory job of placing foster children in safe placements that facilitate adequate permanency outcomes.

263. Plaintiffs have failed to prove the counties and regions within the state where they contend the placement array is adequate.

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264. Given Texas’ size, geography, population, and demographic distribution, Plaintiffs have failed to prove that adequacy of array can even be established on a statewide basis.
265. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and harm to any child in the Licensed Foster Care subclass and for all children in the class.
266. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and a denial of personal security and reasonably safe living conditions for each child in the class and for all children in the class.
267. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and the occurrence of abuse or neglect to children in placed in licensed foster care.
268. Plaintiffs have failed to prove a correlation between what they characterize as an inadequate placement array and permanency outcomes for all children placed in licensed foster care.
269. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and harm to any child in the class and to all children in the class.
270. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and a denial of personal security and reasonably safe living conditions for any child in the class and for all children in the class.
271. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and the occurrence of abuse or neglect to all children placed in licensed foster care.
272. Plaintiffs have failed to prove a causal relationship between what they characterize as an inadequate placement array and permanency outcomes for all children placed in licensed foster care.
273. A causal relationship between a claimed inadequate placement array and any of harm of any nature, a denial of personal security and reasonably safe living conditions, abuse and neglect, or permanency outcomes cannot be reasonably inferred in light of the following facts:
274. Plaintiffs failed to prove even a correlation between these conditions. Despite access to data on tens of thousands of children who are in or have passed through foster care in Texas, Plaintiffs have failed to prove any harm caused to any child by an inadequate placement array.

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275. Plaintiffs failed to prove that any substantiated incidences of abuse and neglect were caused by an inadequate placement array.
276. Having failed to prove any historical causation across such a broad spectrum of children, any inference of prospective causation, much less imminent causation, would be unreasonable.
277. Despite access to data on tens of thousands of children who are in or have passed through foster care in Texas and the availability of reliable methods of statistical analysis, Plaintiffs performed no such analysis and provided no reliable results in support of causation.
278. Plaintiffs have provided no peer reviewed scientific studies to establish such causation in Texas.
279. Plaintiffs failed to disprove or rule out other possible causes of the harm or risk of harm to which they contend the class members are subjected by an inadequate placement array.
280. Plaintiffs have failed to prove that any potential risk of causation associated with an inadequate placement array is not mitigated by the involvement of other people who are involved in the lives of foster children and look out for their safety and wellbeing, such as conservatorship caseworkers, CPU workers, CASAs, ad litems, and courts, all of whom are involved in finding the most suitable placement for a child in light of the child’s individual needs and the characteristics and capabilities of the placement.
281. Anecdotal testimony about isolated instances does not establish widespread applicability.
282. Testimony about what “can,” “could” or “might” happen is speculative and does not form the basis for any reasonable inference.
283. Texas’ compliance with national standards for safety-related and permanency-related statewide indicators contradicts an inadequate array causes harm or unreasonable risk of harm to children in licensed foster care.
284. The Court further finds that the facts found below with respect to mitigation of risks associated with an inadequate array also make an inference of causation unreasonable.
285. Plaintiffs have failed to prove the magnitude of risk of harm to children in licensed foster care caused by an alleged inadequate placement array.

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286. Plaintiffs have failed to objectively quantify the risk to which all children placed in licensed foster care are currently exposed caused by an alleged inadequate placement array.
287. Plaintiffs have failed to prove that the risk of harm to all children placed in licensed foster care caused by the placement array in Texas is unreasonable.
288. Plaintiffs have failed to prove that harm caused by an alleged inadequate placement array is actually imminent for any child and all children in licensed foster care.
289. Plaintiffs have failed to prove that denial of a child’s right to personal security and reasonably safe living conditions caused by an alleged inadequate placement array is actually imminent for any child and all children in licensed foster.
290. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, an alleged inadequate placement array has caused in the past harm of any nature to children in licensed foster care.
291. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, an alleged inadequate placement array has caused in the past denial of a child’s right to personal security and reasonably safe living conditions for children placed in licensed foster care.
292. Plaintiffs have failed to prove an inadequate placement array on a statewide, regional and county basis.
293. Plaintiffs have not demonstrated that DFPS’ placement array causes all children in licensed foster care to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
294. The level of personal security a child experiences in a licensed foster care placement, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
295. Whether a child in a licensed placement is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including his or her specific placement.
296. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
297. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to the placement array for any and all children in licensed placements shocks the conscience.

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298. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference to any and all children in licensed placements with respect to the placement array.
299. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference to any and all children in licensed placements.
300. Far from acting with deliberate indifference, DFPS engages in a broad spectrum of conduct to mitigate a wide variety of risks associated children in conservatorship, including risks associated placements.
301. DFPS employs tenured CPS staff as I See You workers to ensure a child experiences regular face-to-face caseworker contacts if a child's unique needs require placement in a setting outside of their home region.
302. DFPS has developed a comprehensive, practical, and effective approach to service delivery in its Foster Care Redesign program. The approach has incorporated technical assistance by nationally recognized entities such as Chapin Hall and Public Consulting Group.
303. DFPS has a number of effective foster home recruitment efforts, one of which is faith based recruiting, which is designed to engage the community in the care of children.
304. Texas ranks high at a national level in the funds it pays foster parents.
305. When necessary, Texas uses “child specific contracts” to ensure the specific needs of individual children are met.
306. DFPS partners with its service providers to develop and enhance the array of placements available to children. Statewide venues, such as the Committee for Advancing Residential Placements or the Public Private Partnership, review policy and procedures to strengthen residential services.
307. DFPS implemented required and optional elements of the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 (H.R. 6893), including permanency care assistance, supervised independent living options, extended foster care, and extended adoption and guardianship assistance.
308. As further incentive to expansion of placement resources, the Health and Human Services Commission contracts for a managed health care service delivery model (STAR Health) that provides an electronic health passport, enables monitoring of psychotropic medication usage, and ensures adequate medical and behavioral health services for children in conservatorship.

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309. Such conduct does not amount to deliberate indifference or a total lack of professional judgment. Rather, it demonstrates professionalism and regard for the rights of children in foster care.
310. Plaintiffs have failed to prove a placement array that would be adequate on a statewide, region-wide or county-wide basis.
311. Plaintiffs have failed to prove what risk of harm associated with a placement array would be reasonable.
312. Plaintiffs have failed to prove the existence and parameters of any objective means by which to measure whether a placement array results in a reasonable risk of harm to children in licensed foster care, both as to any child in the class and to all children in the entire class.
313. Plaintiffs have failed to prove the aggregate need of all children in the subclass for additional placements that will provide the necessary number, geographic distribution, and array of placement options for all children in the subclass.
314. Plaintiffs have failed to prove that unidentified professionals to be appointed by the Court are able to assess the aggregate need of all children in the subclass for additional placements that will provide the necessary number, geographic distribution, and array of placement options for all children in the subclass.
315. Plaintiffs have failed to prove the specific remedy they seek for the subclass and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the oversight inadequacy of which they complain.
Basic in GRO Subclass
316. Plaintiffs have failed to prove a correlation between every placement of a Basic service level child in a GRO and harm to the child.
317. Plaintiffs have failed to prove that every placement of a Basic service level child in a GRO denies personal security and reasonably safe living conditions for the child.
318. Plaintiffs have failed to prove a correlation between every placement of a Basic service level child in a GRO and the occurrence of abuse or neglect to the child.
319. Plaintiffs have failed to prove a correlation between every placement of a Basic service level child in a GRO and permanency outcomes.
320. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and harm to the child.

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321. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and a denial of personal security and reasonably safe living conditions for the child.
322. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and the occurrence of abuse or neglect to the child.
323. Plaintiffs have failed to prove a causal relationship between every placement of a Basic service level child in a GRO and permanency outcomes.
324. A causal relationship between placing any Basic service level child in any GRO and any of harm of any nature, a denial of personal security and reasonably safe living conditions, abuse and neglect, or permanency outcomes cannot be reasonably inferred in light of the following facts:
325. Plaintiffs failed to prove even a correlation between these conditions.
326. Despite access to data on all Basic service level children who have been placed in GROs, Plaintiffs have failed to prove any harm caused to any child by the fact of that placement.
327. Plaintiffs failed to prove that any substantiated incidences of abuse and neglect were caused by the fact that any Basic service level child was placed in a GRO.
328. Having failed to prove any historical causation across such a broad spectrum of children, any inference of prospective causation, much less imminent causation, would be unreasonable.
329. Despite access to data to all children in the class and the availability of reliable methods of statistical analysis, Plaintiffs performed no such analysis and provided no reliable results in support of causation.
330. Plaintiffs have provided no peer reviewed scientific studies to establish such causation in Texas.
331. Plaintiffs failed to disprove or rule out other possible causes of the harm or risk of harm to which they contend the class members are subjected by being placed in a GRO.
332. Plaintiffs have failed to prove that any potential risk of causation associated with placement of a Basic service level child in a GRO is not mitigated by the involvement of other people who are involved in the lives of such children and look out for their safety and well-being, such as conservatorship caseworkers, GRO staff, RCCL inspectors and investigators, I See You workers, CASAs, ad litems, and courts.

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333. Anecdotal testimony about isolated instances does not establish widespread applicability.

334. Testimony about what “can,” “could” or “might” happen is speculative and does not form the basis for any reasonable inference.

335. Texas’ compliance with national standards for safety-related and permanency-related statewide indicators contradicts the contention placement of Basic service level children in GROs causes them harm or unreasonable risk of harm.

336. The Court further finds that the facts found below with respect to mitigation of risks associated with placement of a Basic level child in a GRO also make an inference of causation unreasonable.

337. Plaintiffs have failed to prove the magnitude of risk of harm to every Basic service level child placed in a GRO.

338. Plaintiffs have failed to objectively quantify the risk to which every Basic service level child is subjected by placement in a GRO.

339. Having failed to prove the fact of risk or the magnitude of risk, Plaintiffs have failed to prove that the risk of harm to every Basic service level child placed in a GRO is unreasonable.

340. Plaintiffs have failed to prove that harm is actually imminent for every Basic service level child placed in a GRO.

341. Plaintiffs have failed to prove that denial of a right to personal security and reasonably safe living conditions is imminent for every Basic service level child placed in a GRO.

342. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a Basic service level child in a GRO in the past caused harm of any nature to the child.

343. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a Basic service level child in a GRO in the past caused a denial of the child’s right to personal security and reasonably safe living conditions.

344. Plaintiffs have failed to prove that placement of any Basic service level child in any GRO subjects the child to a risk of harm without regard to the individual characteristics and needs of that particular child.

345. Plaintiffs have failed to prove that placement of any Basic service level child in a GRO subjects the child to a risk of harm without regard to the type of GRO where the child is placed.

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346. Plaintiffs have failed to prove that placement of any Basic service level child in any GRO subjects the child to a risk of harm without regard to the individual characteristics, qualities and capabilities of the particular GRO where the child is placed.
347. Plaintiffs have not demonstrated that placement of Basic service level children in GROs causes all such children to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
348. The level of personal security a child experiences in a GRO, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
349. Whether a Basic service level child placed in a GRO is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including the particular GRO placement.
350. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
351. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to all placements of Basic service level children in GROs shocks the conscience.
352. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference with respect to all placements of Basic service level children in GROs.
353. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference with respect to all placements of Basic service level children in GROs.
354. Far from acting with deliberate indifference, DFPS engages in a broad spectrum of conduct to mitigate a wide variety of risks associated children in conservatorship, including risks associated the placement of Basic service level children in GROs.
355. Some Basic level children prefer to be placed in a GRO setting and do well in such settings.
356. Considering that it is the child’s needs that drive the placement, there are instances in which a Basic level child’s needs are best served by placement in a GRO.
357. GROs serve an important part of the placement array in Texas, including providing placements for large sibling groups.

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358. Such conduct does not amount to deliberate indifference or a total lack of professional judgment. Rather, it demonstrates professionalism and regard for the rights of children in foster care.
Foster Group Home Subclass
359. Plaintiffs have failed to prove that there is a widely accepted COA or CWLA professional standard applicable to Foster Group Homes as they are operated in Texas.
360. The CWLA’ standards of excellence and COA standards are designed to be used as ideals or goals for practice in the field of child welfare services. They represent practices considered to be most desirable. They carry no implication of control or regulation.
361. Plaintiffs have failed to prove that there is a widely accepted professional standard calling for Foster Group Homes, as they are operated in Texas, to have a wake staff, on-call or onsite medical and behavioral health personnel, and training and education requirements established by CWLA congregate care caregivers (collectively “wake staff,” “on-call medical,” and “congregate care training”), including what it means to be “accepted,” which foster care agencies (or other entities that actually serve as managing conservators for children in state custody) have accepted that those standards, which have not and whether the former outnumber the latter so much so as to constitute “widely accepted,” and that acceptance of such standards is necessary in order to adequately serve children in Foster Group Homes.
362. Plaintiffs have failed to prove that all Foster Group Homes in Texas lack adequate night supervision, adequate access to medical services and adequate caregiver training.
363. Plaintiffs have failed to prove a correlation between every placement of a child in a Foster Group Home and harm to the child caused by lack of a wake staff, on-call medical and congregate care training.
364. Plaintiffs have failed to prove that every placement of a child in a Foster Group Home denies personal security and reasonably safe living conditions for the child caused by lack of a wake staff, on-call medical and congregate care training.
365. Plaintiffs have failed to prove a correlation between every placement of a child in a Foster Group Home and the occurrence of abuse or neglect to the child caused by lack of a wake staff, on-call medical and congregate care training.
366. Plaintiffs have failed to prove a correlation between every placement of a child in a Foster Group Home and permanency outcomes caused by lack of a wake staff, on-call medical and congregate care training.

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367. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and harm to the child caused by lack of a wake staff, on-call medical and congregate care training.
368. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and a denial of personal security and reasonably safe living conditions for the child caused by lack of a wake staff, on-call medical and congregate care training.
369. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and the occurrence of abuse or neglect to the child caused by lack of a wake staff, on-call medical and congregate care training.
370. Plaintiffs have failed to prove a causal relationship between every placement of a child in a Foster Group Home and permanency outcomes caused by lack of a wake staff, on-call medical and congregate care training.
371. A causal relationship between lack of any of a wake staff, on-call medical and congregate care training and any of harm of any nature, a denial of personal security and reasonably safe living conditions, abuse and neglect, or permanency outcomes cannot be reasonably inferred in light of the following facts:
372. Plaintiffs failed to prove even a correlation between these conditions. Despite access to data on thousands of children who are in or have passed through Foster Group Homes in Texas, Plaintiffs have failed to prove any harm caused to any child by lack of a wake staff, on-call medical and congregate care training.
373. Plaintiffs failed to prove that any substantiated incidences of abuse and neglect were caused by lack of a wake staff, on-call medical and congregate care training.
374. Having failed to prove any historical causation across such a broad spectrum of children, any inference of prospective causation, much less imminent causation, would be unreasonable.
375. Despite access to data on thousands of children who are in or have passed through Foster Group Homes in Texas and the availability of reliable methods of statistical analysis, Plaintiffs performed no such analysis and provided no reliable results in support of causation.
376. Plaintiffs have provided no peer reviewed scientific studies to establish such causation in Texas.
377. Plaintiffs failed to disprove or rule out other possible causes of the harm or risk of harm to which they contend the class members are subjected by lack of a wake staff, on-call medical and congregate care training.

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378. Plaintiffs have failed to prove that any potential risk of causation associated with a lack of a wake staff, on-call medical and congregate care training is not mitigated by the involvement of other people who are involved in the lives of foster children and look out for their safety and well-being, such as conservatorship caseworkers, foster parents (including specialized training they have received), CPU workers, CPA inspectors and staff, I See You workers, CASAs, ad litems, and courts.
379. Anecdotal testimony about isolated instances does not establish widespread applicability.
380. Testimony about what “can,” “could” or “might” happen is speculative and does not form the basis for any reasonable inference.
381. Texas’ compliance with national standards for safety-related statewide indicators contradicts the contention that lack of a wake staff, on-call medical and congregate care training cause harm or unreasonable risk of harm to children in Foster Group Homes.
382. The Court further finds that the facts found below with respect to mitigation of risks associated with a lack of a wake staff, on-call medical and congregate care also make an inference of causation unreasonable.
383. Plaintiffs have failed to prove the magnitude of risk of harm to every child placed in a Foster Group Home caused by lack of a wake staff, on-call medical and congregate care.
384. Plaintiffs have failed to objectively quantify the risk to every child placed in a Foster Group Home.
385. Plaintiffs have failed to prove that the risk of harm to every child placed in a Foster Group Home is unreasonable.
386. Plaintiffs have failed to prove that harm is actually imminent for every child placed in a Foster Group Home.
387. Plaintiffs have failed to prove that denial of a right to personal security and reasonably safe living conditions is imminent for every child placed in a Foster Group Home.
388. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a child in a Foster Group Home in the past caused harm of any nature to the child.
389. Historically and with regard to imminence, Plaintiffs have failed to prove whether, or to what extent, any placement of a child in a Foster Group Home in the past caused a denial of the child’s right to personal security and reasonably safe living conditions.

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390. Plaintiffs have failed to prove that every placement of a child in a Foster Group Home subjects the child to a risk of harm without regard to the individual characteristics and needs of that particular child.
391. Plaintiffs have failed to prove that every placement of a child in a Foster Group Home subjects the child to a risk of harm without regard to the individual characteristics, qualities and capabilities of the particular Foster Group Home where the child is placed.
392. Plaintiffs have failed to prove the level of training of all Foster Group Home parents and have failed to prove as to each and to all that such training was inadequate.
393. Plaintiffs have failed to prove the availability of on-call medical personnel at all Foster Group Home and have failed to prove as to each and to all that such availability was inadequate.
394. Plaintiffs have not demonstrated that placement of children in Foster Group Homes causes all such children to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions or any other reason.
395. The level of personal security a child experiences in a Foster Group Home, and thus its reasonableness, can only be determined with reference to the specific characteristics of that child and the circumstances of his or her placement.
396. Whether a child placed in a Foster Group Home is in reasonably safe living circumstances can only be determined with reference to the specific characteristics of that child and the unique characteristics of that child’s living conditions, including but not limited to the particular Foster Group Home, the number of children living there, and the knowledge, experience and training of the caregivers.
397. Plaintiffs have failed to prove psychological harm that is common to all class members because variations in the particular circumstances and psychological states of each class member would abound.
398. Plaintiffs have failed to prove that each and all of Defendants’ conduct with respect to all placements of children in Foster Group Homes shocks the conscience.
399. Plaintiffs have failed to prove that each and all of Defendants acted with deliberate indifference with respect to all placements of children in Foster Group Homes.
400. Plaintiffs have failed to prove that each and all of Defendants acted with cavalier indifference with respect to all placements of children in Foster Group Homes.
401. Far from acting with deliberate indifference, DFPS engages in a broad spectrum of conduct to mitigate a wide variety of risks associated children in conservatorship, including risks associated with the placement of children in Foster Group Homes.

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402. Foster parents in foster group homes receive training that is appropriate to the service level needs of children in their care. If a child with elevated service level needs is placed in a Foster Group Home, he or she will only be placed in a home where the caregivers have a corresponding level of training.
403. The majority of Foster Group Homes have actual occupancy rates that are substantially lower than the maximum levels for which they are certified.
404. Like a traditional foster family home, the vast majority of Foster Group Homes are a traditional home setting with parents who live in the home.
405. Foster Group Homes serve an important part of the DFPS placement array, including providing placements for large sibling groups and children with particularized needs.
406. Children in Foster Group Homes are entitled to medical services through STAR Health, which include 24-hours/day, 7 days per week access to the NurseWise Hotline.
407. Such conduct does not amount to deliberate indifference or a total lack of professional judgment. Rather, it demonstrates professionalism and regard for the rights of children in foster care.
408. Plaintiffs have failed to prove the specific remedy they seek for this subclass and thus they have failed to prove that such a remedy would be specific, final, capable of clear compliance, and, most importantly, effective to remedy the risk of harm of which they complain.
Named Plaintiffs, Class Representatives
409. There have been 20 Named Plaintiffs during the pendency of this suit. Of the 20, 16 have exited from PMC or were omitted by amended complaints: JS, PO, AR, and DI adopted; JV and TH omitted from complaint; SR, MR, JR, and SA were dismissed from PMC to have PMC transferred to a relative; KE, DP, SA, and TC aged out; and, LH and CH were dismissed from PMC to be returned to their mother. Four Named Plaintiffs remain in PMC: HV, AM, ZH, and MD.
410. Plaintiffs’ Corrected Fourth Amended Complaint named 15 plaintiffs. Since that filing, seven have been voluntarily dismissed (DI, JR, SR, MR, KE, PO and SS). Of the remaining eight, four have exited PMC: JS to adoption on July 18, 2014; LH and CH dismissed from PMC and returned to their mother on June 14, 2013, and AR to adoption on May 9, 2014.
411. Of the four Named Plaintiffs who remain in PMC: HV was placed in an adoptive home on August 11, 2014; AM is in a residential treatment center; ZH is in a fictive kinship home with a relative who plans to adopt him; and, MD is on runaway status.

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412. Of the class representatives named by the Court for the General Class, only HV, AM, ZH and MD are still in PMC.
413. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove that any such child had a caseworker who had an excessive caseload and that the excessive caseload caused harm to the child.
414. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove that the personal security and reasonably safe living conditions of the child will be imminently denied because the child has a caseworker with an excessive caseload.
415. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove that the child will be imminently harmed because the child has a caseworker with an excessive caseload.
416. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove the likelihood, if any, that that such child, in his or her county or region, will be assigned a caseworker who has an excessive caseload and that the excessive caseload will imminently cause harm to child.
417. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove the likelihood, if any, that that such child, in his or her region, will be assigned a caseworker who has an excessive caseload and that the excessive caseload will imminently deny the child’s right to personal security and reasonably safe living conditions.
418. Plaintiffs have failed to prove the cause or causes of any harm suffered by any of HV, AM, ZH, and MD while in PMC and that any such harm would not have occurred had he or she had a caseworker with a lower caseload.
419. Of the class representatives named by the Court for the Licensed Foster Care Subclass, only HV, AM, ZH and MD are still in PMC.
420. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove that any such child is currently in an unsafe placement.
421. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove the likelihood, if any, that the child will imminently be placed in an unsafe placement.
422. As to each of HV, AM, ZH, and MD, Plaintiffs have failed to prove that the child, either in his or her current placement or any other placement in which he or she will imminently and likely be placed, is subjected to any unreasonable risk of harm because of an insufficient number of RCCL inspectors or investigators in his or her county or district, an inadequate

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continuous quality improvement system, or an inadequate placement array in his or her county or region.
423. Plaintiffs have failed to prove the cause or causes of any harm suffered by any of HV, AM, ZH, and MD while in PMC and that any such harm would not have occurred had DFPS had more RCCL inspectors or investigators, a continuous quality improvement system, or an adequate placement array.
424. HV was the only class representative named by the Court for the Foster Group Home Subclass and while he remains in PMC, he is no longer in a Foster Group Home.
425. Plaintiffs have failed to prove that while HV was in a foster group home, the home lacked access to on-call medical services, lacked proper overnight supervision by the foster parents or that the foster parents were not adequately trained.
426. Plaintiffs have failed to prove that while HV was in a foster group home, the home lacked access to on-call medical services, lacked proper overnight supervision by the foster parents or that the foster parents were not adequately trained, and that as a result of such shortcoming he suffered injury of any kind.
427. Plaintiffs have failed to prove that while HV was in a foster group home, he was subjected to an unreasonable risk of harm due to any quality or characteristic of his placement, including the capabilities of his foster parents, other children in the home, or any physical aspect of the home.
428. LH and CH were the only representatives named by the Court for the Basic Care GRO Subclass and at the time they were made class representatives they had already exited PMC and had been returned to their mother.
429. LH and CH were not in a GRO when the Court certified them as class representatives.
430. Plaintiffs have failed to prove that while they were in a GRO they were subject to an unreasonable risk of harm due to any quality or characteristic of their placement, including the characteristics of the GRO in which they were placed and the other children living there at the time.
Texas Diversity
431. Texas is the second largest state in the nation with more than 27 million people residing in 254 counties. The child population in Texas in FY2013 was 7,159,172 children. There is diversity in how the child population is distributed, with the number of children in each of those counties ranging from a low of only 7 children (Loving County) to a high of 1,185,780 children (Harris County).

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432. The child population is growing, with more than 1 million children added in the past decade. Three of the Texas regions (Regions 8, 10 and 11) border the country of Mexico. Two regions (Regions 3 and 6) have urban areas with more than a million children in them. Three regions (Regions 4, 8 and 10) are the home to three federally recognized American Indian Tribes.
433. Children within the state are ethnically diverse. Of the 7,159,172 children, 11.6% are African American, 32.6% are Anglo, 49.4% are Hispanic, and .3% are Native American. The distribution within individual counties does not simply match the statewide distribution, even in the most populous counties. For example, in contrast to the state's 11.6% rate, Harris County has 18% African American children. In contrast to the state's 49.4% rate, Bexar County has 69% Hispanic children.
434. There is a high level of poverty, with 1.77 million children living in poverty in 2010. More than 60% of children removed from their homes come from families with annual incomes of $10,000 or less.
435. The Texas removal rate (removals per 1,000 children in the population) is lower than the national average removal rate, with a Texas removal rate of 2.5 children as compared to the national rate of 3.4. However, within the state, there is great diversity regarding the point prevalence rate of children in DFPS legal responsibility in individual counties. Even amongst the most populous counties, the rate of the annual number of children in DFPS legal responsibility per 1,000 children in the county's child population is diverse. The rate for Texas was 6.5 children per 1,000 children in DFPS legal responsibility within the child population, but large county rates range from a low of 4.3 children in Tarrant County, 5.8 children in Harris County, 6.0 in Dallas and Travis Counties, to 11.5 in Bexar County.
436. There is diversity regarding staffing issues amongst the eleven regions. For example, amongst an average number of 8,755 active CPS staff within 2014, regional active staff numbers range from a low of 236.5 in Region 10 (El Paso Region) to a high of 1,912.5 in Region 3 (Dallas Region). Statewide turnover for CPS within the same time period was 18%, while the regions ranged in turnover rates from a low of 11.8% in Region 2 (Abilene Region) to a high of 23.5% in Region 7 (Austin Region).

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ATTACHMENT 9

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PLAINTIFFS’ PROPOSED CONCLUSIONS OF LAW I. Plaintiffs Have Demonstrated That Defendants Are Violating Their Substantive Due
Process Rights by Exposing Them to an Unreasonable Risk of Harm While in Foster Care Custody
A. This Court Finds That Plaintiffs Have an Enforceable Substantive Due Process Right To Be Protected from Harm
“No State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Under the Fourteenth Amendment, “[c]hildren in the State’s care have a right to be free from an unreasonable risk of harm,” by virtue of the special relationship created when the state takes a child into custody. M.D. ex rel. Stukenberg v. Perry, 294 F.R.D. 7, 33, 32 (S.D. Tex. 2013) (holding that “the State exercises control over children in State custody and has a commensurate duty of care to them”), leave to appeal dismissed, 547 F. App’x 543 (5th Cir. 2013) (per curiam). The Fifth Circuit has repeatedly acknowledged this right, holding, for example, that “foster children enjoy a substantive due process right ‘to personal security and reasonably safe living conditions’ based on the special relationship between them and the State.” See M.D., 294 F.R.D. at 32 (quoting Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004)); see also Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 859 (5th Cir. 2012) (recognizing foster care as one of the “strictly enumerated” situations where the state assumes a duty of care sufficient to create a special relationship).
Accordingly, this Court finds that Plaintiffs within the General Class, Licensed Foster Care Subclass, Foster Group Home Subclass, and Basic Care GRO Subclass are all children in the permanent managing conservatorship of the state and are thus entitled to be free from an unreasonable risk of harm.

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B. This Court Finds That the Substantive Due Process Rights Asserted in the Complaint Include Protection from Physical and Emotional Harms
The scope of Plaintiffs’ substantive due process rights clearly encompasses the harms alleged in Plaintiffs’ Fourth Amended Complaint. “[C]hildren in the State’s care have a right to be free from an unreasonable risk of harm that would compromise their personal security or deprive them of reasonably safe living conditions.” M.D., 294 F.R.D. at 33 (citing Hernandez, 380 F.3d at 880). The scope of substantive due process rights outlined by the Fifth Circuit in Hernandez includes “‘a right to protection from psychological as well as physical abuse.’” M.D., 294 F.R.D. at 33 (quoting R.G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006)).1 Further, Plaintiff Children have a right to “‘be free from unreasonable and unnecessary intrusions into their emotional well-being.’” M.D., 294 F.R.D. at 33 (quoting Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996), aff’d, 126 F.3d 372 (2d Cir. 1997)). Defendants’ obligations are as follows: “‘[T]he Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically and psychologically.’” M.D., 294 F.R.D. at 33 (quoting K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990)).
Finally, this formulation of the scope of Plaintiffs’ substantive due process rights is “especially important as children in the PMC are practically guaranteed to have experienced significant trauma before entering the State’s care.” M.D., 294 F.R.D. at 33. Defendants’ constitutional obligation to keep Plaintiff Children free from an unreasonable risk of harm is vital to preventing further trauma.
1 Defendants have argued that the Fifth Circuit’s holding in Griffith v. Johnston forecloses Plaintiffs’ substantive due process right to be free from the imminent risk of physical or psychological harm. 899 F.2d 1427, 1439 (5th Cir. 1990). Griffith is distinguishable from the instant case and does not foreclose Plaintiffs’ claims, as the rights asserted by Plaintiffs are “much more limited than those rejected in Griffith.” M.D., 294 F.R.D. at 33-34.
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C. This Court Finds That Plaintiffs’ Constitutional Injury Can Be Demonstrated Through Risk of Harm
Plaintiffs “do not need to wait to suffer an actual harm in order to obtain relief.” M.D., 294 F.R.D. at 34. “The legal injury is the risk of harm. So, the Fourteenth Amendment right upon which Plaintiffs base their claim can be characterized as a right to be free from an unreasonable risk of harm while in the State’s custody.” Id. The Fifth Circuit recognizes that “children in foster care have ‘a constitutional right to personal security and reasonably safe living conditions.’” Id. (quoting Hernandez, 380 F.3d at 880). “Plaintiffs do not need to wait until they are actually abused or suffer from unsafe living conditions. They have a right to be free of the unreasonable risk of harm, and if they suffer that risk now, they have suffered a legal injury.” Id. The weight of authority in cases concerning the Substantive Due Process rights of children in foster care is consistent with this rule.2
D. This Court Finds That the Professional Judgment Standard Should Be Applied to Plaintiffs’ Claims
In order to succeed on a substantive due process claim a plaintiff must meet the substantive due process culpability standard, which, in this context, courts have defined through use of either the “deliberate indifference” standard or the Youngberg “absence of professional judgment” standard. M.D., 294 F.R.D. at 34-35. Plaintiffs’ claims are properly evaluated pursuant to the absence of professional judgment standard. Supreme Court precedent has established that this is the appropriate standard to apply to the substantive due process claims of innocent dependents like Plaintiff Children, entitled to “more considerate treatment and conditions of confinement” than criminals, whose claims are subject to the alternative deliberate
2 See Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987); Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 295 (D. Mass. 2011); D.G. ex rel. Strickland v. Yarbrough, No. 08-CV-074-GKF-FHM, 2011 WL 6009628, at *16 (N.D. Okla., Dec. 1, 2011); Braam ex rel. Braam v. Washington, 150 Wash.2d 689, 699 (Wash. 2003) (en banc).
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indifference test. Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). Consistent with this important distinction, many circuit courts of appeal have applied the professional judgment standard to claims brought by children in foster care. See, e.g., Yvonne L. ex rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894 (10th Cir. 1992); Winston ex rel. Winston v. Children & Youth Servs. of Del. Cnty., 948 F.2d 1380, 1391 (3d Cir. 1991); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 854 (7th Cir. 1990). A number of district courts have followed suit. See, e.g., Kenny A. ex rel. Winn v. Perdue, Civil Action No. 1:02-cv-1686-MHS, 2004 WL 5503780, at *3 (N.D. Ga. Dec. 13, 2004); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 507 (D.N.J. 2000); Brian A. ex rel. Brooks v. Sundquist, 149 F. Supp. 2d 941, 953-54 (M.D. Tenn. 2000); LaShawn A. v. Dixon, 762 F. Supp. 959, 996 (D.D.C. 1991). These decisions align with the Supreme Court’s precedent guiding the application of the professional judgment standard.
Since its complementary decisions in Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg, the Supreme Court’s express distinction between the appropriate standard to apply to the constitutional claims of incarcerated people versus those involuntarily confined has been clear. In Estelle, the Supreme Court found that the proper standard to apply to the prisoner’s claim was a deliberate indifference standard, stating that “[i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” 429 U.S. at 106; see generally id. at 102-06.
In Youngberg, the Supreme Court clarified that a different standard applied to the substantive due process claim of an individual who had been involuntarily committed to a state institution, holding that “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” 457 U.S. at 321-22. The Supreme Court adopted a
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“professional judgment” standard, which “reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints,” id. at 321, and which requires “the decision by the professional [to be] 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,” id. at 323.
In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court reiterated the importance of applying the Youngberg professional judgment standard to constitutional claims brought by individuals who are in the custody of the state through no fault of their own. With respect to those involuntarily committed, the Supreme Court stated that Youngberg’s professional judgment standard is appropriate to apply because “[t]he combination of a patient’s involuntary commitment and his total dependence on his custodians obliges the government to take thought and make reasonable provision for the patient’s welfare.” Id. at 852 n.12.
There is no Fifth Circuit case law that applies the deliberate indifference standard in the context of a lawsuit brought by a class of children in the foster care custody of the state solely seeking prospective injunctive relief. The court’s opinion in Hernandez employed the deliberate indifference standard to consider damages claims brought on behalf of a child who had died while in state foster care. 380 F.3d at 880.3 In contrast, Plaintiff Children seek prospective injunctive relief as a class – not compensatory damages for an individual victim. Consistent with this difference, district courts within the Fifth Circuit have applied the professional judgment standard to suits seeking class-wide equitable relief on behalf of those involuntarily committed to
3 In the non-precedential, unpublished per curiam opinion in Hall v. Smith, the Fifth Circuit applied the deliberate indifference standard to claims brought on behalf of a child who died in state foster care custody. 497 F. App’x 366, 374, 377 (5th Cir. 2012). This case is not applicable to Plaintiffs’ claims because the court only considered the merits of the damages claim, dismissing the request for equitable relief for lack of standing without addressing which standard applied to the declaratory relief.
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the state’s legal custody, including children in foster care custody. See, e.g., Del A. v. Roemer, 777 F. Supp. 1297, 1318 (E.D. La. 1991) (holding, in class action brought by children in foster care, that constitutional liability may be imposed “when a decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the professional actually did not base the decision on such a judgment”); Lelsz v. Kavanagh, 629 F. Supp. 1487, 1494-95 (N.D. Tex. 1986) (dismissing request for modification of consent decree granting prospective injunctive relief on behalf of class of involuntarily committed individuals in state schools and holding that terms of settlement complied with professional judgment standard required by Youngberg). The professional judgment “standard has been employed by other courts in the foster care context” where plaintiffs seek purely injunctive remedies. M.D., 294 F.R.D. at 35 (citing LaShawn A., 762 F. Supp. at 996 n.29). Therefore, here, where Plaintiffs are wards of the state who are entirely dependent on Defendants for their care, where there is no legitimate interest in punishing them because they enter foster care through no fault of their own, and where they seek only prospective injunctive relief rather than damages, the Court finds that the professional judgment standard is applicable.
E. This Court Finds That Established Professional Standards Are Relevant When Determining Liability
“[C]ompliance or lack of compliance with a professional standard, if admissible, can be evidence for or against finding a constitutional violation.” M.D., 294 F.R.D. at 35-36. Many district and circuit courts have held that accepted professional standards, including standards published by the Child Welfare League of America (CWLA) and the Council on Accreditation (COA), can assist the court in determining constitutional liability. See Doe ex rel. G.S. v. Johnson, 52 F.3d 1448, 1461-62 (7th Cir. 1995) (holding that CWLA standards were admissible
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“to aid the jury in determining the proper standard of care to which [defendants] should be held”); D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635, 642, 646 (N.D. Okla. 2011) (considering CWLA and COA standards in decision to certify class of children alleging inadequate monitoring and abuse and neglect in foster care); Kenny A., 2004 WL5503780, at *12; LaShawn A., 762 F. Supp. at 966 (characterizing standards “such as those of the Child Welfare League of America” as “relevant professional standards”). This Court finds professional child welfare standards are relevant to its determination of Defendants’ liability. 4
F. This Court Finds Reasonable Inferences as to Causation Can Be Made Based on the Record at Trial
District courts are permitted to make reasonable inferences as to causation based on evidence presented. See Heath v. Brown, 858 F.2d 1092, 1094-95 (5th Cir. 1988) (affirming district court’s finding that plaintiffs’ federal civil rights suit was a substantial factor in motivating government officials to end unconstitutional behavior where there was “a reasonable inference based upon the total record”). Similarly, in the analogous context of state tort law, the Fifth Circuit has held that “‘[c]ausation need not be supported by direct evidence. Circumstantial evidence and reasonable inferences therefrom are a sufficient basis for a finding of causation.’” Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1044 (5th Cir. 2011) (quoting Tompkins v. Cyr, 202 F.3d 770, 782 (5th Cir. 2000)) (affirming jury trial verdict finding of causation under Texas product liability law). This Court finds that it is permissible to make reasonable inferences based on evidence presented at trial to show that Defendants’ policies and
4 These standards are recognized by Texas law, which requires that the Commissioner of Health and Human Services “ensure” that caseload standards adopted by DFPS “are consistent with existing professional caseload standards.” Tex. Gov’t Code § 531.048(b)(3) (2011); see also Tex. Gov’t Code § 531.001(5) (2011) (defining “[p]rofessional caseload standards” as standards “established . . . by management studies . . . or by an authority or association, including the Child Welfare League of America”).
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practices have and continue to “create[] a risk that rises to the level of an unreasonable risk of harm” threatening class-member children. M.D., 294 F.R.D. at 34 n.6.
G. This Court Finds That Defendants Violate Plaintiffs’ Substantive Due Process Rights by Exposing Them to an Unreasonable Risk of Harm
Under either the professional judgment or the deliberate indifference standard, this Court finds that Defendants’ conduct amounts to an ongoing violation of Plaintiffs’ constitutional rights. There are specific and pervasive failures in Defendants’ administration of DFPS that place Plaintiffs at unreasonable and imminent risk of harm and that reflect substantial deviations from accepted standards of professional judgment. See M.D., 294 F.R.D. at 35; see LaShawn A., 762 F. Supp. at 997 (holding, in lawsuit brought by children in foster care seeking prospective injunctive relief, that “[t]he behavior of the defendants also confirms that the decisions made by officials within the [child welfare agency] have not been the result of the exercise of professional judgment” and not “the result of choosing among several professionally acceptable alternatives”). This Court finds that these failures represent a “pattern or practice of agency action or inaction–including a failure to correct a structural deficiency within the agency.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 847-48 (5th Cir. 2012).
This Court also finds that Defendants’ actions and inactions reflect “conscious disregard of a known and excessive risk” to Plaintiff Children. M.D., 294 F.R.D. at 35.
Specifically, and with regard to the General Class and Subclasses, this Court finds that Defendants have violated and continue to violate Plaintiffs’ substantive due process right to be free from harm and the unreasonable risk of harm while in state custody in one or more of the following respects:
(a) By maintaining excessive conservatorship worker caseloads;
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(b) By maintaining a placement array that is inadequate in number, geographic spread, and mix to meet the needs of children removed into DFPS foster care custody;
(c) By maintaining an inadequate licensing function, lacking both sufficient staffing capacity to meet policy requirements and a quality assurance capability that meets accepted standards for continuous quality improvement;
(d) By utilizing foster group homes pursuant to RCCL minimum licensing standards that fail to incorporate widely accepted safeguards for the operation of group and congregate care facilities; and
(e) By utilizing general residential operations to serve children with basic level needs who can be adequately served in a foster home setting, thereby departing from the accepted standard that children are to be placed in the least restrictive, most family-like setting.
H. This Court Finds That Defendants’ Explanations for DFPS’ Poor Performance Do Not Defeat a Finding of Liability i. The Cost of Implementing Injunctive Relief Is Not a Valid Defense
This Court finds that Defendants cannot avoid their constitutional duties to children in DFPS custody by showing that budgetary restrictions or a particular economic climate render them unable to meet their obligations or make implementation of injunctive relief untenable: “[I]t is obvious that vindication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them.” Watson v. City of Memphis, Tenn., 373 U.S. 526, 537 (1963); see also Gates v. Collier, 501 F.2d 1291, 1319-20 (5th Cir. 1974). The Fifth Circuit has recognized that “if the state chooses” to take custody of its citizens, then “it must pay the cost of maintaining” that custody “according to fundamental and well-established concepts of constitutional law.” Newman v. Alabama, 522 F.2d 71, 80 (5th Cir. 1975) (en banc) (Gewin, J., dissenting). Consistent with this mandate, the Fifth Circuit has
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expressly rejected as a defense the state’s financial inability to implement injunctive relief directed to remedying a systemic constitutional violation. Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980); Gates, 501 F.2d at 1319-20. The Fifth Circuit has expounded that
[w]here state institutions have been operating under unconstitutional conditions and practices, the defenses of fund shortage and the inability of the district court to order appropriations by the state legislature[] have been rejected by the federal courts. . . .
“Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed, upon what Respondents may actually be able to accomplish. If [the State] is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States.” Gates, 501 F.2d at 1319-20 (quoting Holt v. Sarver, 309 F. Supp. 362, 385 (E.D. Ark. 1970)).5 Financial limitations simply do not excuse Defendants’ failure to maintain a constitutionally adequate foster care system.
5 The tenet that insufficient funding does not relieve states from constitutional compliance is similarly well established in Supreme Court jurisprudence. See, e.g., Milliken v. Bradley, 433 U.S. 267, 289 (1977) (“[F]ederal courts [can] enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury.”); see also Quern v. Jordan, 440 U.S. 332, 337 (1979); Edelman v. Jordan, 415 U.S. 651, 667-68 (1974).
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ATTACHMENT 10

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DEFENDANT’S PROPOSED CONCLUSION OF LAW
I. Plaintiffs Have Failed to Advance a Due Process Claim. With specific reference to Plaintiffs’ caseworker caseload claim in the present case, the
Fifth Circuit cautioned:
For instance, it is unclear whether the Named Plaintiffs can even advance a due process claim based on a bare finding that Texas has “organized or mismanaged” DFPS improperly. See Lewis v. Casey, 518 U.S. 343, 349-50 . . . (1996)(“It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution . . . . But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly.)” MD v. Perry, 675 F.3d 832, 841 (5th Cir. 2012). The Court finds this admonition, both of
the Supreme Court in Lewis, and as pointedly raised in this case by the Fifth Circuit, to be
equally applicable to all claims advanced by the Plaintiffs.
This Court is also mindful of further Supreme Court guidance in Horne v. Flores, 557
U.S. 433, 448 (2009), where the Court, albeit in the different context of Fed. R. Civ. P. 60(b)(5)
context, observed that:
“[I]nstitutional reform injunctions often raise sensitive federalism concerns,” and
“Federalism concerns are heightened when . . . a federal court decree has the effect of dictating
state or local budget priorities. States and local governments have limited funds. When a federal
court orders that money be appropriated for one program, the effect is often to take funds away
from other important functions.”
Against the backdrop of these principles and in the injunction setting of this particular
case, it was incumbent on Plaintiffs to bring to the Court substantial and reliable proof of actual,
imminent harm. The Court has determined, however, that after extensive discovery over a

Defendant’s Proposed Conclusions of Law

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prolonged period of time, and after hearing the testimony of a number of witnesses, lay and expert alike, Plaintiffs have failed to present reliable, substantial evidence of imminent harm to the class members, as classes. Plaintiffs’ proof of harm is anecdotal at best, certainly not classwide, and is wholly unsupported by the type of data-driven, statistically and scientifically-sound evidence that the Court made clear it expected to hear. (The Court notes that its lack of standing determinations, set forth, below, are pertinent here, as well.) In short, Plaintiffs’ criticisms of foster care in Texas, many of which the Court observes are indeed detailed and thorough, are in effect only claims that DFPS has improperly organized or mismanaged foster care in Texas. While this observation applies to all classes, it is particularly apt with respect to the following claims: (1) whether Texas should restructure management of conservatorship caseworker caseloads around the organizing principle of a defined, mandatory caseload level, as urged by representative of the General Class; (2) whether DFPS should be organized to include a Continuous Quality Improvement program of the nature the representatives of the Licensed Foster Care Subclass seek; (3) whether Texas mismanages its array of placements, including whether unidentified “professionals” should be appointed by the Court to restructure the array and its management (i.e., come in and tell the state how to do a better job of it), as requested by the Licensed Foster Care Subclass; and, (4) whether Texas has properly created and operated Foster Group Homes. The Court determines that such claims fail to rise to the level of substantive due process violations and should be dismissed. II. Plaintiffs Have Failed to Prove Constitutionally Culpable Conduct.
Shocks the Conscience. “To demonstrate a viable substantive due process claim, in cases involving government action, the plaintiff must show that the state acted in a manner that ‘shocks the conscience.’” Hernandez v. Texas Department of Protective & Regulatory

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Services, 380 F.3d 872, 880 (5th Cir. 2004), citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)(the “cognizable level of executive abuse of power” to support a substantive due process claim is one that “shocks the conscience.”); Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992); MD v. Perry, 294 F.R.D. 7, 34 (S.D.Tex. 2013)(“In this case Plaintiffs challenge policies rather than discrete executive actions, so on this test they would need to show that those policies are such that they shock the conscience.”); J.R. v. Gloria, 593 F.3d 73, 79 (1st Cir. 2010); Rivera v. Rhode Island, 402 F.3d 27, 35 (1st Cir. 2005)(“Even if there exists a special relationship between the state and the individual . . . there is further and onerous requirement that the plaintiff must meet in order to prove a constitutional violation; the state actions must shock the conscience of the court.”); Nicini v. Morra, 212 F.3d 798, 812 (3rd Cir. 2000)(“[A]s Lewis makes clear, the relevant inquiry is whether the defendant’s conduct “shocks the conscience.’”); Burton v. Richmond, 370 F.3d 723, 729 (“Before official conduct or inaction rises to the level of a substantive due process violation, it must be so egregious or outrageous that it is conscienceshocking.”);
The burden of demonstrating conduct that shocks the conscience is high. See, e.g., Doe v. Covington County School District, 675 F.3d 849, 867-68 (5th Cir. 2012)(en banc)(“Conduct sufficient to shock the conscience for substantive due process purposes has been described . . . as conduct that ‘violates the decencies of civilized conduct’; conduct that is so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency’; . . . and conduct that ‘is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ Lewis, 523 U.S. at 846-47 & n. 8 . . . As one circuit court has recently summarized, ‘[t]he burden to show state conduct that shocks the conscience is extremely high, requiring stunning evidence of arbitrariness and caprice that extends beyond mere violations of state law, even

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violations resulting from bad faith to something more egregious and more extreme.’ J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 2010)(citation and internal quotation marks omitted).” ).
The requirement that culpable conduct must shock the conscience is not diminished by various articulations of culpable conduct, whether as deliberate indifference or as abdication of professional judgment. See, e.g., Martinez v. Cui, 608 F.3d 54, 64 (1st Cir. 2010)(emphasis in original.)(“Lewis clarified that the shocks-the-conscience test, first articulated in Rochin v. California, 342 U.S. 165 . . . (1952), governs all substantive due process claims based on executive, as opposed to legislative action.”) For example, the Supreme Court has observed that not all deliberate indifference shocks the conscience. City of Sacramento v. Lewis, 523 U.S. at 850 (“Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.”); J.R. v. Gloria, 593 F.3d at 80 (“deliberately indifferent behavior does not per se shock the conscience”); and, Estate of Phillips v. District of Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006)(“Deliberate indifference must still be conscience-shocking in order to state a substantive due process claim . . . .”).
Similarly, even if the Court were to adopt an abdication of professional judgment standard, which it declines to do, to be actionable such conduct must still shock the conscience. See, e.g., Schwartz v. Booker, 702 F.3d 573, 585-86 (10th Cir. 2012)(“Whether the state official failed to exercise professional judgment requires more than mere negligence; the official must have abdicated her professional duty sufficient to shock the conscience. J.W.[v. State of Utah],647 F.3d at 1011. Conduct is shocking to the conscience when the “‘degree of outrageousness and [ ] magnitude of potential or actual harm [ ] is truly conscience shocking.’

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”.”); Johnson v. Holmes, 455 F.3d 1133, 1143 (10th Cir. 2006)(“Such abdication [of professional judgment] must be sufficient to shock the conscience.”); J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011)(abdication of professional judgment “must be sufficient to shock the shock the conscience.”); and, DG v. Yarbrough, 2011 WL 6009628 (N.D. Okla., Dec. 1, 2011).
The Court finds that Plaintiffs have failed to prove that Defendants’ conduct shocks the conscience with respect to the claims of any of the classes. Plaintiffs have not even attempted to prove shocks-the-conscience behavior by the Governor or the Executive Commissioner of Health and Human Services. As to DFPS, Plaintiffs have presented no egregious or outrageous behavior or stunning evidence of arbitrariness or caprice by DFPS. To the direct contrary, in the most recent CFSR Round 3 evaluation of foster care performance by the federal agency charged with determining compliance with national standards, Texas met or exceeded national standards-characterized as ambitious, yet feasible, reasonable benchmarks--on six of the seven statewide indicators and missed on the seventh by only a small margin. These standards measure the safety of children in foster care and the state’s success in moving those children to permanency. Not only has Texas substantially met or exceeded national standards related to the key outcomes the Children’s Bureau deems appropriate in measuring the efficacy of a foster care system, Texas’ performance vis a vis other states in the nation (both on the CFSR Round 3 indicators, which are risk adjusted and based on multilevel modelling, and on the predecessor measures employed by the Children’s Bureau) is frequently higher, sometimes mid-pack, and never egregiously lower. There is simply no way to square this level of performance with a contention that DFPS’ conservatorship caseworkers are so overworked or that its array of placements is so inadequate as to shock the conscience. Texas’ performance does not shock the conscience and the Court’s inquiry need go no further. Further, the Court’s discussion below as to why Plaintiffs

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have failed to prove either deliberate indifference or, alternatively, abdication of professional
judgment precludes a finding of shocks the conscience.
III. Plaintiffs Have Failed to Prove Deliberate Indifference.
The Deliberate Indifference Standard Applies. The deliberate indifference standard
applies to a substantive due process claim brought by a child in foster care in Texas. Hernandez v. Texas Department of Protective & Regulatory Services, 380 F.3d 872, 880 (5th Cir. 2004).
The Court rejects Plaintiffs’ argument that a standard based on professional judgment should
apply, instead. The Court does so for many reasons. Six months after MD v. Perry, 675 F.3d 832 (5th Cir. 2012), and based on Hernandez, the
Fifth Circuit rejected an argument that a professional judgment standard should apply in a foster
care case. The Fifth Circuit framed and answered the question as follows:
“Hall contends that we should apply a professional judgment standard instead of the deliberate indifference standard. This court has concluded that the deliberate indifference standard is the appropriate standard for considering substantive due process claims based on foster children’s rights to personal security and reasonably safe living conditions. See Hernandez, 380 F.3d at 880. We will not disregard this established precedent. See In re Pilgrim’s Pride Corp., 690 F.3d 650, 2012 WL 3239955, at *11 (5th Cir. Aug. 10, 2012).” (Emphasis added.) Hall v. Smith, 497 Fed.Appx. 366, 377 n. 16, 2012 WL 4478437, **8 n. 16 (5th Cir., Oct. 12,
2012), cert. denied 133 S.Ct. 1814 (2013). The Court is mindful that an opinion not designated
for publication is not precedent, but the Court does find the case persuasive, based both on its
district court treatment and on its ultimate disposition. Starting with the latter, Hall petitioned
for certiorari. In her Petition, she presented the following question:
Whether a state's special custodial, non-penal relationship with its foster children renders the Eighth Amendment deliberate indifference standard of Estelle v. Gamble , 429 U.S. 97 (1976), an inappropriate standard for evaluating a claim of violation of a foster child's substantive due process rights under the 14th Amendment to the United States Constitution.

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The Supreme Court denied the petition for certiorari.

The district court’s rationale in the same case, under the style Hall v. Dixon, 2011 WL

767173, *2 (S.D. Tex, Feb 25, 2011), is persuasive.

Hall’s allegations failed to state a claim for violation of Jasmine’s right to safety in statemandated foster care, the substantive violation Hall alleged under § 1983. In a previous opinion, this court identified deliberate indifference as the applicable standard of care. . . . Hall argued in her motion for reconsideration that the standard of care should be professional judgment, citing Youngberg v. Romeo, 457 U.S. 307 . . . (1982). This court observed that no court in the Fifth Circuit had adopted the professional judgment standard in this context. See, e.g., Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective and Regulatory Servs., . . . 2002 WL 31689710, at *9 (N.D. Tex. Nov. 22, 2002). A nearly unanimous en banc opinion of the Fifth Circuit also casts doubt on the continuing validity of the standard. Hare v. City of Corinth, Miss. [Hare II], 74 F.3d 633, 646-47 (5th Cir. 1996)(en banc).”

This Court will expand on the significance of the en banc opinion in Hare II.

Hare II presented essentially the same question as that presented by Hall in her petition to

the Supreme Court and that Plaintiffs present here—whether the nature and needs of the person

in custody should determine the applicable standard. Thus Plaintiffs contend that non-prisoner

detainees or children in foster care deserve better treatment (i.e., the professional judgment

standard) than prisoners (i.e. the deliberate indifference standard). Hare II rejected that

distinction and held deliberate indifference implies in a non-prisoner detainee setting. The Fifth

Circuit first observed:

The Court in Youngberg thus announced a distinct standard to be applied in measuring the State's constitutional duties to mental incompetents, one that differed from both the Bell test and the deliberate indifference standard.*647 The Youngberg measure flowed from the premise that “[ p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Id. at 321– 22, 102 S.Ct. at 2461.

Of critical significance to the issue now before this Court, the Fifth Circuit then observed:
The Court's later decision in DeShaney, however, called into question the constitutional significance of this premise. DeShaney clarified that “[t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his

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freedom to act on his own behalf.” 489 U.S. at 200, 109 S.Ct. at 1005–06. In other words, DeShaney suggests that a State's declared intent to confine incompetents for their own benefit, as opposed to its announced purpose to punish convicted criminals, should have no bearing on the nature of the constitutional duty owed to either group. What matters under DeShaney is that “the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself.” Id. Since the State restrains the individual liberty of both mental incompetents and convicted inmates in a like manner, the State should incur the same duties to provide for the basic human needs of both groups.
74 F.3d at 646-47 (emphasis added). This language from an en banc opinion of the Fifth Circuit
refutes the distinction Plaintiffs ask this Court to draw between prisoners and foster children in
order to justify a different culpability standard for the latter. Similarly, in Henry A. v. Willden, 678 F, 3d 991m 1000 (9th Cir. 2012) (emphasis added), and with reference to its prior decision, Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833 (9th Cir. 2010), the Ninth Circuit observed:
“Tamas also clarified that the proper standard for determining whether a foster child’s due
process rights have been violated is ‘deliberate indifference,’ the same standard applied to
substantive due process claims by prisoners.” On the issue of the applicable culpability
standard, Hare II, Willden and Tamas reject the distinction between foster children and prisoners
that Plaintiffs attempt to draw. This Court will likewise reject that distinction.
The post-Hare II case of Langford v. Union County Mississippi, 51 Fed.Appx. 930, 2002 WL 31415376 (5th Cir. 2002), which was not designated for publication, but may be still
considered as persuasive authority, is also instructive. Langford involved a substantive due
process claim of an involuntarily committed, non-prisoner detainee. The situation is analogous
to a child involuntarily in foster care. The district court applied a deliberate indifference
standard. On appeal, Langford contended the “lesser ‘professional judgment standard provided
for in Youngberg v. Romero . . .” should apply. *4. Because she had not made the argument in
the district court, the Fifth Circuit declined to address it. The significance of Langford is the

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Fifth Circuit’s reliance on Hare II, which rejected the rationale of Youngberg, when it observed that under Hare II, it would appear that deliberate indifference is the standard that must be satisfied in a non-prisoner, detainee case. Hernandez, to be decided two years later, of course confirmed the applicability of the deliberate indifference standard to the analogous, non-prisoner claim of a child in foster care. See Hernandez, 380 F. 3d at 880.
The Court also notes that while the Fifth Circuit has not adopted the state-created danger theory of substantive due process, when it has nevertheless analyzed claims under that theory— claims that do not involve prisoners—it has applied a deliberate indifference standard, not professional judgment. See discussion in Doe v. Covington County School District, 675 F.3d 849, 864-65 (5th Cir. 2012)(en banc) and Hernandez, 380 F.3d at 880, n.1 (“In order to recover under the state-created danger theory, we assume . . . the state actors acted with deliberate indifference”). See also, in Scanlan v. Texas A&M University, 343 F.3d 533 (5th Cir. 2003)(application of deliberate indifference). Plaintiffs’ argument that the identity and needs of the due process claimant, here foster children, control the applicable culpability standard, finds no support in the Fifth Circuit. In that regard, it noteworthy that in Doe v. Covington, the Fifth Circuit recently confirmed the underpinning of Hare II—the duty owed to a person under state control “arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” 675 F.3d at 856, citing DeShaney, 489 at 200.
Finally, Youngberg has been characterized as adopting a gross negligence standard. See, e.g., Doe v. New York City Dep’t of Soc. Servs., 709 F.2d 782, 790 (2d Cir. 1983)(Youngberg “adopted what is essentially a gross negligence standard”). This Court could find no Fifth

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Circuit authority that has allowed gross negligence to be sufficient to support a substantive due process claim.
The Court finds Texas’ requirement of deliberate indifference to be in accord with a number of well-reasoned authorities: J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 2010)(deliberate indifference standard applies in foster care case); Doe v. New York City Department of Social Services, 649 F.2d 134, 141(2d Cir. 1981), cert. denied, 464 U.S. 864 (1983)(applying deliberate indifference in foster care case); Nicini v. Morra, 212 F.3d 798, 810 (3rd Cir. 2000)(“Indeed, in the foster care context, most of the courts of appeals have applied the deliberate indifference standard, although they have defined that standard in different ways.”); Doe v. South Carolina Dept. of Soc. Servs., 597 F.3d 163, 175 (4th Cir.), cert. denied, 131. S. Ct. 392 (2010)(applies deliberate indifference to foster care claim); Arledge v. Franklin County, Ohio, 509 F. 3d 258, 263 (6th Cir. 2007)(applying deliberate indifference in a non-prisoner, state custody context); J.H. v. Johnson, 346 F.3d 788 (7th Cir. 2003)(deliberate indifference standard applies to foster care case); Scott v. Benson, 742 F.3d 335 (8th Cir. 2014)(deliberate indifference standard applied to substantive due process claim of an individual in an involuntary civil commitment); James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006)(deliberate indifference standard applied to foster care case); Henry A. v. Willden, 678 F.3d 991, 1000 (9th Cir. 2012)(in a claim for injunctive relief in a foster care setting, the court applies deliberate indifference and observers “[Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833 (9th Cir. 2010)] also clarified that the proper standard for determining whether a foster child’s due process rights have been violated is ‘deliberate indifference,’ the same standard applied to substantive due process claims by prisoners.”); Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 845 (9th Cir. 2010)(after broad survey of existing cases concludes deliberate indifference applies to foster care substantive due process claims.);

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Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987), cert. denied, 489 U.S. (1989)(en banc)(holding that a child involuntarily placed in a foster home may state a cause of action under § 1983 only when the state official’s conduct is deliberately indifferent to the welfare of the child.); Cohen v. District of Columbia, 744 F.Supp.2d 236 (D.C.D.C. 2011)(applying deliberate indifference and shocks the conscience in foster care case).
The Court is also persuaded by decisions of circuit courts and other district courts that have addressed the issue and rejected Plaintiffs’ contention that a professional judgment standard should apply rather than deliberate indifference, as held in Hernandez and Hall, supra. In J.H. v. Johnson, 346 F.3d 788 (7th Cir. 2003), a foster care case, the plaintiffs vigorously argued for application of a professional judgment standard based on Youngberg. The Seventh Circuit instead applied a modified deliberate indifference standard (one not unlike that in the Fifth Circuit) and expressly rejected a professional judgment standard as articulated in Youngberg. Id. at 792. In so holding, the Seventh Circuit held that to adopt a professional judgment standard, the court would have to overrule its decision in K. H. ex rel. Murphy v. Morgan, 914 F. 2d 846 (7th Cir. 1990). 346 F. 3d at 792. (As I find below, this demonstrates that Plaintiffs’ reliance on K. H. as support for a professional judgment standard is entirely misplaced.) Another circuit court has expressly rejected the professional judgment standard. In Scott v. Benson, 742 F.3d 335 (8th Cir. 2014), the Eighth Circuit reversed the district court’s sua sponte decision to apply professional judgment under Youngberg, and instead applied deliberate indifference to the substantive due process claim of an individual in an involuntary civil commitment. Id. at 339. District courts have likewise rejected Youngberg in a foster care setting. In Daniel H. v. City of New York, 115 F. Supp.2d 423, 430 (S.D.N.Y. 2000), involving a substantive due process claim by a child foster care, the district court rejected a professional judgment standard and instead

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applied deliberate indifference. Likewise, in Tylena M. v. Heartshare Children’s Services, 390 F.Supp.2d 296, 302 (S.D.N.Y. 2005), a foster care case, the district court rejected the professional judgment standard.
The Court has considered the authorities Plaintiffs cite for a professional judgment standard and finds them unpersuasive. Plaintiffs cite K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 854 (7th Cir. 1990), for the professional judgment standard, but that does not appear to be a holding in the case and was subsequently rejected by Seventh Circuit in J.H. v. Johnson, 346 F.3d 788 (7th Cir. 2003). In J.H., a foster care case, the Seventh Circuit applied a modified deliberate indifference standard (one not unlike that in the Fifth Circuit) and expressly rejected a professional judgment standard as articulated in Youngberg. Id. at 792. In direct contradiction of Plaintiff’s citation to K.H. as supporting application of a professional judgment standard, the court in J.H. said: “As K.H. made clear, a professional judgment exercised by a child welfare worker serves as a ‘secure haven from liability’ rather than the starting point for determining liability.” 346 F.3d at 792 (emphasis added). To apply professional judgment, the court observed, it would have to overrule K. H. Id. The Seventh Circuit does not apply a professional judgment standard.
The Court acknowledges that the Tenth Circuit applies a professional judgment standard (one that calls, however, for far more than mere “departures” from professional judgment), in Yvonne L. ex re. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894 (10th Cir. 1992). The Tenth Circuit based its decision on: 1) K. H., and 2) the argument “that foster children, like involuntarily committed patients, are ‘entitled to more considerate treatment and conditions’ than criminals.” 959 F.2d at 893. Both grounds have lost viability, however. The Seventh Circuit has made clear in J. H. v. Johnson, supra, that K. H. does not support application of a professional

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judgment standard. And, the decisions in Hare II, Tamas and Willden undermine the validity any distinction between prisoners and non-prisoners, whether they be involuntarily committed persons or children in foster care. The Court further notes that since Yvonne L., the Tenth Circuit has made clear that a plaintiff must show that the complained of conduct also shocks the conscience. That is, the professional judgment test does not stand alone. n Schwartz v. Booker, 702 F.3d 573, 585-86 (10th Cir. 2012), the Tenth Circuit held: “Whether the state official failed to exercise professional judgment requires more than mere negligence; the official must have abdicated her professional duty sufficient to shock the conscience. J.W., [v. State of Utah], 647 F.3d at 1011. Conduct is shocking to the conscience when the degree of outrageousness and [ ] magnitude of potential or actual harm [ ] is truly conscience shocking.” (Emphasis added, internal quotation marks omitted.) J. W. v. State of Utah, 647 F.3d 1006, 1011 (10th Cir. 201); Johnson v. Holmes, 455 F.3d 133, 143 (10th Cir. 2006)(abdication must be sufficient to shock the conscience); and Uhlrig. V Harder, 64 F.3d 567, 573-74 (10th Cir. 1995).
Plaintiffs also rely on Winston ex rel. Winston v. Children & Youth Servs. Of Del. Cnty, 948 F.2d 1380, 1391 (3rd Cir. 1991) for application of a professional judgment standard. The opinion itself does not actually analyze the appropriateness of applying a professional judgment standard. Rather the circuit observes, without further analysis, that the district court applied a professional judgment. Later in Nicini v. Morra, 212 F.3d 798, the Third Circuit observed: “Indeed, in the foster care context, most of the courts of appeals have applied the deliberate indifference standard, although they have defined that standard in difference ways.” The court noted that neither party responded to the court’s inquiry as to whether the professional judgment standard should apply, so the court did not analyze the appropriateness of a professional judgment standard under Youngberg. It applied deliberate indifference. The Court does not find

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Winston to sufficiently authoritative as to control over the holding of the many circuit courts that
apply deliberate indifference, especially in light of the opinions in Hare II, Tamas, and Willden.
The Court therefore concludes that the culpability standard that applies in the present
case is one of deliberate indifference that shocks the conscience.
IV. The Deliberate Indifference Standard.
A recent Fifth Circuit case, Whitley v. Hanna, 726 F.3d 631, 641 (5th Cir. 2013),
describes the deliberate indifference standard as follows: “’The deliberate indifference standard
is a high one.’ Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). ‘To act with
deliberate indifference, as state actor must “know [ ] of and disregard [ ] an excessive risk to [the
victim’s] health or safety.”’ McClendon, 305 F.3d at 326, n. 8 (alterations in original)(quoting
Farmer v. Brennan, 511 U.S. 825, 837 . . . (1994)). ‘The state actor’s actual knowledge is
critical to the inquiry’—a ‘failure to alleviate “a significant risk that he should have perceived
but did not,” while “no cause for commendation,” does not rise to the level of deliberate
indifference.’ Id. (quoting Farmer, 511 U.sS. at 837, 114 S.Ct. 1970).”
In MD v. Perry, 294 F.R.D. at 35, this Court has found that:
deliberate indifference requires a showing that there was a conscious disregard of a known and excessive risk to the victim’s health or safety. Hernandez, 380 F.3d at 880 (citing Farmer v.Brennan, 511 U.S. 825, 837 . . . (1994); McClendon v. City of Columbia, 305 F3d 314, 326 n. 8 (5th Cir. 2002)); see also Hall, 497 Fed.Appx. at 377 n.6; Smith v. Tex. Dep’t of Family & Protective Servs., 2009 WL 2998202 (W.D.Tex. Sept. 15, 2009). Deliberate indifference is determined by a subjective standard of recklessness: the defendant ‘ “must both be aware of facts from which inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference.”’ Smith v. Brengettsy, 158 F.3d 908, 912 (5th Cir. 1998)(quoting Farmer, 511 U.S. at 387, 114 S.Ct. 1970). ‘Deliberate indifference is a degree of culpability beyond mere negligence or even gross negligence; it must amount to an intentional choice, not merely an unintentional oversight. Hall, 497 Fed.Appx. at 377 (quoting James v. Harris Cnty., 577 F3d 612, 617-18 (5th Cir. 2009)). The state of mind can be inferred, however, if the risk of harm is obvious. Hernandez, 380 F.3d at 881 (citing Hope v. Pelzer, 536 U.S. 730 . . . (2002); see also Farmer, 511 U.S. at 842 . . . (1970).”

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This Court further observed that “To succeed on the deliberate indifference standard Plaintiffs would have to show that the systemic deficiency causes an unreasonable risk of harm and that Defendants had actual or constructive knowledge of that risk, or alternatively that such knowledge should be inferred from the obviousness of the risk.” 294 F.R.D. at 35. While it is not their burden, “Defendants can defeat the claims by showing there is no such deficiency, there is no such [unreasonable] risk, or they have no actual or constructive knowledge of that risk.” Id. V. Plaintiffs Have Failed to Prove Deliberate Indifference.
The General Class. Applying this standard of deliberate indifference, the Court finds that Plaintiffs have failed to prove deliberate indifference on the part of all Defendants and by each Defendant on the claims asserted by each of the classes. As to the General Class, Plaintiffs have failed to prove a systemic deficiency. They have failed to prove that conservatorship caseworker caseloads are excessive-either in comparison to aspirational goals recommended by national organizations or to caseload levels set in actual practice by state agencies that provide conservatorship services to children in foster care. Caseloads in Texas, while high in some areas of the state, are not so high across the state as to constitute a deficiency. A deficiency means the job is not getting done and the Court finds the opposite. That the performance of conservatorship caseworkers is adequate is clearly demonstrated by Texas’ success on CFSR safety and permanency statewide indicators in meeting national standards. Plaintiffs have also failed to prove that conservatorship caseloads cause an unreasonable risk of harm to all children in the General Class. They have made no showing of past, actual harm to children caused by excessive caseloads, which proof the Court would have expected to be readily available had there indeed been demonstrable causation. Plaintiffs have also provided no sound, statistical analysis to support their contention that excessive caseloads will imminently cause harm to

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children in the future. They have failed to prove any such harm even during the pendency of this suit. The data and means of statistical analysis were available to Plaintiffs to perform this task, yet they failed to bring any such evidence to the Court. Plaintiffs have provided no reliable basis on which to assess whether there is a future risk of such harm, much less the magnitude of that risk and whether it is unreasonable. Thus, Plaintiffs are in the untenable position of having to prove the obviousness of something they were unable to prove to this Court. They have failed to make the requisite threshold showing of deliberate indifference.
Plaintiffs have also failed to prove that Defendants are indifferent to any risks associated with conservatorship case load. The Court’s findings of fact amply support the conclusion that far from deliberate indifference, Defendants have in place a wide variety of systems to mitigate risks associated with caseworker caseloads and to assure safety of children in the General Class.
As to the Licensed Foster Care Subclass, Plaintiffs have failed to demonstrate a conscious disregard of a known and excessive risk caused by an allegedly inadequate array of placements, inadequate RCCL inspector and investigator staffing, or an allegedly inadequate continuous quality improvement program. While any foster care system would like to have excessive capacity in its placement array, the Court finds that Plaintiffs have failed to prove inadequacies in the Texas array that could fairly be characterized as a system-wide deficiency that exposes all children to a known and excessive risk to their health and safety. First, such a conclusion is contradicted by the fact that with its existing placement array, Texas meets national standards for permanency in four of five statewide indicators and missed on the fifth by only a small margin. Placements in the existing array are also not resulting in safety risks. Texas met the national standard for the safety of foster children in licensed care. Plaintiffs have failed to prove that the existing array in Texas constitutes a known and excessive risk of harm to the health and safety of

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children—especially all children—in the Licensed Foster Care Subclass. Having failed to prove the existence of such an excessive risk, they necessarily have failed to prove it was known or was so excessive as to be obvious to Defendants. The Court further finds that DFPS is not indifferent to the need for an adequate placement array and its efforts to maintain such an array and mitigate risks to children associated with an array belie deliberate indifference. Plaintiffs have likewise failed to prove deliberate indifference with respect to RCCL staffing or continuous quality improvement within DFPS. They have failed to prove excessive risks of harm to the health and safety or children in the subclass caused by these alleged shortcomings. Again, the actual performance of Texas on the outcome measures the federal government deems most significant—safety in licensed care and permanency—demonstrate that Texas does not subject children to excessive risk of harm to their health and safety. Nor have Plaintiffs demonstrated deliberate indifference by the State. DFPS has demonstrated an awareness of risks by implementing redundant systems to assure child safety of children in licensed facilities, has been active in attempting to retain and expand staff to perform inspections and investigations of licensed facilities, and engages in continual efforts to self-improve, generated from within the agency and generated and monitored outside the agency by a variety of authorities, including the Legislature and public stakeholders. DFPS does not act with deliberate indifference to the children in its licensed placements.
As to the Basic GRO Subclass, Plaintiffs have failed to prove deliberate indifference. The Court initial observes that every decision to place a Basic service level child in a GRO is a unique decision based on the characteristics of the child and the capabilities of the specific GRO. There is no generalized excessive risk to the health or safety of a Basic level child placed in a GRO. Whether a risk is excessive or obvious must be made on a case by case basis. Plaintiffs

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have failed to make that showing. Deliberate indifference cannot be shown on a class-wide basis. Plaintiffs have failed to prove even the threshold issue that when DFPS places a Basic service level child in a GRO, the child, as a result of that placement, is necessarily and always subjected to an excessive risk to his or her health or safety. They have failed to make that showing either historically with actual incidents or prospectively with reliable statistical analysis. Far from being deliberately indifferent to the health and safety of Basic service level children placed in GROs, DFPS attempts to make appropriate placements, based on the specific needs of the child and the characteristics of the placement and employs a variety of redundant measure to assure the safety of such children in such placements.
Finally, as to the Foster Group Home subclass, Plaintiffs have failed to prove deliberate indifference. As with the placement of a Basic level child in a GRO, every decision to place a child in a Foster Group Home is made on the basis of the needs of the child and characteristics of the Foster Group Home. Whether risk is excessive or obvious can only be determined on a case by case basis. For example, Plaintiffs have failed to prove that the parents in all foster group homes lack training adequate to the needs of the children placed in that home. Having failed to make that showing, Plaintiffs simply cannot show that such placements subject children to an excessive risk to health or safety. Plaintiffs have also failed to make the threshold showing that placement in Foster Group Homes do indeed subject children to an excessive risk of harm to health or safety. They have failed to make that showing either historically with actual incidents or prospectively with reliable statistical analysis. Far from being deliberately indifferent to the health and safety of children placed in foster group homes, DFPS exercises care to make appropriate placements, based on the specific needs of the child and the characteristics of the

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foster group home. DFPS also put in place a variety of redundant measure to assure the safety of such children in such placements. VI. Alternatively, Plaintiffs Have Failed to Prove Abdication of Professional Judgment.
The Court declines to adopt an abdication of professional judgment culpability standard under substantive due process. Even if the Court were to apply such a standard, however, Plaintiffs have failed to meet it. The Court has already observed that “It is not the case that the United States Constitution compels Texas to adopt a particular standard to organize its foster care system around. Instead, under the professional judgment standard Plaintiffs must show that an alleged systematic deficiency is such a departure from professional standards and practice that it cannot have been based on professionals exercising their professional judgment.” MD, 294 F.R.D. at 35.
As to each Defendant and as to each class, Plaintiffs have failed to make this showing. As to the General Class, Plaintiffs assume that a maximum caseload standard is even necessary for an agency to operate effectively. They have failed to prove this assertion. The Court is convinced that size of the state, diversity of its culture and variations among the 254 counties and 11 DFPS regions in the state, would make a stated maximum caseload unworkable. Plaintiffs have failed to convince the Court that there must be a maximum figure as opposed to other means to regulate workload to bring about acceptable levels of performance. Texas is, in fact, a case in point. Texas does not have a stated caseload maximum, yet its conservatorship workforce has demonstrated an ability to achieve results that meet or exceed national standards on the key areas of safety and permanence. Even if the Court were convinced that professional standards, however they may be defined, were applicable to caseloads, the Court further finds that current caseloads for conservatorship caseworkers in Texas are not so far off the mark that

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Plaintiffs would set as to show lack of adherence to any standards at all. The Court also notes that no single standard governs, thus caseloads recommended by the CWLA or COA (from which the Court fails to see a huge departure by DFPS) need not control at all. Instead, caseworker case performance is measured by other professional standards. While it is not Defendants’ burden to show adherence to other standards, the Court finds that the federal government sets professional standards through the CFSR process (as to safety and permanency) and through recommended face-to-face and in-home meetings to be conducted by caseworkers. Texas’ conservatorship workers have met or exceeded these standards in six of the seven statewide indicators for safety and permanency plus both standards for face-to-face meetings. The only miss by Texas was on permanency in 12 months for children in care 24 months or more, and Texas would have achieved that standard, as well, with an additional 50 adoptions above the 2170 adoptions it actually accomplished in the relevant category. The Court further finds that national average performances among all states in the nation establish what may be deemed professional standards, and Texas’s performance vis a vis other states amply demonstrates adherence to standards designed to measure and promote safety and permanency for children in foster care. The Court further finds that DFPS’ actual workload management processes, including hands-on caseload monitoring, work sharing when necessary, and the allocation of workforce resources through the Equity of Services System or ESS are reflective of professional standards and, while not perfect, are an effective means to deal with the everchanging demands made upon DFPS’ conservatorship caseworker workforce. Plaintiffs have failed to prove a total abdication of professional standards with respect to conservatorship caseloads in Texas.

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As to the Licensed Foster Care Subclass, Plaintiffs have also failed to prove a complete abdication of adherence to professional standards. The very fact that DFPS has a Performance Management Unit, regardless of whether it meets the performance standards Plaintiffs would impose upon it, demonstrates an awareness of, and attempt to comply with professional standards for continuous quality improvement. With respect to quality control, the Court also finds sufficient adherence to professional standards in the form of close Legislative oversight, including Sunset review, and in the form of DFPS’ use of outside professional consultants to evaluate and propose operational changes. DFPS’ response to these quality control measures reflects an adequate level of professionalism in how it maintains quality control. As to inspector and investigator staffing, the Court finds no total abdication of professional standards. Again, Plaintiffs have failed to convince the Court that compliance with an aspirational CWLA or COA guideline is the only manifestation of professionalism. Although it may not be run as satisfactorily as Plaintiffs would like to see, RCCL has in place a system managing the workloads of inspection and investigation staff members and evaluating their performances. Moreover, the Court finds a commendable level of professionalism in the Facility Intervention Treatment Staffing (FITS) process, whereby all three arms of DFPS (CPS, Contracts and Licensing) coordinate efforts to assure the safety of children in licensed facilities through redundant levels of placement oversight. The Court further finds recognition of professional standards in the fact that RCCL has self-evaluated staffing needs and determined increased staffing is appropriate at this time—a need upon which the agency is acting in the upcoming legislative appropriations. As to array, Plaintiffs have failed to prove a total abdication of professional responsibility with respect to maintaining an adequate array of placements. While it is not their burden, Defendants have demonstrated a variety of means they employ to maintain

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and expand the pool of placements available to DFPS. The Court finds DFPS’ Foster Care Redesign program to be an open embrace by the state of standards of professional targeted to improve the array in Texas. Ongoing efforts to recruit for the legacy system also reflect fidelity to professional standards. Finally, the Court finds that while there is always room for improvement, professional standards for permanency and safety outcomes are reflective of array adequacy and Texas has performed satisfactorily on those standards.
As to the Basic GRO Subclass, Plaintiffs have failed to prove a total abdication of adherence to professional standards. To the contrary, while it is not their burden to demonstrate, Defendants have shown that decisions to place Basic level children in GROs, when indeed it happens, are based on the application of professional standards call for recognition of he needs of the child and the capabilities of the placement.
Finally, as to Foster Group Homes, Plaintiffs have failed to prove abdication of professional standards in how DFPS runs foster group homes. At most, they have shown they would run them differently. DFPS recognizes and adheres to professional standards insofar as the agency calls for inspections of foster group homes, adequate training of its caregivers, and an adequate access to medical services.
Plaintiffs have failed to meet their burden to show an abdication of professional judgment as to any of the classes. Plaintiffs’ showing fails in another respect. The professional judgment standard also requires shocks the conscience conduct. Schwartz v. Booker, 702 F.3d at 585-86; Johnson v. Holmes, 455 F.3d at 1143; J.W. v. Utah, 647 F.3d at 1011; DG v. Yarbrough, 2011 WL 6009628. The Court has already found, above, that Plaintiffs have failed to prove that Defendants’ conduct shocks the conscience. That find precludes a finding of liability under the abdication of professional responsibility standard, were it to apply.

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VII. Plaintiffs Have Failed to Prove Violations of Substantive Due Process Scope of Constitutional Duty. A child in foster care in Texas has a Fourteenth Amendment substantive due process right
to personal security and reasonably safe living conditions. Hernandez v. Texas Department of Protective & Regulatory Services, 380 F.3d 872 (5th Cir. 2004); MD, 294 F.R.D. at 32. The United States Supreme Court has not directly recognized a substantive due process right in a foster care case. The Fifth Circuit has not recognized such a right beyond that described in Hernandez.
This Court has previously recognized that Plaintiffs do not have constitutional rights per se to be free from inappropriate placements and frequent placement moves and a right not to be removed a certain distance from their home communities; MD, 294 F.R.D. at 54-55. Nor are there per se constitutional rights as demonstrated by the following authorities: Sheila A. v. Whiteman, 259 Kan. 549 (1996)(Lower court ruling: “[T]here is no inherent constitutional right of a child in foster care to a normal childhood, sibling visitation, case planning, reunification plan, stable placement, adequate social workers, or placement in the least restrictive environment.”); Del A. v. Roemer, 777 F.Supp. 1297, 1318 E.D.La. 1991)(“ There is no clearly established right to a stable foster home environment. . . . [C]hildren in State custody also have no right to be placed in the least restrictive foster care arrangement.”); Joseph A. v. New Mex. Dept. of Human Servs., 575 F.Supp. 346, 352-53 (D.N.M. 1982) ( There is no constitutional right to a permanent, stable adoptive home nor is there an abstract constitutional right to access to the “least restrictive setting.”); B.H. v. Johnson. 715 F.Supp. 1387, 1397-98 (N.D. Ill. 1989)(“[P]laintiffs’ claims to parental and sibling visitation, stable placements in the least restrictive setting possible, and adequate caseworkers are not cognizable under the substantive due process reach of the Fourteenth Amendment, because the Fourteenth Amendment does not

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mandate an optimal level of care and treatment.”); Clark K v. Guinn, 2007 W.L. 1435428 (D.Nev. 2007)(Children involuntarily in foster care “do not . . . have a substantive due process right ‘not be retained in custody longer than is necessary . . . ,’ nor do Plaintiffs have a substantive due process right ‘to be placed in the least restrictive placement based on the foster child’s needs); Charlie H. v. Whitman, 83 F.Supp.2d 476, 507 (D.N.J. 2000)(The right to freedom from harm does not entitle a plaintiff to an “optimal level of care and treatment.” Nor are there rights to “not remain in state custody unnecessarily” or to be “housed in the least restrictive, most family-like placement.”). Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (2d Cir. 1984) (No absolute right to access to least restrictive setting in state foster care program.); Bell v. Milwaukee, 746 F.2d 1205, 1246 (7th Cir.1984) (no sibling association rights); Hanson v. Clarke County, 867 F.2d 1115, 1120 (8th Cir.1989) ( “While it is clear that the Iowa statutory scheme creates a substantive right to appropriate care and treatment, neither state law nor the liberty interests explicated in Youngberg create a substantive due process right to optimal care and treatment.”); Child v. Beame, 412 F.Supp. 593, 602 (D.C.N.Y. 1976)(Foster care case—“[A]ccepting the importance and social desirability of a permanent and stable home and family life for a child does not mandate a federal constitutional right thereto in the child’s favor.”); Baby Neal v. Casey, 821 F.Supp. 320, 337 (E.D.Pa. 1993) (“Plaintiffs’ claim to the least restrictive, most appropriate placements is simply a request for ‘optimal’ treatment while in the custody of the state.” The state “is not required under the Constitution to provide [foster children] with an optimal level of care and treatment.”); MD, 294 F.R.D. at 5455.
The constitutional right likewise does not need to be extended to include an unlimited “right to be free from an unreasonable risk of harm” in foster care. Neither the United States

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Supreme Court nor the Fifth Circuit (in Hernandez or elsewhere) has recognized such a right. Defendants contend, and the Court is persuaded, that no such right should be recognized in the present case because: “As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decision making in this uncharted area are scarce and open-ended.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992); accord, Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990)(“Courts must resist the temptation to augment the substantive reach of the Fourteenth Amendment . . . .”).
The Court is concerned that recognition of such a right that is open-ended as to the “harm” it could reach is vague, untenable and presents a serious risk of being read far read far more broadly than the right to personal security and reasonably safe living conditions that the Fifth Circuit has recognized. Plaintiffs have offered the Court no definition or reasonable limitation on the harm such a right would reach. The Court holds that there is no reason in the present case to expand substantive due process to include freedom from an unreasonable risk of undefined, open-ended “harm,” such as Plaintiffs seek. If Plaintiffs are indeed exposed to imminent, actionable harm (e.g., denial of a right to personal security and reasonably safe living conditions), their remedy lies in traditional injunctive relief. There would be no need to expand substantive due process and the case can be resolved on existing law. If on the other hand, Plaintiffs cannot prove imminent, actionable harm caused by the Defendants, then substantive due process should not be expanded to reach a more nebulous, open-ended notion of “harm,” and to create corresponding, expanded duties to prevent same. VIII. Plaintiffs Have Failed to Prove a Breach of Duty.
Plaintiffs have not demonstrated that DFPS’ conservatorship caseworker caseloads will imminently cause all children in PMC to be denied their right to personal security and reasonably

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safe living conditions and that each child will suffer cognizable harm as a result thereof. The Court further determines that Plaintiffs have not demonstrated that DFPS’ conservatorship caseworker caseloads cause all children in PMC to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions. The same facts that support the Court’s conclusions that Defendants did not shock the conscience, did not act with deliberate indifference, or did not abdicate professional responsibility with respect to this issue further support the Court’s conclusion that there has been no breach of the constitutional duty.
Plaintiffs have not demonstrated that inadequate regulatory oversight by DFPS will imminently cause all children in PMC who are in licensed facilities to be denied their right to personal security and reasonably safe living conditions and that each child will suffer cognizable harm as a result thereof. The Court further determines that Plaintiffs have not demonstrated that inadequate regulatory oversight by DFPS causes all children in PMC who are in licensed facilities to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions. The same facts that support the Court’s conclusions that Defendants did not shock the conscience, did not act with deliberate indifference or did not abdicate professional responsibility with respect to this issue further support the Court’s conclusion that there has been no breach of the constitutional duty.
Plaintiffs have not demonstrated that DFPS’ placement array will imminently cause all children in PMC to be denied their right to personal security and reasonably safe living conditions and that each child will suffer cognizable harm as a result thereof. The Court further determines that Plaintiffs have not demonstrated that DFPS’ placement array causes all children in PMC who are in licensed facilities to suffer an unreasonable risk of actual harm due to a

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denial of their right to personal security and reasonably safe living conditions. The same facts that support the Court’s conclusions that Defendants did not shock the conscience, did not act with deliberate indifference or did not abdicate professional responsibility with respect to this issue further support the Court’s conclusion that there has been no breach of the constitutional duty.
Plaintiffs have not demonstrated that DFPS’ placement of Basic Service Level children in General Residential Operations will imminently cause all such children to be denied their right to personal security and reasonably safe living conditions and that each child will suffer cognizable harm as a result thereof. The Court further determines that Plaintiffs have not demonstrated that DFPS causes all Basic Service Level PMC children placed in a General Residential Operation to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions. The same facts that support the Court’s conclusions that Defendants did not shock the conscience, did not act with deliberate indifference or did not abdicate professional responsibility with respect to this issue further support the Court’s conclusion that there has been no breach of the constitutional duty.
Plaintiffs have not demonstrated that DFPS’ placement of children in Foster Group Homes will imminently cause all such children to be denied their right to personal security and reasonably safe living conditions and that each child will suffer cognizable harm as a result thereof. The Court further determines that Plaintiffs have not demonstrated that DFPS causes all children placed in Foster Group Homes to suffer an unreasonable risk of actual harm due to a denial of their right to personal security and reasonably safe living conditions resulting from lack of a wake staff, inadequate foster parent training, and inadequate access to medical services. The same facts that support the Court’s conclusions that Defendants did not shock the conscience, did

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not act with deliberate indifference or did not abdicate professional responsibility with respect to this issue further support the Court’s conclusion that there has been no breach of the constitutional duty. IX. Class Certification is Improper.
A certification order may be altered or amended as the case unfolds. Fed. R. Civ. PO. 23(c)(1)(C); Comcast v. Behrend, 133 S.Ct. 1426, 1437 fn. (2013). The Court concluded class certification is improper in this case for the following reasons:
Plaintiffs have not demonstrated that class certification is proper for the General Class because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific.
Plaintiffs have not demonstrated that class certification is proper for the Licensed Foster Care Subclass because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific.
Plaintiffs have not demonstrated that class certification is proper for the Foster Group Home Subclass because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific.

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Plaintiffs have not demonstrated that class certification is proper for the Basic GRO Subclass because individualized issues among the class members defeat commonality, all members have not suffered the same injury, the claims of the Named Plaintiffs are not typical of those of the class, and the proposed final injunctive relief is neither appropriate respecting the class as a whole nor adequately specific. X. Plaintiffs Lack of Standing.
The Court makes the following conclusions of law based on Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 111 (1983); and, James v. City of Dallas, 254 F.3d 551, 553 (5th Cir. 2001).
Named Plaintiffs who are representatives of the General Class and all members of the General Class lack standing because their claims fail to meet the requirements of: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the standing requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical.
Named Plaintiffs who are representatives of the Licensed Foster Care Subclass and all members of that class lack standing because their claims fail to meet the requirements of: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the standing requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical.
Named Plaintiffs who are representatives of the Foster Group Home Subclass and all members of that class lack standing because their claims fail to meet the requirements of: (1) an

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injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical.
Named Plaintiffs who are representatives of the Basic GRO Subclass and all members of that class lack standing because their claims fail to meet the requirements of: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and Defendants’ conduct; and (3) a likelihood that judicial relief will redress the injury. They also fail to meet the standing requirement for injunctive relief that the alleged injury is imminent or real and immediate, not merely conjectural or hypothetical. XI. Abstention is Appropriate.
Because the Middlesex elements for Younger abstention are present here, the Court will abstain from reviewing Plaintiffs’ claims. Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Texas Ass’n of Business v. Earle, 388 F.3d 515, 519 (5th Cir. 2004).
Because the relief Plaintiffs seek will interfere with the ongoing efforts of the State to create policy improving Texas’ foster care system, the Court will abstain from reviewing Plaintiffs’ claims under the Burford abstention doctrine. Burford v. Sun Oil Co., 310 U.S. 315 (1943); Baran v. Port of Beaumont Navigation Dist. of Jefferson City, 57 F.3d 436 (5th Cir. 1995).
XII. Other Conclusions of Law.

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In making findings of fact and mixed questions of law and fact, especially with respect to
whether Plaintiffs have met their burden of proof on causation, the Court has been mindful of
guiding principles, including:
The post hoc ergo propter hoc fallacy assumes causality from temporal sequence. It literally means “after this, because of this.” BLACK’S LAW DICTIONARY 1186 (7th ed. 1999). It is called a fallacy because it makes an assumption based on the false inference that a temporal relationship proves a causal relationship. . . . Any scientist or statistician must acknowledge . . . that correlation is not causation. . . . It is axiomatic that causation testimony is inadmissible if an expert relies upon studies or publications, the authors of which were themselves unwilling to conclude that causation has been proven.
Huss v. Gayden, M.D., 571 F.3d 442, 459 (5th Cir. 2009).
Inferences drawn from circumstantial evidence must be reasonable inferences. . . . . . . An expert’s opinion must be supported to provide substantial evidence; “we look to the basis of the expert’s opinion, and not the bare opinion alone,” . . . “A claim cannot stand or fall on the mere ipse dixit of a credentialed witness.”
Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005)(internal citations omitted).
Opinion testimony like that offered in this case—that something could be, or is possible, or might have happened—cannot support a judgment.
Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456 (Tex. 1992).
On the issue of the fact of causation, ... [the one bearing the burden of proof by a preponderance of the evidence] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that [the causation exists]. A mere possibility of such causation is not enough;[ ] and when the matter remains one of pure speculation or conjecture,[ ] or the probabilities are at best evenly balanced, [ ] it becomes the duty of the court to direct a verdict for the defendant. Where the conclusion is not one within the common knowledge of laymen, expert testimony may provide a sufficient basis for it, [ ] but in the absence of such testimony it may not be drawn.

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William L. Prosser, The Handbook of the Law of Torts (2nd ed. 1955), § 42 (Causation and Joint Torts), at 222 (citations omitted) (emphasis added), cited in Matter of Bell Petroleum Services, Inc., 3 F.3d 889 (5th Cir. 1993)(dissent).

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 Case 2:11-cv-00084 Document 228 Filed in TXSD on 11/25/13 Page 1 of 4 Clerk, u.s. District Court 8outhem District of Texas FILED NOV 2 5 2013

IN THE UNITED STATES COURT OF APPEALS o.'itdJ.Btadkly.Cierkofeourt

FOR THE FIFTH CIRCUIT

UnitedStatesCourtofAppeals Fifth Circuit

FILED

No. 13-90045

November 19, 2013 Lyle W. Cayce

Clerk

M.D., by next of friend Sarah R. Stukenberg; Z.H., by next of friend Carla B. Morrison; S.A., by next of friend Javier E. Solis; A.M., by next of friend Jennifer Talley; J.S., by next of friend Anna J. Ricker; K.E., by next of friend John W. Cliff, Jr.; H.V., by next of friend Anna J. Ricker; P.O., by next of friend Anna J. Ricker; L.H., by next of friend Estela C. Vasquez; C.H., by next offriend Estela C. Vasquez; S.S., by next of friend Estela C. Vasquez; A.R., by next of friend Tom McKenzie, individually and on behalf of all others similarly situated,

Plaintiffs-Respondents
v.

GOVERNOR RICK PERRY, in his official capacity as Governor of the State of Texas; KYLE JANEK, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; JOHN J. SPECIA, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,

Defendants-Petitioners

Petition for Permission to Appeal under Fed. R. Civ. P. 23(£) from the United States District Court for the Southern District of Texas USDC No. 2:11-CV-84
Before JONES, CLEMENT, and PRADO, Circuit Judges.

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No. 13-90045 PER CURIAM:*
On August 27, 2013, the district court certified a class of 12,000 children in the Texas foster care system in a suit alleging systemic violations of the children's rights and seeking broad, affirmative injunctive relief. On September 11, 2013, Defendants-Petitioners, the State of Texas ("the State"), filed a petition for permission to appeal the class certification order under Federal Rule of Civil Procedure 23(£). Plaintiffs-Respondents moved to dismiss the petition as untimely, arguing the petition was filed one day late. The State then filed a motion to suspend Federal Rule of Appellate Procedure 25(a)(2)(A) and Fifth Circuit Rule 26.1, which pertain to the circumstances under which a filing is considered timely. For the reasons stated below, we dismiss this petition as untimely.
Rule 23(£) provides that "[a] court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered." Fed. R. Civ. P. 23 (emphasis added). The fourteenday time limit for filing a Rule 23(£) petition is "strict and mandatory." 1 Harper v. Am. Airlines, Inc., 371 F. App'x 511, 512 (5th Cir. 2010) (per curiam) (unpublished) (citing Gutierrez v. Johnson & Johnson, 523 F.3d 187, 192 (3d
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 Here, where Plaintiffs-Respondents have properly raised a timeliness challenge to the Rule 23(f) petition, we do not need to decide whether the timeliness requirement is jurisdictional or merely a claims-processing rule. See Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam) (holding a timeliness requirement under the Federal Rules of Criminal Procedure nonjurisdictional). Even if we assume Rule 23(f) were an "inflexible" claimprocessing rule, we would still "assure relief to a party properly raising [the rule]." Id. In other words, "[e]ven if not jurisdictional, a deadline is mandatory in the sense that if invoked by a party in timely fashion the court is bound by it." McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 485 (7th Cir. 2012).
2

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No. 13-90045 Cir. 2008), and Jenkins u. BellSouth Corp., 491 F.3d 1288, 1290 (11th Cir. 2007)); see also 3 William B. Rubenstein, Newburg on Class Actions§ 7:51 (5th ed. 2013) ("[C]ourts of appeals have applied [Rule 23(f)'s time limit rule] strictly."); 2 Joseph M. McLaughlin, McLaughlin on Class Actions § 7:1 (9th ed. 2012) (collecting cases). 2 As this Court has previously stated, "Rule 23(£) permits the court of appeals to accelerate appellate review; but to ensure that there is only one window of potential disruption, and to permit the parties to proceed in confidence about the scope and stakes of the case thereafter, the window of review is relatively small." Gene & Gene, L.L.C. u. BioPay, L.L.C., 624 F.3d 698, 703 (5th Cir. 2010) (quoting McNamara u. Felderhof, 410 F.3d 277, 281 n.9 (5th Cir. 2005)).
Here, the State missed its narrow window to seek review. Pursuant to Federal Rule of Civil Procedure 23(£), it had fourteen days from the issuance of the certification order on August 27 in which to file. Under Federal Rule of Appellate Procedure 25(a)(2)(A) and Fifth Circuit Rule 26.1, this Court must actually receive the petition in order for the filing to be timely. Thus, this Court had to actually receive the filing by September 10. This Court did not receive the filing until September 11.
The State attempts to avoid the consequences of its untimely filing by urging us to suspend the rules that define when a petition is timely filed. The State asks us to use our power under Federal Rule of Appellate Procedure 2 to suspend these rules. It further contends that suspending the rules that state the proper method for timely filing does not amount to an extension of time to file. We find these arguments untenable.
2 Rule 23(f) was amended effective December 1, 2009 to provide for a fourteen-day deadline including Saturdays, Sundays, and legal holidays. Before the amendment, the rules imposed a ten-day deadline, excluding Saturdays, Sundays, and legal holidays. See Harper, 371 F. App'x at 512 n.2. The amendment does not change our analysis or reliance on preamendment cases.
3

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No. 13-90045 Rule 2 does not give us discretion to suspend the rules in this case. Rule 2 states"[o]n its own or a party's motion, a court of appeals may-to expedite its decision or for other good cause-suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b)." Fed. R. App. P. 2 (emphasis added). Rule 26(b), in turn, provides that "the court may not extend the time to file ... a petition for permission to appeal." Fed. R. App. P. 26(b)(l) (emphasis added). Read together, Rules 2 and 26(b) plainly forbid us from extending the time for a petition for permission to appeal. Suspending the rules that define when a petition is timely filed would, in effect, extend the time to file the Rule 23(£) petition. Therefore, we DENY the Petitioners' opposed motion to suspend Federal Rule of Appellate Procedure 25(a)(2)(A) and 5th Circuit Rule 26.1. We further GRANT the Respondents' opposed motion to dismiss and DISMISS the petition for permission to appeal under Federal Rule of Civil Procedure 23(£).
4

 
 Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

Page 1 of 8
United States District Court Southern District of Texas
ENTERED
March 21, 2016
David J. Bradley, Clerk

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
GREG ABBOTT, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:11-CV-00084 § § § §

APPOINTMENT ORDER

Federal Rule of Civil Procedure 53(a)(1)(C) provides that a court may appoint a master to

address “post-trial matters that cannot be effectively and timely addressed by an available district

judge or magistrate judge of the district.” The Court reiterates its earlier findings that the post-

judgment matters in this case cannot be addressed effectively and timely by the Court. (D.E. 368

at 245-46). The issues in this case are especially sophisticated, wide-ranging, and protracted,

involving complicated facts and administrative problems in crafting and implementing the

injunction, which will be difficult to evaluate, quantify, and administer. Resolution of these

issues will require highly specialized and technical knowledge. A Special Master who is an

expert in a field relevant to foster care systems is better suited to craft, monitor, and implement

the necessary reforms.

The Court appoints co-Special Masters Francis McGovern and Kevin Ryan pursuant to

Federal Rule of Civil Procedure 53 and the Court’s inherent powers. The duties and terms of the

Special Masters will be as followed:

(1) The role of the Special Masters is to effectuate the Court’s Memorandum Opinion and

Verdict of the Court (“Memorandum Opinion”) (D.E. 368) by formulating, monitoring,

and creating an Implementation Plan in conjunction with the Court so as to administer

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Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16 Page 2 of 8
the Memorandum Opinion by bringing the State into compliance with constitutional standards of care. (2) The Special Masters, as agents of the Court, shall function as the Court’s representative and not on behalf of any party. (3) The Special Masters shall at all times observe high standards of conduct so as to preserve the integrity, dignity, and independence of the Court and the judicial system. In this regard, the Special Masters shall at all times ensure compliance with the ethical rules for special masters, including, but not limited to, 28 U.S.C. § 455, Canon 1 of the Code of Conduct for United States Judges, and Canon 1 of the Code of Conduct for Judicial Employees. (4) The Special Masters shall proceed with all reasonable diligence and shall commence their duties no later than April 1, 2016. (5) The parties may file written objections to any submission relating to the Special Masters. The written objections must be electronically filed no later than 15 days after a copy is served. All objections must be in writing and submitted within this time period, or else they are waived. (6) Within 180 days of the present Order, the Special Masters must submit an Implementation Plan to reform Texas’s foster care system, which addresses the constitutional deficiencies in every identified area of the Texas Department of Family and Protective Services. (7) Within 210 days of the present Order, the Court will hold a hearing on the Implementation Plan where it will hear the parties’ objections, and decide which, if any, provisions to accept.
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Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16 Page 3 of 8
(8) In crafting the Implementation Plan, the Special Masters and their designees shall have access to all relevant information, records, personnel, and reports, and shall have the authority to require reports that would be helpful, unless the information is protected by privileges, other limitations on disclosure, or any other provision of the Federal Rules of Civil Procedure. The Special Masters shall assure that the Plaintiffs and Defendants have a full opportunity to consult and be involved with the development of the Implementation Plan, though the Special Masters must ultimately be guided by the Goals listed in the Memorandum Opinion. (D.E. 368 at 248-54). The provisions in the Implementation Plan will be viewed as recommendations. If the Court finds any parts lacking or any constitutional violation unaddressed, the Court will ask the Special Masters to present additional provisions at a later date. The Special Masters shall file the Implementation Plan with the Court, attaching a certificate of service to the parties. All submissions of the Special Masters shall be electronically filed with the Court.1
(9) The Implementation Plan shall include recommendations to effectuate all of the Goals listed in the Court’s Memorandum Opinion, (D.E. 368 at 248-54), as well as any other recommendation the Special Masters deem is necessary to effectuate the Order of the Court.
(10) The Implementation Plan shall also include: (a) Implementation Dates. The Plan shall contain final implementation dates by which each provision will be fully implemented. The plan shall also include interim dates, prior to the final implementation date, by which each provision
1 The Special Masters shall seek access to using the Court’s Case Management/Electronic Case Files (CM/ECF) system.
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Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16 Page 4 of 8
shall be partially implemented, and shall specify the degree of implementation required by each of the interim implementation dates for each provision. Provisions should be implemented at the earliest time practicable. Any need to prioritize implementation will be motivated by which provisions best address the State’s constitutional violations. (b) Implementation Steps, Processes, and Tasks. The Plan shall specify the steps and tasks necessary to achieve full implementation and to meet the interim and final implementation dates. The Plan shall designate timelines by which the steps and tasks are to be accomplished and shall designate appropriate staffing levels and personnel to assure timely implementation of the Plan. The Plan shall also identify who shall be responsible for the steps and tasks, including outside contractors. This portion of the Implementation Plan shall be updated every six months, and the updates shall list tasks accomplished and additional steps and tasks that may have been identified as additionally necessary to achieve full implementation. The updates shall include timelines for interim and full implementation, as well as the designation of personnel for these additional steps and tasks. (11) The Court will review the Special Masters’ recommendations de novo. (12) After the Implementation Plan hearing, the Special Masters shall submit a Progress Report every 180 days concerning the status and progress made by the Defendants. As part of each Progress Report, and at other times as the Special Masters deem necessary, the Special Masters may make recommendations to the Court regarding the need for and nature of additional measures to enforce the Memorandum Opinion and any
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Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16 Page 5 of 8
subsequent orders. Any additional recommendation must be accompanied by proposed implementation dates, steps, processes, and tasks as detailed in (11)(a) and (11)(b). (13) Following the filing of any Progress Report or additional recommendation, the parties shall appear at a status conference, at which they will be given the opportunity to address the Special Masters’ findings and recommendations. The status conference will be held 30 days after the Special Masters’ submission. If the 30th day falls on a Saturday, Sunday, or legal holiday, the status conference will be held on the first day that is not a Saturday, Sunday, or legal holiday, pursuant to Federal Rule of Civil Procedure 6. (14) The Special Masters and their designees may have unlimited communications with the parties and their staff in aid of this Order’s goals. (15) The Special Masters may require additional reports or studies from the parties at any time. (16) There shall be no ex parte communication between the Special Masters and the Court. If communication with the Court becomes necessary, the Court will hold a phone conference with at least one of the Special Masters and both parties to resolve the matter. (17) The Special Masters shall not communicate with the media without application to and approval from the Court. (18) The Special Masters shall not communicate with any legislative or investigative body without application to and approval from the Court. (19) The Special Masters shall not make public comments on the merits of this action.
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Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16 Page 6 of 8
(20) The Special Masters shall not disclose confidential information received in the course of their official duties without application to and approval from the Court.
(21) All restrictions on disclosure continue to apply after the conclusion of the Special Masters’ service, unless modified by the Court.
(22) The Special Masters must maintain, but not file, the following records, which will be accessible to all parties: (a) Informal notes regarding any matter. (b) Documents received by the Special Masters from the parties. (c) A complete record of the evidence considered by the Special Masters in crafting recommendations.
(23) The Special Masters must maintain and file the following records: (a) All billing records. These records shall be filed under seal. (b) Formal written reports or recommendations regarding any matter. (c) Documents created by the Special Masters that are docketed in the Court.
(24) Compensation: (a) The Court has considered the fairness of imposing the likely expenses on the parties and has taken steps to protect against unreasonable expense or delay. The Defendants shall pay the Special Masters’ compensation of $345.00 per hour and reasonable expenses. Payment shall be made directly to the Special Masters. Reasonable expenses include, but are not limited to, transcriptions, photocopy fees, travel and attendant expenses, and mail and delivery costs. Reasonable expenses are not included in the Special Masters’ annual salary.
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Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16 Page 7 of 8
(b) If the Special Masters reasonably find that additional services are required, the Special Masters shall apply to the Court for the approval of these expenses.
(c) The Special Masters may submit an application to increase the compensation, should circumstances so require.
(d) The State shall pay the Special Masters their compensation on a monthly basis. (e) The Special Masters shall submit bills for their compensation and reasonable
expenses to the State, as well as file these bills under seal with the Court, on a monthly basis. The State shall approve payment within 30 days of receipt of the monthly bill. If the State disputes a bill, Defendants shall file its objections with the Court no later than 15 days after receiving the bill and/or request additional clarifying information or documentation to the Special Masters, with a copy served on Plaintiffs. The Special Masters shall have 15 days in which to respond and to provide the additional information and/or documentation requested, with a copy served on Plaintiffs. If within 45 days of presentation of the Special Masters’ bill there is still a dispute, the parties shall submit the dispute to the Court for resolution. At this time, Plaintiffs, Defendants, and the Special Masters shall file a joint statement regarding the disputed payment. (25) The Special Masters do not have the authority to impose sanctions. The Special Masters may, however, submit recommendations to the Court that sanctions should be imposed against any party or non-party, along with an explanation of why the sanction is appropriate. (26) The Special Masters shall not accept any gifts or favors from the parties, de minimus or otherwise.
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Case 2:11-cv-00084 Document 379 Filed in TXSD on 03/21/16 Page 8 of 8 (27) The Special Masters shall serve until the Court determines, upon Defendants’
application, that the Special Masters are no longer necessary. (28) The Court maintains the authority to revise this Order sua sponte, or upon application
of the parties or the Special Masters. (29) The parties are ORDERED to cooperate completely and in good faith with the Special
Masters in all matters, pursuant to the foregoing provisions. In this regard, if to accomplish their duties the Special Masters must undertake necessary measures not specifically referred to in the preceding provisions, the parties shall not object or resist merely because the measures were not specified. (30) Jurisdiction of this action is retained by the Court. SIGNED and ORDERED this 21st day of March, 2016.
___________________________________ Janis Graham Jack
Senior United States District Judge
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 Case: 16-40023 Document: 00513431475 Page: 1 Date Filed: 03/21/2016

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

March 21, 2016
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 16-40023 M.D., et al v. Greg Abbott, et al USDC No. 2:11-CV-84

Enclosed is an order entered in this case.

Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Christina A. Gardner, Deputy Clerk 504-310-7684
Mr. Thomas A. Albright Mr. Michael Kenneth Bartosz Mr. David Allen Dodds Ms. Dori Kornfeld Goldman Mr. Lonny Jacob Hoffman Mr. Joseph David Hughes Mr. Philip Lionberger Ms. Marcia Lowry Mr. Barry Frank McNeil Mr. Reagan William Simpson Mr. Christian J. Ward Mr. Richard Paul Yetter

Case: 16-40023 Document: 00513431476 Page: 1 Date Filed: 03/21/2016
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________
No. 16-40023 ___________________
M. D., by next friend Sarah R. Stukenberg; D. I., by next friend Nancy G. Pofahl; Z. H., by next friend Carla B. Morrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer Talley; J. S., by next friend Anna J. Ricker; K. E., by next friend John W. Cliff, Jr.; D. P., by next friend Karen J. Langsley; T. C., by next friend Paul Swacina,
Plaintiffs - Appellees
v.
GREG ABBOTT, in his official capacity as Governor of the State of Texas; CHRIS TRAYLOR, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; JOHN J. SPECIA, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,
Defendants - Appellants
_______________________
Appeal from the United States District Court for the Southern District of Texas, Corpus Christi _______________________
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:
The only matter before us at this time is whether to grant a stay of the district court’s order. This case is a class action filed under 42 U.S.C. § 1983 on behalf of foster children in the Texas foster care system (the “class

Case: 16-40023 Document: 00513431476 Page: 2 Date Filed: 03/21/2016
members”) against various Texas state officials (the “State”). The district court concluded the State violated the class members’ constitutional rights, and ordered injunctive relief. The State appealed. The district court denied the State’s motion to stay pending appeal. The State then filed a motion with this court that also sought a stay. We construe narrowly the immediate injunctive relief ordered and DENY a stay.
FACTS AND PROCEDURAL BACKGROUND Among the allegations in the class members’1 complaint is that the State violated their substantive due process rights by failing to keep them “reasonably safe from harm while in government custody” and denying them “the right to receive the most appropriate care, treatment, and services.” Following a bench trial, the district court concluded that the State had violated the class members’ constitutional rights. M.D. v. Abbott, No. 2:11-CV-84, 2015 WL 9244873 (S.D. Tex. Dec. 17, 2015). The district court said an overhaul of the foster care system’s policies and procedures was required, and it identified goals that needed to be met. Id. at *106–12. A special master, appointed by the district court with input from the parties, is to make recommendations as to how to reach those goals. Id. at *107–08. Additionally, the district court mandated an immediate end to the “unsafe placement[]” of children, including ceasing assigning children to “foster group homes that lack 24-hour awakenight supervision.” Id. at *107. The State now seeks a stay from this court under Federal Rule of
1 The district court initially certified a class that included all children who were or would in the future be in Texas’s foster care system. On appeal, we vacated the certification. M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 841–49 (5th Cir. 2012). On remand, the district court recertified a general class (all children within the system) and two subclasses (children in foster care and children in foster group homes).
2

Case: 16-40023 Document: 00513431476 Page: 3 Date Filed: 03/21/2016
Appellate Procedure 8(a)(2). Additionally, the class members filed an unopposed motion to seal records in Volume II of the Appendix, which would be consistent with the documents’ sealed status in district court proceedings.
DISCUSSION We consider four factors when ruling on a motion to stay an injunction pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013). “A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Id. (quotation marks omitted). The applicant “bears the burden of showing that the circumstances justify an exercise of” our discretionary power to stay a case. See Nken v. Holder, 556 U.S. 418, 433–34 (2009). Here, the class members argue that the breadth of the district court’s injunction has not yet, except in one particular, been determined. A special master will be appointed to develop recommendations for implementing the goals outlined in the district court opinion. The district court then must accept those recommendations before any substantive changes to the foster care system are implemented. Based on the need for these future rulings by the district court, class members argue that the only injunctive relief ordered by the district court that is immediately appealable under 28 U.S.C. § 1292(a)(1) is the mandate to end “unsafe placements.” An injunction must provide “explicit notice of the precise conduct that is outlawed.” See Alabama Nursing Home Ass’n v. Harris, 617 F.2d 385, 387–88 (5th Cir. 1980); FED. R. CIV. P. 65(d)(1)(C). Otherwise, it may be deemed impermissibly vague. Harris, 617
3

Case: 16-40023 Document: 00513431476 Page: 4 Date Filed: 03/21/2016
F.2d at 387–88. Thus, we construe the district court’s mandate narrowly, as the class members argue it should be construed, as only precluding placements in foster group homes that lack 24-hour supervision.
Because the prohibition on unsafe placements is the only portion of the order currently appealable, it is the only portion of the district court’s order that we could stay. See Sierra Club v. Clifford, 257 F.3d 444, 446 (5th Cir. 2001) (reviewing an order of reference after the district court had accepted the special master’s recommendations)2; see also 9C ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2615 (3d ed.) (orders of reference to a special master, and procedural direction given to a special master during the course of a reference, are not immediately appealable).3
Having construed the injunction, we now consider whether it should be stayed. The record is vast, but we find evidence supporting the grave problems arising from the lack of 24-hour supervision in foster group homes. As to that claim only, we find that the State has not made a showing of a likelihood of success in overturning the injunction. See Griffith v. Johnston, 899 F.2d 1427, 1439–40 (5th Cir. 1990) (recognizing the “special relationship” between the state and children under its care can trigger substantive due process concerns);
2 In Sierra, we provided “that an aggrieved party may seek [immediate] review of an order of reference” with the district court’s permission under 28 U.S.C. § 1292(b) or by petitioning for writ of mandamus, “but the party is not required to do so because such order . . . may be reviewed on appeal.” 257 F.3d at 448. Here, the district court did not certify the reference as appealable under Section 1292(b) and the State did not petition this court for writ of mandamus.
3 Several other circuits have held the same. See, e.g., Bogard v. Wright, 159 F.3d 1060, 1063 (7th Cir. 1998) (“The appointment of a special master . . . is deemed a procedural order . . . [that has] the form of an injunction [but is] . . . not classified as [an] injunction[] for purposes of section 1292(a)(1).”); Jackson by Jackson v. Fort Stanton Hosp. & Training Sch., 964 F.2d 980, 988 (10th Cir. 1992) (recognizing that the preparation and submission of remedial plans are not appealable under Section 1292(a)(1), but the portion of the order that clearly contains injunctive relief is appealable); Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089, 1096 n.6 (3d Cir. 1987) (noting that an appeal of a special master’s appointment “may . . . ripen[] with the entry of the district court’s final order, thereby providing [the court] with jurisdiction”); Thompson v. Enomoto, 815 F.2d 1323, 1326–27 (9th Cir. 1987) (appointment of a master pursuant to an original consent decree does not have the practical effect of granting or denying an injunction).
4

Case: 16-40023 Document: 00513431476 Page: 5 Date Filed: 03/21/2016
Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880– 81 (5th Cir. 2004) (discussing the government’s obligation to provide its juvenile wards “personal security and reasonably safe living conditions”). We in no way bind a subsequent merits panel with respect to this conclusion.
As to the balance of harms, the State rests its argument primarily on supposed irreparable harm resulting from being ordered to pay for the special master’s work. The State argues that if the district court’s appointment of a master is later set aside, it will not be able to recoup those costs. Financial harm, though, is outweighed by the harm to the class members and public interest if we stay the case. A stay would allow the State to continue to make apparently dangerous placements in foster group homes that lack 24-hour supervision. We agree with other circuits that “where the value of the constitutional rights to be protected far outweigh[] administrative costs that might be incurred in formulating a remedy, the lower court proceedings . . . should continue.” See Reed v. Rhodes, 549 F.2d 1050, 1052 (6th Cir. 1976) (considering a stay in school desegregation case).
The State also argues that the injunction impairs its ability to carry out its policies, including placing siblings in the same foster group home. The class members correctly note that the State can still place children in the same group home provided that home has 24-hour supervision.
The public interest also supports allowing the special master to proceed. Because the safety and rights of vulnerable children are at stake, and the immediate injunctive relief ordered is concentrated on a single, narrow mandate, the Planned Parenthood factors weigh in favor of denying a stay.
IT IS ORDERED that the State’s motion to stay pending appeal is DENIED. IT IS FURTHER ORDERED that the class members’ unopposed motion to place Volume II of the Appendix under seal is GRANTED.
5

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

United States District Court Southern District of Texas
ENTERED
January 09, 2017
David J. Bradley, Clerk

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
GREG ABBOTT, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:11-CV-84 § § § §

INTERIM ORDER REGARDING SPECIAL MASTERS’ RECOMMENDATIONS

Before the Court are the Special Masters’ Recommendations (docket entry #471)(the

“Recommendations”) prepared at the Court’s direction by Kevin Ryan and Francis McGovern

(the “Special Masters”) , the Objections filed by the State of Texas ( the “State” or “DFPS”), and

the Responses filed by the Plaintiffs. At the outset, the Court acknowledges the tireless and

extraordinary work of the Special Masters in preparing the Recommendations and expresses

gratitude for their service. The Court commends all parties to the litigation for their cooperation

with the Special Masters. In particular, the State of Texas is acknowledged for its many efforts to

furnish information, studies and data to the Special Masters. The Court is unable to enter a final

order as further explained herein and therefore enters this interim order.

I. Initial Statement

The Court is aware of the numerous concerns expressed by the public regarding children

in temporary managing conservatorship (“TMC”) and recognizes that more may be done to place

these children back with their families. This class-action suit deals only with the children in

permanent managing conservatorship (“PMC”), who are those children who have transitioned

after 12 to 18 months from temporary managing conservatorship into permanent managing

conservatorship. The history of PMC children is outlined in the Memorandum Opinion and

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Verdict of the Court entered December 17, 2015. (D.E. #368) (the “2015 Order”). A final order cannot be entered because all required information is not yet available nor have measures to correct previous constitutional deficiencies found by the Court been implemented as discussed below. Further studies and consultations between the Special Masters, the Court, and the State are necessary before a final order can be entered. II. Background and Procedural History
Plaintiffs are minor children in the Permanent Management Conservatorship (“PMC”) of the Texas Department of Family and Protective Services (“DFPS”). Plaintiffs filed suit through their next friends on March 29, 2011, seeking injunctive relief against Rick Perry, Governor of Texas; Thomas Suehs, Executive Commissioner of the Texas Health and Human Services Commission;1 and Anne Heiligenstein, Commissioner of DFPS (collectively “Defendants”), in their official capacities.2 (D.E. 1). Shortly thereafter, Plaintiffs filed a Motion for Class Certification. The Court granted their motion, holding that the requirements of Fed. R. Civ. P. 23 had been met. (D.E. 49).
Defendants filed an interlocutory appeal of the class certification to the Fifth Circuit Court of Appeals pursuant to Fed. R. Civ. P. 23(f). (D.E. 63). While the appeal was pending, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In light of Wal-Mart, the Fifth Circuit vacated the class certification order and remanded the case. M.D. ex rel. Stukenberg v. Perry (M.D. I), 675 F.3d 832 (5th Cir. 2012). Plaintiffs filed a second Motion for Class Certification in October 2012. (D.E. 160). After a three-day hearing in January 2013, the Court found that the requirements of Fed. R. Civ. P. 23(a), as explained in Wal-Mart, were
1 The Health and Human Services Commission oversees and administers the agencies in Texas’s Health and Human Services system, which includes DFPS. See Tex. Gov’t Code Ann. § 531.0055. 2 Greg Abbott has since replaced Perry as Governor of Texas, Charles Smith has since replaced Kyle Janek who replaced Suehs as Executive Commissioner of the Health and Human Services Commission, and Henry Whitman, Jr. has replaced John J. Specia, Jr., who replaced Heiligenstein as Commissioner of DFPS.
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satisfied. The Court certified a General Class and three subclasses on August 27, 2013. M.D. v. Perry (M.D. II), 294 F.R.D. 7 (S.D. Tex. 2013). The certified classes are defined as follows:
a. General Class: all children now, or in the future, in the Permanent Managing Conservatorship of the State of Texas;
b. Licensed Foster Care Subclass: all members of the General Class who are now or will be in a licensed or verified foster care placement, excluding verified kinship placements;
c. Foster Group Home Subclass: all members of the General Class who are now or will be in a foster group home; and
d. Basic Care General Residential Operation Subclass: all members of the General Class who are now or will be in a general residential operation and who are or will be receiving solely non-emergency, basic childcare services.
Id. at 67. The Court denied certification of a fourth subclass for children in unverified kinship placements because it lacked adequate representation. Id. at 63. Defendants filed an untimely Petition for Permission to Appeal the Class Certification Order, which the Fifth Circuit dismissed on November 19, 2013. M.D. ex rel. Stukenberg v. Perry, 547 F. App’x 543 (5th Cir. 2013).
The Court entered its Memorandum Opinion and Verdict of the Court on December 17, 2015. (D.E. #368) (the “2015 Order”). The State of Texas appealed the Court’s Original Order and requested a stay pending appeal. This Court denied the State’s request for a stay pending appeal. On March 21, 2016, The Fifth Circuit Court of Appeals also denied a stay pending appeal. The parties did not agree on a special master and therefore, on March 21, 2016, the Court held a hearing to appoint a Special Master. On that same date the Court entered its Appointment Order (D.E. #379) naming co-Special Masters Francis McGovern and Kevin Ryan pursuant to
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Rule 53, F.R.Civ.P. Thereafter, the Court conducted numerous telephonic status conferences with counsel for Plaintiffs, the State of Texas, and the Special Masters. On November 4, 2016, the Special Masters filed their Report and Recommendations (docket #471)(the “Recommendations”).
The State filed its Objections to Special Masters Recommendations on November 21, 2016 (docket #479). The Plaintiffs did not object to the Recommendations (see, D.E. #478). On December 8, 2016, Plaintiffs filed their Response to Defendants’ Objections to Special Master Recommendations (D.E. #484). The Court conducted a telephone conference on December 21, 2016, to hear discussion and clarification on several issues raised by the responses to the Recommendations. Thereafter, Defendants filed their Advisory on December 29, 2016 (D.E. #492), to which Plaintiffs responded on January 3, 2017 (D.E. #494). An additional Advisory was filed by the Special Masters on January 4, 2017. (D.E. #496) III. The State’s Recognition of a Broken System
The State objected to every recommendation of the Special Masters. The Court is aware and respects the State’s inherent right to protect its legal objections to actions taken by this Court. Moreover, the Court has been made aware through various public statements by State actors that many good-faith attempts are being made to improve services to children in permanent managing conservatorship. Further, the Court is aware that the State has expressed many of the same concerns that were expressed in the Court’s Original Order, making it clear that the State has a firm understanding of the dire straits of children in the foster care system. For instance, the Court takes judicial notice3 that on September 6, 2016, Defendant Commissioner
3 Defendants confirmed in their Advisory (D.E. #492) that the public statements attributed to them and other state officials are quoted accurately in Plaintiff’s Response (D.E. #484). The Court notes the State’s objection in its Advisory regarding judicial notice. First, Rule 201, Fed.R.Evid., does not prohibit a court from taking judicial notice of legislative facts, it simply does not govern them. See, Advisory Committee Notes to Rule 201. A court can take
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Whitman submitted a Legislative Appropriation Request for the next two fiscal years. In his
opening Administrator’s Statement, he admits the inadequacy of available placements:
“For a variety of reasons, including population growth, a shift in the needs of children who are entering the foster care system, and ever-increasing health care costs, Texas lacks adequate, high-quality foster care capacity, particularly for highneeds children. Many children suffer from trauma and mental illness, emotional/behavioral health problems, or are medically fragile from what they have experienced. Our system must be strengthened to take special care of these children who through no fault of their own are now the state’s responsibility.”
--LEGISLATIVE APPROPRIATIONS REQUEST, SUBMITTED TO THE GOVERNOR’S OFFICE OF BUDGET, PLANNING & POLICY & THE LEGISLATIVE BUDGET BOARD, FOR FISCAL YEARS 2018 AND 2019 (“LAR 2018-19”), Administrator’s Statement at 5 (p. 16/837 of the pdf), available at https://www.dfps.state.tx.us/About DFPS/Financial and Budget Information/LAR/FY1819/documents/18-19 LAR.pdf.
The Court takes judicial notice4 that on October 12, 2016, Defendant Governor Abbott,
along with Lt. Governor Patrick and Speaker Straus, wrote to Commissioner Whitman
complaining of serious problems at DFPS. “We would be remiss if we did not acknowledge that
quality capacity should be a high priority. It is unacceptable that children are sleeping in Child
Protective Services offices. We also will not tolerate inferior residential foster care operations.
The state’s residential providers must be held to the highest standards while caring for our most
vulnerable or no longer operate in our system.” Letter from Gov. Abbott, et al., Oct. 12, 2016, at
2, available at http://gov.texas.gov/files/pressoffice/DFPS Whitman 10122016.pdf. On October
judicial notice of legislative facts without having to satisfy any of the requirements of Rule 201. Id., see also, U.S. v. Bowers, 660 F.2d 527,530-31 (5th Cir. 1981)(taking judicial notice that land was property of the federal government under its jurisdiction); Allison v. Froehike, 470 F.2d 1123, 1127 (5th Cir. 1972)(taking judicial notice of wildlife information). Second, the fact that a statement of which the Court takes judicial notice was made to the Texas Legislature does not necessarily make it a “legislative fact”. Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.” U.S. v. Gould, 536 F.2d 216, 220 (8th Cir. 1976). The statements and documents quoted are readily accessible by their citations. Moreover, Defendants’ public statements and filings are regarding specific facts of this case and therefore they are adjudicative facts of which the Court can take judicial notice under Rule 201. The statements quoted are not used herein to prove the truth of what was said, but to establish that the statements were publicly made. The Fifth Circuit recognizes judicial notice of public admissions. See, e.g., In re Hearst Newspapers, L.L.C., 641 F.3d 168, 177 n.3 (5th Cir. 2011); Funk v. Stryker, Corp., 631 F.3d 777, 783 (5th Cir. 2011); Jackson v. Godwin, 400 F.2d 529, 536 (5th Cir. 1968). 4 See, f.n. 3
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20, 2016, Defendant Whitman replied to the joint letter from Defendant Abbott, Lt. Governor Patrick, and Speaker Straus, noting that “CPS has seen an increase in the number of children without placement.” He continued:
“The result of this capacity issue is that the agency must enter into expensive child-specific contracts with providers that are not the best setting for children’s needs, or have children spend extended time sleeping in CPS offices, hotels, or emergency shelters.” --Letter from Commissioner Hank Whitman to Gov. Abbott, et al., Oct. 20, 2016, at 5, available at http://www.lrl.state.tx.us/scanned/archive/2016/32952.pdf. Further, the Court takes judicial notice5 that on October 26, 2016, Commissioner Whitman testified before the Senate Committee on Finance: “Like face-to-face visits, the Agency has struggled to find placements for some of our higher needs children.” Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 3:05:423:06:00, available at http://www.senate. state.tx.us/75r/senate /commit/c540/c540.htm. He further conceded, “[b]ecause of this, some children have had to spend the night in CPS offices,” and he passionately exclaimed: “This is unacceptable to me.” Id at 3:05:51-3:05:54. The Court takes judicial notice6 that on November 24, 2016, Department of Family & Protective Services spokesperson Shari Pulliam wrote, “[w]e are desperate for foster parents all across the state.” And “Children are being placed outside the county they are removed from every day, because we just don’t have the foster care placements in their own counties,” she continued. G. Evans, “Local, State Officials Say Placement Need For Foster Care Rises,” Longview News-Journal, Nov. 27, 2016 (quoting email received from Ms. Pulliam), available at https://www.newsjournal.com/news/2016/nov/27/local-state-officials-say-placement-need-forfoste/. On September 6, 2016, in a Legislative Appropriations Request, Commissioner Whitman
5 See, f.n. 3 6 See, f.n. 3
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conceded that DFPS needs to hire hundreds of additional conservatorship caseworkers. LAR 2018-19, Administrator’s Statement, at 4 (p. 15/837 of pdf), available at https://www.dfps.state.tx.us/About DFPS/Financial and Budget Information/LAR/FY1819/documents/18-19 LAR.pdf. He submitted that the additional caseworkers are needed to allow caseworkers to see children “timely” and “more often.” Id. Unfortunately, his request is still inadequate as it would leave caseloads at a level far in excess of that which is needed to ensure that children do not face an unreasonable risk of harm. Id. (noting that if his request for additional funds is fulfilled, average caseloads per worker would be reduced to 25.47).
The Court takes judicial notice7 that on October 26, 2016, Commissioner Whitman admitted to a Senate Committee that “when caseworkers are overworked, mistakes will happen.” Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 3:04:15, available at http://www .senate.state.tx. us/75r/senate /commit/c540 /c540.htm. He went on to say that conservatorship caseworkers are “stretched…with increasing need.” Id. at 3:05:26-3:05:31. He added with detailed emphasis: “I know these caseworkers have a tough job.... The pay is not worth beans.... And, they are overworked. Something has got to give.” Id. at 3:35:50, 3:36:01-3:36:19.
Further, the Court takes judicial notice8 that on October 27, Commissioner Whitman wrote to Chair Jane Nelson of the Senate Finance Committee: “A glaring cause of this crisis is that our workers are outnumbered by the opponent –child abuse and neglect.” Letter from Commissioner Whitman, Oct. 27, 2016, available at http://www. lrl.state.tx.us /scanned/archive /2016/33026.pdf. Because “Texas children cannot wait for the next biennium to begin, in recent weeks, Governor Abbott, Lt. Governor Patrick, and Speaker Straus directed me to identify
7 See, f.n. 3 8 See, f.n. 3
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staffing needs necessary on an urgent basis to address the most critical needs. In response, I submitted to you last week a request to hire a portion of those workers now.” Id. In the same letter, he said “bringing in new staff” was “one component of ensuring child safety,” but “I also want to make clear that bringing in new staff is just one component of ensuring child safety. The agency must continue efforts to retain our caseworkers.” Id. He pointed out that improved program training would help, but “will not end the high turnover at CPS.” Id. Among other reforms, “providing a salary increase will have a positive impact on retention,” which in turn could help save the agency money in the long run. Id. (a salary increase “may reduce our staffing exceptional item in the FY2018-19 [LAR]”).
The Court takes judicial notice9 that Commissioner Whitman’s letter was consistent with his testimony, given the day before, to the Senate Committee on Finance. He emphasized, among other key points, that there was a turnover emergency at DFPS. Hearing before the Texas Senate Committee on Finance, Oct. 26, 2016, at 4:07:22 - 4:09:12. He acknowledged, in reply to a question from Senator West regarding caseworker turnover, that there is “an emergency in [DFPS] surrounding compensating caseworkers” and that the State has “to do something about that today”. Id.
The Court takes judicial notice10 that DFPS’s most recent Legislative Appropriations Request reflects that if the agency’s request for additional funding is fulfilled, average caseloads per worker would be reduced to 25.47. LAR 2018-19, Administrator’s Statement, at 4 (p. 15/837 of the pdf), available at https://www.dfps.state.tx.us/About DFPS/Financial and Budget Information/LAR/FY18-19/documents/18-19 LAR.pdf. On April 11, 2016, Defendant Abbott issued an official statement addressing foster care. “The status quo at CPS is unacceptable. Our
9 See, f.n. 3 10 See, f.n. 3
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children are too important to suffer through the challenges they’ve faced. I’ve insisted on overhauling a broken system….” Governor Abbott, Press Release, Apr. 11, 2016, available at http://gov.texas.gov/news/press-release/22183.
Further, the Court takes judicial notice11 that on October 12, 2016, Governor Abbott, Lt. Governor Patrick, and Speaker Straus wrote to Commissioner Whitman. In their letter, in which they addressed numerous systemic deficiencies, they expressed deep “concerns” that children at risk of abuse and neglect are not being seen in a timely manner and that this “exacerbates backlogs throughout the entire system,” leaving children in dangerous situations. Letter from Gov. Abbott, et al., Oct. 12, 2016, available at http://gov.texas.gov/files/press-office/DFPS Whitman 10122016.pdf. The letter went on to say: The “increasing number of reports of abuse and neglect are beyond what the agency’s current workforce can support,” they continued, noting that “additional resources are required ... to protect our children who are in harm’s way.” Id. They directed Whitman to “immediately” undertake numerous actions, including hiring and training more special investigators, and “a strategic hiring and training schedule, which will ensure DFPS is staffing an increased number of the necessary caseworkers to account for the increase in workload and system backlog of serving children and families.” Id. “Quality capacity should be a high priority,” they continued, emphasizing that it is “unacceptable” for children to be sleeping in CPS offices, and that “inferior” residential foster care operations continue to exist. Id. Finally, they concluded on a somber note that underlined the urgency of the situation: “We have much work to do; and while we wish we could give you and your team more time to do so, too much is at stake. We must act now.” Id.
11 See, f.n. 3
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The Court takes judicial notice12 that on October 20, 2016, Defendant Whitman responded by letter to Defendant Abbott, noting the shortage of CVS caseworkers and inadequate placement array: “Texas children remain at risk. This is unacceptable.” Letter from Commissioner Whitman, Oct. 20, 2016, at 1, available at http://www.lrl.state.tx.us/scanned/archive /2016/32952.pdf. On October 26, 2016, while Commissioner Whitman was testifying before the Senate Committee on Finance, Senator Kirk Watson asked: “[a]re you going to fight what the Special Masters say you should do?” After some back and forth, Commissioner Whitman answered: “I am personally not going to fight it.” Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 4:23:16 - 4:25:10, available at http://www.senate.state.tx.us/75r/senate/commit/c540 /c540.htm. At the hearing, DFPS General Counsel Trevor Woodruff testified that DFPS would attempt to address all the foster care issues “with all due speed.” Id. at 4:35:00 - 4:36:30. Speaking more generally of the risks children face, he continued: “To this point, Senators, the children of this state are at risk.” Id. at 3:07:32. For emphasis, he added: “When I walked into the whole system, it stunk bad.” Id. at 3:31:49. On October 27, 2016, Defendant Whitman wrote to Chair Jane Nelson of the Senate Finance Committee: “I have been on the job as commissioner of DFPS for almost six months. In that time, I have discovered a crisis in the making for the past decade or more.” Letter from Commissioner Whitman, Oct. 27, 2016, available at http://www.lrl.state. tx.us/scanned/archive /2016/33026.pdf.
The Court takes judicial notice13 that on November 22, 2016, literally the day after Defendants filed their Objections, Defendant Abbott issued a public statement in which he spoke, in no uncertain terms, of the risk that all children in the state’s custody face:
12 See, f.n. 3 13 See, f.n. 3
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“Texas children in the child protective system continue to be at risk, and we must not delay providing the critical resources and support that CPS urgently needs.” --Julie Chang, “State Rejects Court-Ordered Proposal to Fix Foster Care System,” Austin American-Statesman, Nov. 22, 2016 (quoting Statement of the Governor), available at http://www.mystatesman.com/news/state--regional-govt--politics/state-rejects-courtorderedproposal-fix-foster-care-system/wm5HHnSK92OtAoMevSFbVL/. The Court recognizes the importance of State intervention in abusive family situations which results in the State assuming custody of children. Yet how much more tragic is it for those same children to be further abused while in State custody. Despite the State’s recognition of the problems as recited above, the State objected to every recommendation proposed by the Special Masters. IV. The State’s Objections to the Recommendations In the State’s Objections to the Recommendations, it reiterates prior arguments previously raised. For instance, the State objects that many of the Recommendations are already in place as policies. However, policies not practiced are insufficient to address the constitutional deficiencies found in the Court’s 2015 Order. Even if the State has policies in place which could remedy the constitutional deficiencies, Plaintiffs’ claims are not mooted and the Court is not deprived of its remedial power. See, e.g. Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 189 (2000)(“a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”). The burden on a party to show that their voluntary conduct has mooted the case is strict. U.S. v. W.T. Grant Co., 345 U.S. 629, 633 (1953)(“the burden which lies on the party asserting mootness “is a heavy one”). The Court cannot rely on the State’s representation that it has policies in place because to do so would leave the State free to return to its old ways. Friends of the Earth, supra at 189.
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The Fifth Circuit Court of Appeals likewise recognizes the heavy burden defendants must carry to establish mootness based on their purported voluntary cessation of illegal conduct. See, e.g. Pederson v. Louisiana State University, 213 F.3d 858, 875 (5th Cir. 2000)(“We will not second-guess the district court’s reasoned judgment by declaring this issue moot when Appellees have failed to demonstrate that their Title IX effective accommodation violations will not recur.”); K.P. v. Le Blanc, 729 F.3d 427, 438-39 (5th Cir. 2013)(rejecting defendants’ contention of no ‘ongoing’ violation of federal law and finding defendants’ challenged action reasonably subject to recurrence). The State’s long history of conducting and commissioning studies without any measurable improvement to the well-being of children in foster care belies their argument that they have plans in place to address the constitutional deficiencies found by the Court.
The State generally objects to the Recommendations that DFPS create plans to address constitutional deficiencies as shifting the burden to the State. This objection is overruled. The crux of this case is that the burden has always been on the State to provide constitutional safeguards to children over whom they have custody. The refusal by the State to accept this burden despite over 20 years of studies conducted by the State or commissioned by the State, all of which found these same deficiencies, brought us to this point. DFPS has the burden to protect the children in its care and custody from unreasonable risk of harm. (See, 2015 Order at p. 15) For over 20 years all studies conducted or commissioned by DFPS or by other State actors recommended many of the same reforms based on the same deficiencies found by this Court, yet the problems still exist. The Court’s Original Order made it clear that Plaintiffs proved their case as to constitutional deficiencies. All other objections are not yet ripe or are more properly addressed in the Court’s final order.
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V. The Special Masters’ Recommendations Addressed
To achieve the results required to correct the constitutional deficiencies in the foster care
system and protect foster care children from unreasonable risk of harm, the Special Masters
developed a detailed set of recommendations which track the Court’s 2015 Order. However, to
accomplish these goals, further work is necessary. Therefore the Special Masters are ordered to
continue to work with DFPS to help DFPS create and implement plans to do the following:
A. Monthly Visits
The Special Masters are ordered to work with DFPS to create policies for monthly in-
person visits between Conservatorship (“CVS”) caseworkers and PMC children. The visits
should include time with the child separate from the caregivers and other children if the child is
verbal or can otherwise communicate. The policies should be included in new casework training.
The methods and policies shall be developed by the Special Masters following consultation with
DFPS, and submitted to the Court within 3 months from the date of this Order.
B. Creation of a Central Databank
The Special Masters are ordered to work with DFPS to create and submit to the Court a plan for
a comprehensive central databank for PMC children. The databank shall include:
1. Medical records; 2. Dental records; 3. Mental health records; 4. School records; 5. Court records; 6. Caseworker notes; and 7. Placement evaluations.14 The databank should be accessible to caseworkers, CASA volunteers, attorney ad litems,
foster care parents, and the Special Masters. DFPS objects to the creation of this databank on the
14 After trial and at the direction of the Court, Defendants spent months gathering the information in their Exhibit 120, which contains 358,102 pages for only 20 children, yet there were no medical, dental, school, or mental health records contained in Exhibit 120. (DX 120; 2015 Order at 167).
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grounds that it violates attorney-client privilege and other confidentiality laws. However, as noted by the Special Masters, other states have successfully addressed these very issues with central databanks providing separate access codes to each group of people, thereby limiting the data access appropriately. The Special Masters will report the progress of the central databank creation to the Court within three months from the date of this Order. The databank must be logically ordered and also include safety-related reports, licensure verification, and information on investigations. In addition the database shall include photos of the child as recommended by the Special Masters in Section 3 of the Recommendations. The Special Masters shall also work with DFPS to develop a monitoring methodology of this plan once reviewed and approved by the Court.
C. Creation of a 24-hour Hotline The Special Masters shall work with the DFPS to create a plan for a statewide reporting system for PMC children to report allegations of child abuse and neglect to be operated 24 hours per day, 7 days a week. The reporting system should allow PMC children to report abuse, neglect, exploitation, or violation of personal rights, without fear of punishment or retaliation. The Special Masters shall work with DFPS to create plans for screening such calls and, where warranted, investigate thoroughly. The plan should include reporting on investigations and providing for timely closure. Additional policies should be created which require that Child Placement Agency (“CPA”) residential providers maintain a landline phone that connects directly to the hotline. All foster homes, foster group homes, and therapeutic foster homes housing PMC children should be required to maintain a landline phone accessible to the child in the home, with the toll-free hotline number appended to the landline.
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The plan should further provide for publishing and training all affected individuals on the policies for reporting allegations to the hotline for investigation. All PMC children must be instructed on the use and location of the landline and/or hotline within two hours of placement in a facility, which training should be documented by the caseworker. The plan and policies should be submitted within 6 months from the date of this Order.
D. Recommendations Regarding PMC Children who “Age Out” The Court takes judicial notice15 that on October 26, 2016, Defendant Whitman testified about the problems with children aging out of the system: “27% of [children aging out of foster care] end up in the criminal justice system.” Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 4:46, available at http://www.senate.state.tx.us /75r/senate/commit/c540 /c540.htm. He added his concern was especially great. “Because we know that a lot of these children that age out, that just age out, ... a majority of them will fall into sex trafficking.” Id. at 4:37:50. The evidence demonstrates that the system is failing these children. They are simply not prepared to face the world at age 18 when they are in effect “tossed out” of the system. On average, 1300-1400 youth age out of foster care in Texas every year. (D.E. 327 at 222-23; DX 259 at 21-22; see also DX 24 at 14 (showing that 1410 youths aged out in 2011); DX 119 at 221 (showing that 1328 youths aged out in 2013)). Studies show that they are at high risk for low educational attainment, poverty, unemployment, early pregnancy, mental illness, and incarceration. (See, e.g. Plaintiff’s Ex. 1988). The Special Masters are therefore ordered to work with DFPS to establish a plan beginning at age 14 to prepare PMC children with necessary life skills to survive when released from State care. The plan shall be submitted to the Court within 5 months from the date of this order. The plan shall include making a birth certificate available to
15 See, f.n. 3
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each child before they reach age 18, either physically or by an established email account. The birth certificate is an important document which is required for many social services for which the children may be eligible, such as appropriate housing and social security benefits. (See, e.g., 2015 Order at 66; D.E.324, DFPS 009012001-02) Accordingly, this provision should be effective immediately.
E. Appointment of an Attorney Ad Litem Most PMC children do not have a CASA volunteer. (2015 Order at p. 7, PX 1988 at 170) As noted by the State in its Objections, DFPS has no authority over CASA and the non-profit organization does not operate in the entire State of Texas. Most PMC children also do not have an attorney ad litem. (2015 Order at p. 7; D.E. #299 at 60; D.E. #323 at 68).While the Court recognizes that it cannot order CASA volunteers be provided for each child, the Court can and does find that children within the PMC classification are constitutionally entitled to representation of counsel at each stage of their legal proceedings and at every court hearing. When a child is initially taken into custody by DFPS, their physical liberty is curtailed. Placement of PMC children results in state custody of the child for years at a time with concomitant loss of physical liberty. The right to counsel exists in civil litigation “where the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. Department of Soc. Servs. Of Durham County, N.C., 452 U.S. 18, 25 (1981). “The interest in securing freedom… from bodily restraint lies at the core of the liberty protected by the Due Process Clause.” Turner v. Rogers, 64 U.S. 431, 445 (2011), citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992). There can be no doubt that PMC children’s freedom is curtailed. As noted at trial, one judge interviewed for the Texas Appleseed study stated that foster children in PMC are “just like…inmate[s] serving time until they’ve reached 18.” (2015 Order at 171; PX 1988 at 72).
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The most egregious loss of liberty occurs when children are placed in Residential
Treatment Centers (“RTCs”) without judicial proceeding and attendant due process. They are
effectively institutionalized and subject to indefinite confinement without the opportunity for
review. (2015 Order at p. 225). In fact, PMC children who do not need treatment are often placed
in RTCs simply because there is no room for them anywhere else. (2015 Order at p. 224). RTCs
are a type of General Residential Operation (“GRO”) that provide therapeutic treatment “for
children with serious emotional disturbances or mental health issues.” (2015 Order at 9-10; PX
1864 at 101; DX 109 at 1273). The most egregious loss of liberty occurs when a child is placed
in an RTC where they may be restrained and/or medicated.
In considering the right to counsel in mental health commitment proceedings, the United
States Supreme Court recognized that “for the ordinary citizen, commitment to a mental hospital
produces ‘a massive curtailment of liberty.’” Vitek v. Jones, 445 U.S. 480, 491 (1980)(citations
omitted). The Court further noted:
The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital “can engender adverse social consequences to the individual” and that “[w]hether we label this phenomena ‘stigma’ or choose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual.” Addington v. Texas, supra, at 425–426, 99 S.Ct., at 1809. See also Parham v. J. R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979). Also, “[a]mong the historic liberties” protected by the Due Process Clause is the “right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). Compelled treatment in the form of mandatory behavior modification programs, to which the District Court found Jones was exposed in this case, was a proper factor to be weighed by the District Court. Cf. Addington v. Texas, supra, at 427, 99 S.Ct., at 1810.
- - Vitek, supra. At 492.
Much like a mental health proceeding, the State acts in parens patriae when it determines
placement of PMC children. There can be no doubt that placement of PMC children results in the
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child’s loss of physical liberty. Despite the fact that a child may originally be placed in foster care to protect the child from harm, the irrefutable fact is that PMC children are in effect in custody and/or institutionalized and their personal freedom is lost or curtailed. The trial record is replete with examples of physical restraint, punishment, and overuse of medications. (DX. 120) Children are frequently placed in RTC’s at the urging of foster parents and with the stroke of a caseworker’s pen. (DX. 120) Moreover, RTCs, as described above, carry the equivalent stigma of mental institutions for PMC children as that described in Vitek.
The right to counsel in civil cases arises not from the Sixth Amendment but rather from the Due Process Clause. The Fourteenth Amendment to the Constitution states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The threatened loss of liberty through legal proceedings “demands due process protection.” Turner v. Rogers, supra., citing Addington v. Texas, 441 U.S. 418, 425 (1979).
As more fully discussed in the 2015 Order, “[s]tate custody of a child creates a ‘special relationship’ that triggers substantive due process protections.” Id. at p. 15. These children are entitled to procedural due process as well. Lassiter, supra.; Vitek, supra. The Court is compelled to jealously protect the liberties of Texas’ most vulnerable citizens and safeguard their right to be heard when their liberty is placed in jeopardy. DFPS can articulate no rational basis for making it more difficult for a PMC child to receive procedural due process than persons civilly committed.
Accordingly, the Court finds that PMC children are entitled to counsel at every step of their legal journey through the Texas foster care system. Although the Court cannot order DFPS to provide the attorneys, there are at least three options to correct the constitutional deficiency.
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The Court can order, at a minimum, that DFPS request ad litem appointment from each court in which a suit is pending, citing this Order. Additionally, the Court will consider ordering DFPS to reimburse the ad litem attorneys’ fees to the appointing court. The Special Masters are ordered to work with DFPS to evaluate the efficacy of these options and propose a procedure for the appointment of an attorney ad litem for each PMC child within 3 months from the date of this order.
F. Healthcare The Court orders the Special Masters to work with DFPS to develop a healthcare plan to address missing or nonexistent healthcare records. The recommended guideline shall be the American Academy of Pediatrics “Fostering Health: Healthcare for Children and Adolescents in Foster Care”. The Court further orders the Special Masters to make certain the healthcare plan requires DFPS to make every effort to make a child’s medical records available within 24 hours of entering custody of DFPS. The Court is aware that this affects children initially coming into DFPS who are not yet PMC children. However, every PMC child begins as a TMC child and by the time they are designated as PMC, medical records may no longer be available. Therefore this protection is necessary. The healthcare plan shall be submitted to the Court within 6 months from the date of this order. The Special Masters shall also work with DFPS to develop a monitoring methodology of this plan once reviewed and approved by the Court. G. Caseworker Workload Throughout the history of this case it is evident that no reliable method has been utilized to arrive at the appropriate number of PMC children per caseworker. In the past, DFPS manipulated the numbers to create the illusion of lower caseload. For instance, at trial, the testimony of Dr. Jane Burstain demonstrated that DFPS manipulated data to suppress caseworker
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caseload numbers. (2015 Order at 54-55). In arriving at a caseworker caseload number, Dr. Burstain included in her calculation of the number of caseworkers “I See You Workers”16, Centralized Placement Unit (“CPU”) workers (who have no contact with children), part-time workers, and fictional workers “created out of all the overtime,” which “are not actually even people.” (2015 Order at 55, citing D.E. 310 at 65-69). She arrived at a caseload of 17-19 workers (D.E. 310 at 65).
Actual caseload data indicates a far higher number of PMC children per caseworker. At trial, the testimony of Colleen McCall indicated that there was a case load of 28 children per caseworker. (D.E. 305 at 18). DFPS’s most recent Legislative Appropriations Request reflects that if the agency’s request for additional funding is fulfilled, average caseloads per worker would be reduced to 25.47 children. LAR 2018-19, Administrator’s Statement, at 4 (p. 15/837 of the pdf), https://www.dfps.state.tx.us/About DFPS/Financial and Budget Information/LAR/FY18-19/documents/18-19 LAR.pdf. Yet we know from the State’s own Work Study that a CVS caseworker cannot physically accommodate more than 14 PMC children.
In preparing their Recommendations, the Special Masters used DFPS’s Executive Summary of a Work Measurement Study (the “Work Study”, D.E. 485) ordered by the Court in the 2015 Order and conducted between March 2016 and August 2016. The Work Study calculated that DFPS caseworkers expended an average of 9.7 hours per month on cases associated with PMC children and that those caseworkers had an average of 137.9 hours per month to spend on PMC cases.17 By dividing the number of available hours by the time required
16 Discussed infra at section I. Of note, “I See You Workers” caseloads are redundant to that of CVS caseworkers. 17 This number is inclusive of overtime. Without overtime, the average number of hours available is 129.1 (D.E. 485 at 4)
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per PMC case, DFPS arrived at an average of 14 PMC children per CVS caseworker.18 The Special Masters and the Court concur that this approach is the best method for determining an appropriate and safe caseload and recommend a maximum range of 14-17 PMC children per CVS caseworkers who are assigned to the role of serving PMC children and who work full-time in that role. See, Advisory filed by the Special Masters on January 3, 2017, D.E. #493.
If a caseworker also handles TMC children, the number of PMC children per caseworker will be reduced because the Work Study indicates that TMC children require more time than PMC children. The Work Study also blended “I See You Workers” with CVS caseworkers even though “I See You Workers’” job description and average time spent on case profiles is less than CVS caseworkers. Removing “I See You Workers” from the calculation decreases the number of PMC cases a CVS caseworker can physically handle. (D.E. 471 at 11.1) Nevertheless, the Court accepts the Work Study as providing the definitive number of PMC children that a CVS caseworker can physically handle.
The Court orders the Special Masters to work with DFPS to develop a plan with specific time frames to ensure that PMC caseloads will be reduced to between 14-17 children statewide. The plan shall include a provision that any PMC caseload above 17 be documented in writing by the caseworker’s supervisor explaining why it is safe. The plan shall be submitted to the Court within 6 months from the date of this Order. The Special Masters shall also work with DFPS to develop a monitoring methodology of this plan once reviewed and approved by the Court.
18 DFPS has assured the Special Masters that the study filed with the Court can be interpreted as follows: the term “stages” as it relates to TMC children is equal to “families”. Any “stage” when referring to PMC children equals one child.
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H. Caseworker Turnover The Special Masters are ordered to work with DFPS to create a plan with specific time frames to reduce caseworker turnover per Recommendation 12.1. The plan shall be submitted to the Court within 6 months from the date of this order. The Special Masters shall also work with DFPS to develop a monitoring methodology of this plan. I. I See You Workers The “I See You Worker” position was created by DFPS over ten years ago. (2015 Order at 222-23) The position was created “in part because children were too often being sent far from their home communities and primary CVS caseworkers.” Id. In addition, “I See You Workers” allow the State to represent to the federal government that foster care children are visited at least once a month. Id. Without that monthly visitation, the State would lose millions of dollars in federal aid. Id. “I See You Workers” have a much larger caseload than primary caseworkers. At the time of trial “I See You Workers” had between 60 and 70 PMC children that they were required to visit each month, in addition to any TMC children. (2015 Order at 174; D.E. 300 at 101) According to the Recommendations, the average caseload for an “I See You Worker” as of June 30, 2015 was 44. (D.E. 471 at p.6). For the reasons cited in section 13 of the Recommendations and the 2015 Order, the Court orders the Special Masters to retain an expert as part of their team to create a workload study of “I See You Workers” to aid the Court in determining whether the “I See You Worker” program should be continued and, if so, in what capacity. The workload study shall be completed within 9 months of this order. Further, the Court orders the Special Masters to work with DFPS to develop a contact guide for “I See You Workers” to complete during monthly, private face-to-face contact visits. If
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an individual private visit is not possible, the reason must be documents in writing. The guide shall include an assessment of placements, confirmation that the child was being interviewed privately, a discussion of forms of discipline being used, a review of the child’s medical, mental health, dental, and educational needs, plus any other staff expectations from DFPS regarding “I See You Workers’” interactions with the PMC children they supervise. The Special Masters shall work with DFPS to ensure all “I See You Workers” use the contact guide within 3 months of approval by the Court and in the planned study. The contact guide shall be submitted to the Court within 5 months from the date of this order.
The Special Masters are also ordered to work with DFPS to formulate a plan that, when a child is assigned an “I See You Worker” or other secondary worker, that person conducts monthly in-person private visits. In addition the plan should provide that the primary caseworker shall visit the child in person or privately via available technology such as face time, videoconferencing, or any other method available at least quarterly. The Special Masters shall also work with DFPS to develop a monitoring methodology of this plan once reviewed and approved by the Court. The plan shall be submitted to the Court within 3 months from the date of this order.
J. Residential Child Care Licensing (“RCCL”) The Court finds that DFPS has not commenced, as previously ordered, a workload study of RCCL investigators and inspectors.19 Therefore the Court orders the Special Masters to formulate and institute such a study and report to the Court within eight months from the date of this Order. The Special Masters may retain an expert to conduct the study as part of their team.
19 The State informed the Court that it did not deem the study necessary because workloads are adequate and the entire department will be transferred to a separate agency. Whatever the future location of the department, its integral relationship to the safety of PMC children requires that the study proceed. Further, no new compelling information is provided by the State to obviate the need for a study.
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The Special Masters are also ordered to work with DFPS to identify a discrete cohort of staff, for example a selection of RCCL staff, who will be exclusively assigned to the work of maltreatment investigations except for remote, rural or substantially less populated areas of the State where exclusive assignment is impractical. In this process the Special Masters will develop and implement protocols for quality control. The specialized staff shall be identified and established within 6 months from the date of this order. The workload study shall be completed within 8 months from the date of this Order.
K. RCCL Website Creation The Court orders the Special Masters to work with DFPS for DFPS to create a public website of all licensing inspections conducted by RCCL and/or its successive entities, redacting child identifying information and other information deemed confidential under law and regulation. The website shall contain the full narrative inspection report, the outcome of the inspection, inspection violations and whether RCCL implemented corrective or adverse action as a result of violations identified during inspections. The website will include all corrective action plans required by RCCL and/or other successive entities and the dates RCCL accepts corrective action plans submitted by violating agencies and the status of corrective action plans. The Special Masters are ordered to work with DFPS to expand the array of enforcement actions available to the DFPS for identified violations, including the ability of DFPS to suspend or close such facility. The Court orders the Special Masters to develop monitoring methodology of this plan once reviewed and approved by the Court. The plan shall be submitted to the Court within 3 months from the date this order is entered. The Court orders the Special Masters to work with DFPS to develop a plan with specific time frames to expand the array of enforcement actions available to DFPS for identified
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violations, including the ability of DFPS to suspend and close foster homes, foster group homes, and therapeutic homes directly, even when verified and maintained by CPAs. The plan shall include a time frame to make public on its website all enforcement actions undertaken by the agency. The plan shall be submitted to the Court within 3 months from the date this order is entered.
L. Identifying Single Child Homes The Court orders the Special Masters to work with DFPS to provide the Court with specific time frames to document and track available single child homes. Single child homes are homes with no other birth, adoptive, relative, or non-relative kinship or foster children present. Processes shall be established to match those placements to PMC children who, through documented assessment, are determined to need such a home. This is particularly important in light of the trial testimony that sexually abused children need single child placement homes. The plan shall be submitted to the Court within 3 months from the date this order is entered. M. Reporting Sexual Abuse The Court orders the Special Masters to work with DFPS to immediately require all incidents of sexual abuse committed by a child against another child be reported instanter by all foster caregivers, CPAs, GROs, and RTCs. In addition, the Special Masters shall work with DFPS as a resource to help DFPS develop a 24-hour hotline to be established by DFPS to receive, screen, and refer for investigation reports of child abuse and neglect such as, for example, the hotline run by DFPS statewide intake. The Special Masters shall work with DFPS as a resource to help DFPS develop a plan to ensure it investigates all reported instances of sexual abuse committed by a child against another child for at least neglect by caregivers
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charged with supervising the child and other issues such as negligent placement. These provisions shall be implements within 3 months of the Court’s Order.
The Special Masters shall also work with DFPS to ensure that a child’s case record prominently identifies TMC and PMC youth with sexually aggressive behavior if the child has sexually abused another child or is at high risk of perpetrating sexual assault. The Special Masters shall do a case record review establishing their own time frame. The Special Masters are also ordered to work with DFPS to ensure that a child’s case record prominently identifies a sexually abused PMC youth. Both the term “sexually abused” and “sexually aggressive” should be word-searchable in the child’s records. In addition to being identified, all placements should be informed if a child is sexually aggressive or was sexually abused.
The Court orders the Special Masters to work with DFPS to ensure that all PMC caseworkers receive training on where to find and how to make the designation in PMC children’s case records as to sexually aggressive behavior and sexually abused youth. The Court orders the Special Masters to work with DFPS to create a plan, with specific time frames and activities, informed by Performance Management Unit (“PMU”) case record reviews of substantiated and unsubstantiated maltreatment investigations and other data and information, to reduce the incidence of maltreatment of PMC children. The Special Masters shall confer with DFPS and develop a methodology for verification. This plan should include a prohibition by DFPS of placing children designated sexually aggressive or at high risk for perpetrating violence or sexual assault in any foster care placement with other children without appropriate documented assessment concerning the safety of all children in the placement. As part of this plan a documented assessment for every PMC child who has been sexually abused should be completed to determine their needs including whether they need a therapy foster home and, if so,
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ensure the child receives appropriate services in a placement matching his or her needs. Further this plan should include public reporting of the number of substantiated allegations of child maltreatment each month for children in the PMC class. The plan shall be submitted to the Court within 6 months from the date of this order.
N. Monitoring Reports of Abuse and Neglect The Court orders the Special Masters to work with DFPS to develop a plan with specific time frames to strengthen its monitoring and oversight of PMC children’s placements using its full array of contractual tools. This plan shall include a requirement that DFPS include consideration of all incidents of abuse and neglect, and/or corporal punishment occurring in placements at the time of its inspection. The plan shall extend DFPS’s monitoring of placement agencies’ obligation to report suspected child abuse or neglect to DFPS by including, for example, provisions for an immediate investigation by DFPS to determine the appropriate corrective action up to and including termination or modification of relevant portions of a contract for failure to report. This plan shall include enforcement tools for repeated failure by a placement agency to report suspected child abuse or neglect - at a minimum triggering a review of the contract agency’s violations by DFPS senior leadership. The plan shall be submitted to the Court within 6 months from the date of this order. O. Placement in Family-like Settings The Court orders the Special Masters to work with DFPS to insure that unrelated PMC children with different service levels not be placed in the same room unless a thorough and documented assessment is conducted by DFPS staff certifying that such placement is safe and appropriate for each PMC child. This plan should include a provision that, within 6 months from the date of the final order, all PMC children under two years of age shall be placed in a family-
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like setting. Within 12 months from the date of the final order all PMC children under six years of age shall be placed in a family-like setting. Within 24 months from the date of the final order all PMC children under the age of thirteen shall be placed in a family-like setting. Acceptable family-like settings include, for example, non-relative foster care, tribal foster care, kinship foster care, and therapeutic foster care. Exceptions to the requirements set out herein include sibling groups of four or more children who cannot otherwise be placed together, children whose individualized needs require inpatient psychiatric hospitalization, treatment and/or medical care, or young children who are placed with their minor parent. This plan shall include a prohibition of placing unrelated children that are more than three years apart in the same room.
P. Placement Arrays The Special Masters are ordered to work with DFPS to create a solution to the lack of appropriate placement arrays. This plan will recognize that DFPS currently does not track single child placements which are critical for sexually abused children. The plan will include a provision requiring DFPS, upon placing a sexually abused child in a setting with other children, to thoroughly document the reason for no single child placement. Further DFPS shall submit to the Special Masters and the Court its 2016 statewide Placement Needs Assessment no later than January 31, 2017. This assessment shall include the number, geographical distribution, and placement types in the DFPS placement array, and the expected needs for PMC children for 2017, by catchment area.20 The plan shall include performance targets, with specific time frames including benchmarks strategies to address the need for placements for specialized and often hard to place groups of PMC children such as sibling groups, teenagers, children with developmental
20 A “catchment area” was defined by Special Master Kevin Ryan at the hearing held December 21, 2016, as a “cluster of counties populous enough to move foster care redesign forward.” Counsel for the State agreed with this definition.
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disabilities and children requiring single child placement. The Special Masters shall address performance targets of DFPS over a 12-month period with a view to expanding placements in foster homes. The plan shall immediately prohibit placement of PMC children in DFPS offices overnight and further prohibit the placement of PMC children in locations not regulated by DFPS or a CPA except kinship placements or where necessary to meet the individualized medical, behavioral, or mental health needs of PMC children.
The plan will include the elimination of foster group homes. The Court’s 2015 Order and its clarifying Order entered December 28, 2016 (D.E. 491) required 24-hour awake supervision in foster homes housing more than 6 children. The Special Masters are ordered to verify within two months from the date of this order that all foster care home placements exceeding 6 children (including non-foster children such as biological and adoptive children of the foster parents, or any other child residing in the foster group home) do in fact provide 24-hour awake supervision.
Defendants’ Advisory to the Court (D.E. 492) highlights the need for a system to verify and monitor the number of non-foster children living in foster homes in addition to foster children. To date, Defendants rely on the representation of CPAs regarding the number of children in foster group homes and have not independently verified the information provided. (D.E. 492, Advisory at 2) Defendants assert in their Advisory that CPAs report both total capacity and foster care capacity numbers of children yet those numbers are not available nor are they tracked or monitored. (D.E. 492, Advisory at 2-3) thus the actual occupancy of foster homes in the State is not monitored.21
Further, as to foster care redesign, the Court orders the Special Masters to work with DFPS to address the capacity of providers across Texas to serve as Single Source Continuum Contractors (“SSCC”); the service array, including the development of foster homes that meet
21 At the time of trial DFPS admitted that these numbers were not tracked by DFPS. (D.E. 315 a 5-7)
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the individualized needs of PMC children; and proposed timelines for staged statewide implementation through the end of fiscal year 2021. The plan shall be submitted to the Court within 12 months from the date of this order.
As to placement arrays, the plan shall include the Special Masters working with DFPS to report to the Court semiannually, effective within 6 months from the date of this order, on PMC children’s placement moves. Each child’s placement move shall be documented as to the reasons for each move. V. Conclusion
Despite the tremendous accomplishments by the parties to date, the Court is not prepared to enter a final order. The Recommendations of the Special Masters are preliminary in nature and require additional information gathering, input, and supervision by the Court. Accordingly, the above findings constitute the Court’s Interim Order.
SIGNED and ORDERED this 9th day of January, 2017. ___________________________________ Janis Graham Jack Senior United States District Judge
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 Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

Page 1 of 116
United States District Court Southern District of Texas
ENTERED
January 19, 2018
David J. Bradley, Clerk

M.D.; bnf STUKENBERG, et al.

§

§

Plaintiffs,

§

VS.

§

§

GREG ABBOTT, in his official capacity §

as Governor of the State of Texas

§

and

§

CHARLES SMITH, in his official capacity §

as Executive Commissioner of the Health §

and Human Services Commission of the

§

State of Texas

§

and

§

HENRY WHITMAN JR., in his official

§

capacity as Commissioner of the Department §

of Family and Protective Services of the State §

of Texas

§

§

Defendants.

§

CIVIL ACTION NO. 2:11-CV-84

FINAL ORDER

The Court’s post-trial Memorandum Opinion and Verdict (“December 2015 Order”) found the State of Texas (the “State,” “Texas,” or “DFPS”)1 failed to protect foster children in its

Permanent Managing Conservatorship (“PMC”) from an unreasonable risk of harm. (D.E. 368,

Page 255). The Court’s December 2015 Order is hereby incorporated by reference in its entirety.

The Court identified several specific areas as constitutionally deficient. (D.E. 368, Pages 248-

54). The Court ordered Texas to “establish and implement policies and procedures to ensure that

Texas’s PMC foster children are free from an unreasonable risk of harm.” (D.E. 368, Page

1 Greg Abbott has since replaced Rick Perry as Governor of Texas, Charles Smith has since replaced Kyle Janek who replaced Suehs as Executive Commissioner of the Health and Human Services Commission, and Henry Whitman, Jr. has replaced John J. Specia, Jr., who replaced Heiligenstein as Commissioner of DFPS.
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 2 of 116
245).2 It also ordered the State to “immediately stop placing PMC foster children in unsafe placements, which include Foster Group Homes that lack 24-hour awake-night supervision.” (D.E. 368, Page 245). Two years and one legislative session later, the foster care system of Texas remains broken. The Court appointed Special Masters to develop an Implementation Plan (the “Plan”) that would provide PMC children “with the constitutional minimum standards of personal security and safe living conditions so that they are free from unreasonable risk of harm, both physical and emotional.” (D.E. 546, Page 1). I. PROCEDURAL HISTORY
The pre-trial history of this case is outlined in the Court’s December 2015 Order. That order was not final, as the Court was not in possession of sufficient information to do so. (D.E. 368, Page 245). Defendants appealed the Court’s December 2015 Order and requested a stay pending appeal, which this Court denied. (D.E. 370; D.E. 371). The Fifth Circuit also denied a stay pending appeal. M.D. ex rel. Stukenberg v. Abbott, No. 16-40023 (5th Cir. Mar. 21, 2016). Defendants subsequently voluntarily dismissed the appeal. M.D. ex rel. Stukenberg v. Abbott, No. 16-40023 (5th Cir. Apr. 5, 2016).
On March 21, 2016, the Court appointed Kevin Ryan and Francis McGovern as Special Masters to address the specific areas of constitutional deficiency identified in the Court’s December 2015 Order. (D.E. 379). Defendants sought a writ of mandamus directing the Court to vacate the appointment of the Special Masters, which the Fifth Circuit denied. M.D. ex rel. Stukenberg v. Abbott, No. 16-40482 (5th Cir. July 7, 2016). The Special Masters assembled a team and subsequently reviewed hundreds of thousands of pages of documents and met with the parties on numerous occasions over twenty-one months. (D.E. 546, Page 1). On November 4,
2 The State of Texas continues to refuse to recognize it has a constitutional duty to protect PMC children from unreasonable risk of harm. See, e.g., (D.E. 556-1, Page 2 ¶ 8) (“DFPS operates a constitutionally sound system . . . .”).
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 3 of 116
2016, the Special Masters filed a set of recommendations responsive to the Court’s December
2015 Order. (D.E. 471). On January 9, 2017, the Court issued an interim order adopting the
recommendations made by the Special Masters in November 2016. (D.E. 500). The Court
determined that a final order could not be entered at that time, as additional information was still
required. (D.E. 500, Page 2). The Court ordered the Special Masters to work with DFPS to
create policies to address the Special Masters’ prior recommendations. (D.E. 500, Page 13).
The Court ordered the Special Masters to conduct a workload study of I See You workers3 and of Residential Child Care Licensing (“RCCL”)4 investigators and inspectors. (D.E.
500, Pages 22-23). The Special Masters retained experts at the University of Texas-Austin to
conduct the two studies. (D.E. 546, Page 100-111; D.E. 546-1). On December 4, 2017, the Special Master,5 after twenty-one months of careful study and with no input from the State
except providing information requested, filed a list of policies responsive to the Court’s December 2015 and January 2017 Orders.6 (D.E. 546).
Following the fifteen days the Court allowed for objections, Plaintiffs filed no objections
and Defendants filed general and specific objections that will be addressed separately below.
See (D.E. 555; D.E. 556). In numerous instances, the State refused to participate in drafting
3 “I See You workers’ main responsibility, as indicated in the position title, is ‘seeing the child’ in her placement every month to confirm that she ‘is still there.’” (D.E. 368, Page 171 (quoting D.E. 305, Pages 61-63)); see infra at III.K. DFPS recently renamed the position “Local Permanency Specialist.” This Order retains the title used at trial. 4 Since the entry of the Court’s December 2015 Order, the licensing aspects of RCCL have been separated from DFPS’s administrative control. Licensing inspectors and the Centralized Background Check Unit (“CBCU”) were moved to a new regulatory division within the Texas Health and Human Services Commission (“HHSC”). However, the investigators who conduct investigations of alleged abuse and neglect in childcare operations remain under DFPS’s control as part of CPS. Accordingly, the Court enters relief against the State of Texas to ensure PMC children are free from an unreasonable risk of harm. For consistency, this Order uses the same name used at trial, “RCCL.” 5 On November 21, 2017, the parties agreed that Francis McGovern would serve as a mediator in this case and his appointment as a Special Master was terminated. (D.E. 544). 6 On December 15, 2017, Texas Lawyers for Children filed an amicus brief in support of Plaintiffs. (D.E. 554). Although well-written and presented, this would have better served the children as a pre-trial brief, so the Court could have evaluated the evidence in the brief after thorough examination by the parties. The Court has not relied on the amicus brief in reaching any of its conclusions.
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 4 of 116
corrective policies. See (D.E. 546, Pages 10-11, 16, 21, 25, 41, 43, 47); infra at III. The State has taken minimal steps to aid the Special Masters in crafting corrective policies, limiting their participation to providing requested information. Further, the State has completely ignored the Court’s December 2015 Order to “establish and implement policies and procedures to ensure that Texas’s PMC foster children are free from an unreasonable risk of harm.” (D.E. 368, Page 245).7 The Court adopts the Special Master’s policy recommendations as orders of the Court, as specified herein. II. DEFENDANTS’ GENERAL OBJECTIONS TO SPECIAL MASTER’S POLICY
RECOMMENDATIONS Defendants organize their Objections into General Objections that apply to the entire plan (D.E. 556, Pages 2-10 ¶ 1), “Cluster” Objections that apply to particular sets of Items (D.E. 556, Page 10 ¶ 2-Page 19 ¶ 3), and Specific Objections (D.E. 556, Pages 19-44). The Court addresses the General and Cluster Objections in this section. Most of the Defendants’ Specific Objections are chiefly factual in nature and are addressed infra at III. Many of the “specific” objections raised by Defendants merely repeat the Defendants’ General Objections and repetitious specific objections are not separately addressed beyond this section.
7 In its order denying Defendants’ application for a stay of the December 2015 Order, the Fifth Circuit held that the only appealable portion of this Court’s order was the prohibition on unsafe placements. M.D. v. Abbot, No. 1640023, slip op. at 4 (5th Cir. Mar. 21, 2016). However, the Fifth Circuit observed that orders appointing special masters or requiring preparation and submission of remedial plans are not generally appealable. Id. at 4 & n. 3 (citing cases).
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 5 of 116
A. General Objections 1. Lack of Reliable Evidence a. Objection
Defendants object to the entirety of the Plan on the basis that there is no expert or otherwise admissible evidence of any class-wide constitutional violations. (D.E. 556, Page 2, ¶ 1(a)). They therefore argue that class-wide remedies are inappropriate. Id.
b. Ruling on Objection This Objection is an attempt to relitigate the merits of the action, which were addressed in the Court’s December 2015 Order, of which all findings of fact and conclusion of law are incorporated herein. It is therefore OVERRULED.
2. Vagueness of Constitutional Violations a. Objection
Defendants object that the constitutional violations identified by the Court “are too vague to permit the remedies proposed in the Plan to be precisely tailored to cure those purported constitutional violations.” (D.E. 556, Page 3 ¶ 1(b)).
b. Ruling on Objection Defendants appear to argue that the constitutional right to be free from unreasonable risk of harm is too “vague” to permit a remedy, but “every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. 137, 147 (1803). Defendants correctly note that injunctive relief must be narrowly tailored to redress the violations found. (D.E. 556, Page 8); see Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006). But “it is well-settled that, under the fourteenth amendment, a court may require remedial measures that the Constitution does not of its own force initially require. Injunctive relief need not be
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 6 of 116
confined to an order to cease an illegal practice.” Ruiz v. Estelle, 679 F. 2d 1115, 1155-56 (5th Cir. 1982) (citations omitted), amended in part, reh'g denied in part on other grounds, 688 F.2d 266 (5th Cir. 1982) (per curiam). Here, to give but one example, the Court did not hold that the Constitution requires that all foster children nationwide must have access to a landline phone. See infra at III.D.3. Rather, the Court found that Texas’s overall foster care system has unconstitutionally exposed PMC children to an unreasonable risk of harm, and that providing PMC children access to a phone is a necessary “measure[] that safeguard[s] against recurrence” of that constitutional violation. See Ruiz, 679 F. 2d at 1156. The other relief ordered by the Court is likewise aimed at remedying the fact that Texas’s foster care system as a whole exposes PMC children to an unreasonable risk of harm. See Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986). Defendants’ objections on this ground are OVERRULED.
3. Constitutional Standard a. Objection
Defendants object that foster children have no substantive due process right to be “free from unreasonable risk of harm,” and that the Special Master therefore erred in basing his Plan on this standard. (D.E. 556, Pages 7-8, ¶ 1(c)).
b. Ruling on Objection In its December 2015 Order, the Court found Plaintiffs had a right to be free from an unreasonable risk of harm. (D.E. 368, Page 15); see also Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 849, 857, 859 (5th Cir. 2012) (noting that a state has a constitutional duty to care for foster children); Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F. 3d 872, 881 (5th Cir. 2004) (explaining that “the risk of severe physical abuse to a foster child’s bodily integrity” is a legal injury); K.H. ex rel. Murphy v.
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 7 of 116
Morgan, 914 F. 2d 846, 851 (7th Cir. 1990) (“[T]he Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.”) (citing Youngberg v. Romeo, 457 U.S. 307 (1982)). As Defendants admit, this Objection is merely an attack on the constitutional standard enunciated in the Court’s December 2015 Order. (D.E. 556, Page 8 n. 12). The Court hereby incorporates the reasoning and findings from its December 2015 Order by reference and Defendants’ Objection is OVERRRULED.
4. Overbreadth of Remedies a. Objection
Defendants object that the Plan’s proposed remedies are premised on a subjective standard based on the Special Master’s conception of “best practices” rather than a constitutional standard, and that the proposed remedies are therefore overbroad. (D.E. 556, Page 8 ¶ 1(d)).
b. Ruling on Objection This Objection repackages General Objection 3. It is true that “best practices do not establish constitutional minima.” See Romano v. City of San Marcos, 2017 WL 3996427, at *6 (W.D. Tex. Sept. 11, 2017) (internal quotation marks omitted) (quoting Brown v. TimmermanCooper, 2013 WL 430262, at *4 (S.D. Ohio Feb. 4, 2013)). But the Special Master did not use a “best practices” standard, he used the constitutional standard enunciated in this Court’s December 2015 Order, that foster children have the right to be free from unreasonable risk of harm. See (D.E. 546, Page 1). The Court finds that the remedies adopted by this Order are necessary to protect foster children from unreasonable risk of harm. See Ruiz, 679 F.2d at 1156. This Objection is OVERRULED.
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 8 of 116
5. Intrusiveness of Remedies a. Objection
Defendants object that the Special Master failed to demonstrate the proposed remedies are the least intrusive into the administration of DFPS. (D.E. 556, Page 8, ¶ 1(e)).
b. Ruling on Objection Defendants fail to cite any authority for their contention that injunctive relief must always be the least intrusive alternative. This requirement is present in the prison conditions context, but the requirement there is explicitly prescribed by the Prison Litigation Reform Act. See 18 U.S.C. § 3626(a)(2); see also Ruiz, 679 F. 2d at 1145 (recognizing federal judicial policy of “minimum intrusion” into administration of state prisons). Even so, the Court has tailored its remedies to intrude as little as possible into the State’s legitimate affairs; the remedies intrude only to the extent that the Court finds they are necessary to cure the constitutional violations identified. See Ruiz, 679 F.2d at 1156; Stone v. City and Cnty. of San Francisco, 968 F. 2d 850, 861 (9th Cir. 1992) (“[F]ederal courts should always seek to minimize interference with legitimate state activities in tailoring remedies.”). This Objection is OVERRULED.
6. Recognition of Texas’s Efforts a. Objection
Defendants object that the Plan “creates the decidedly false impression that Defendants are doing little for foster care children.” (D.E. 556, Page 9 ¶ 1(f)). Defendants seek recognition of the actions taken in this area by DFPS and the Texas Legislature and claim that the Master failed to take their efforts into account. (D.E. 556, Page 9 ¶ 1(f)).
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 9 of 116
b. Ruling on Objection Many of the steps taken by the Texas Legislature and the Defendants are indeed admirable. In fact, the Special Master’s plan recognizes multiple steps taken by the state. E.g., (D.E. 546, Pages 12, 35 n. e, 37, 53-54). However, policies not practiced are of no value, and voluntary conduct of a defendant after the beginning of a suit cannot deprive a court of the power to order relief. See Ruiz, 679 F. 2d at 1160; (D.E. 500, Page 11); cf. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). Nor have Defendants’ actions cured the constitutional violations identified in this Court’s December 2015 Order. The Objection is OVERRULED.
7. Ineffectiveness of Remedies a. Objection
Defendants object that there is no evidence the proposed remedies will cure the classwide constitutional violations. (D.E. 556, Page 9 ¶ 1(e)).
b. Ruling on Objection The Court has concluded, based on the evidence in the record, that the remedies prescribed above will substantially cure the class-wide constitutional violations. Ruiz, 679 F.2d at 1156. Furthermore, “[a]n inability to guarantee complete relief for a constitutional violation . . . does not justify withholding a remedy altogether.” Williams v. Pennsylvania, 136 S. Ct. 1899, 1910 (2016). The Objection is OVERRULED.
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8. Violation of Appointment Order a. Objection
Defendants object that the Appointment Order for the Special Master (D.E. 379) violates Fed. R. Civ. P. 53 and that the Plan, as a product of the improper appointment, is therefore invalid. (D.E. 556, Page 9 ¶ 1(h)).
b. Ruling on Objection This Objection attempts to relitigate the appointment of the Special Master. The Court hereby incorporates its findings and reasoning from its Appointment Order. (D.E. 379). The highly complicated factual details and administrative problems inherent in crafting an injunction are “post-trial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed. R. Civ. Pro. 53(a)(1)(C). Any argument that it is inappropriate for a court to employ a Special Master to help craft a remedial plan is meritless. See, e.g., Morgan v. McDonough, 540 F. 2d 527, 533 (1st Cir. 1976) (“Masters have been used extensively to formulate plans and recommendations . . . .”); United States v. Tex. Ed. Agency, 532 F.2d 380, 399 (5th Cir. 1976) (suggesting appointment of special master to draft desegregation plan), vacated on other grounds by Austin Ind. Sch. Dist. v. United States, 429 U.S. 990 (1976). The Court reviewed the Special Master’s Plan de novo and made all changes it thought necessary. See Fed. R. Civ. Pro. 53(f)(3)-(4). The Court discusses in detail similar issues regarding its appointment of a Monitor under this same rule in Section IV below. The Objection is OVERRULED.
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9. Appropriateness of Injunctive Relief Respecting the Class as a Whole a. Objection
Defendants object that the remedies violate Fed. R. Civ. P. 23(b)(2). (D.E. 556, Page 9 ¶ 1(i)).
b. Ruling on Objection The Supreme Court has clarified that certification of a class for injunctive relief is only appropriate where “a single injunction . . . would provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Injunctive relief is appropriate if “the party opposing the class has acted or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2). Defendants object that the Plan does not satisfy this standard, but provide no explanation or authority supporting their contention. This claim is without merit. “‘[R]elief to each member of the class,’ does not require that the relief to each member of the class be identical, only that it be beneficial.” Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 97 (2d Cir. 2015) (quoting Dukes, 564 U.S. at 360) (alteration in original). The injunctive relief is crafted to benefit each class member. To the extent this Objection is an attempt to relitigate the class certification, the Court has previously determined the requirements of Rule 23(b)(2) are met. (D.E. 213, Pages 62-63, 81, 88, 94). The findings of the Court in its Order Granting Class Certification are hereby incorporated by reference. Accordingly, this objection is OVERRULED.
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10. Plaintiffs’ Compliance with Fed. R. Civ. P. 23 a. Objection
Defendants argue that Plaintiffs were not entitled to class certification because they failed to show commonality, typicality, and the existence of an appropriate class-wide remedy. (D.E. 556, Page 9 ¶ 1(j)). They therefore object to the granting of class-wide relief.
b. Ruling on Objection Defendants’ attempt to relitigate their failure to timely appeal the class certification order of August 27, 2013 must fail. (D.E. 213; D.E. 228). The Court has ruled on class certification and the findings of the Court are hereby incorporated by reference. (D.E. 213). Defendants’ Objection is moot.
11. Propriety of the Plan’s Descriptions of Testimony, Documents, and Prior Rulings a. Objection
Defendants object that the Plan’s “descriptions or characterizations” of the record and rulings in this case are outside the scope of the Appointment Order, are hearsay, and are not the best evidence of what is in the record. (D.E. 556, Page 10 ¶ 1(k)).
b. Ruling on Objection The Court does not rely on any of the “descriptions or characterizations” complained of by the Defendants in this Objection. The Court is aware of the contents of the record and of its own rulings. This Objection is OVERRULED.
12. Receivership a. Objection
Defendants object that the Plan has no specified end date, violates Rule 65, and creates a de facto receivership. (D.E. 556, Page 10 ¶ 1(l)).
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b. Ruling on Objection Defendants offer neither authority nor argument in support of their claim that the Plan creates a “de facto receivership,” but merely invoke the word “receiver” to challenge the Court’s appointment of a monitor. Receivers are generally court agents who handle property. See, e.g., Netsphere, Inc. v. Baron, 703 F.3d 296, 305 (5th Cir. 2012). However, this Order gives the Monitor no power whatsoever to dispose of Defendants’ property. The Court extensively discusses the appropriateness of appointing a Monitor infra at IV. Defendants’ receivership argument is meritless.8 This Order now contains an end date for the injunctive relief. See infra at IV. The Court has limited the Monitor’s authority as required by Ruiz v. Estelle. Compare 679 F. 2d at 1162, with infra at IV.12. To the extent the Defendants’ Objection is not satisfied by these changes to the Plan, the Objection is OVERRULED. B. Cluster Objections
1. Orders Must Be Remedial a. Objection
Defendants object that the Plan addresses policies and practices already in place, and that orders “must be remedial in nature and must address a violation that is as-yet un-remedied.” (D.E. 556, Page 10 ¶ 2(a)).
b. Ruling on Objection The Court reiterates that policies not practiced are of no value. See Ruiz, 679 F. 2d at 1160; (D.E. 500, Page 11). The State of Texas has failed to act upon twenty years of studies conducted or commissioned by the State. (D.E. 500, Page 12). In particular, it had a completely
8 Although the Court’s order does not impose a receivership, federal courts do have the power to impose receiverships when it is “the only reasonable alternative to noncompliance . . . .” See Morgan v. McDonough, 540 F. 2d 527, 533 (1st Cir. 1976), cited with approval in Miller v. Carson, 563 F. 2d 741, 753 (5th Cir. 1977).
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inadequate response to two internal studies finding error rates of 64.6% and 75%, respectively, in its investigations of abuse and negligent supervision. (D.E. 368, Pages 201-04). Consequently, this Court concludes that “unless directed otherwise by some authority, the studies and testing will continue, no remediation will occur and the dangerous condition[s] will continue to exist.” Cf. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 263 F. Supp. 2d 796, 834 (D.N.J. 2003), aff’d 399 F. 3d 248 (3d Cir. 2005). Throughout this litigation the State of Texas has not only insisted it has not violated the Constitution but refuses to even recognize these children’s most basic constitutional right to be free from unreasonable risk of harm. (D.E. 556, Pages 3-8; D.E. 556-1, Page 2). The State displayed a troubling unwillingness to follow the order of the Court in developing remedial policies and failed to make significant progress towards remedying the constitutional violations subsequent to the Court’s December 2015 Order. (D.E. 368, Page 245). Additionally, voluntary conduct of a defendant after the beginning of a suit cannot deprive a court of the power to order relief. Cf. Friends of the Earth, 528 U.S. at 189. This Objection is OVERRULED.
2. Orders May Not Command Defendants to Obey the Law a. Objection
Defendants object to policy recommendations requiring them to obey state or federal law, or to follow DFPS policy. (D.E. 556, Pages 10-11 ¶ 2(a)-(b). They argue that orders merely requiring a defendant to “obey the law” violate the specificity requirement of Federal Rule of Civil Procedure 65(d). (D.E. 556, Pages 10-11 ¶ 2(a)-(b) (quoting Meyer v. Brown & Root Constr. Co., 661 F. 2d 369, 373 (5th Cir. 1981)).
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b. Ruling on Objection “An injunction must simply be framed so that those enjoined will know what conduct the court has prohibited.” Meyer, 661 F.2d at 373 (citing Int’l Longshoremen’s Assoc. v. Phila. Marine Trade Assoc., 389 U.S. 64, 76 (1967)). Defendants are correct that “[a] general injunction which in essence orders a defendant to obey the law is not permitted.” Id. However, “[i]njunctions are problematic when they order a defendant to obey the law but do not simultaneously indicate what law the defendant needs to obey”; injunctions ordering a defendant to obey a specific law are permissible. See In re Rodriguez, 695 F.3d 360, 369 (5th Cir. 2012) (citing Meyer, 661 F.2d at 373). Furthermore, this Order cites current law and DFPS policies for context rather than content. See Scott v. Schedler, 826 F. 3d 207, 211-14 (5th Cir. 2016). All of the actions which Defendants are required to take are spelled out within the four corners of this document.9 To the extent this clarification does not satisfy Defendants’ Objection, it is OVERRULED.
3. Requirement that Defendants Create Policies a. Objection
Defendants object that the orders requiring them to create and implement new policy fail to define the new policies or the standard they are to be designed to meet. (D.E. 556, Pages 1112 ¶ 2(b)).
b. Ruling on Objection Each Item cited by Defendants in this Objection states the minimum contents of the policy which DFPS is ordered to follow. The “standard” the new policy is designed to meet is
9 For example, Item 12 of Section D requires DFPS to “complete required initial face-to-face contact with the alleged child victim(s) in Priority One child abuse and neglect investigations involving PMC children as soon as possible but no later than 24 hours after intake.” The phrase “in accordance with DFPS policies and administrative rules” merely observes that this is a standard which DFPS itself has already promulgated (but does not follow); it does not add or detract anything from the Defendants’ obligations under the Order.
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therefore irrelevant to Defendants’ ability to comply with these Items, but the Court observes that the standard motivating all of its relief is that Texas’s foster children have the constitutional right to be free from an unreasonable risk of harm. (D.E. 368, Page 15); see supra at II.A.3.b. Defendants’ Objection is OVERRULED.
4. Requirement that Defendants Submit Remedial Plans a. Objection
Defendants object that orders requiring them to submit remedial plans impermissibly shift Plaintiffs’ burden of proof on remedies to Defendants. (D.E. 556, Page 12 ¶ 2(c)).
b. Ruling on Objection Defendants cite no authority for the proposition that courts may not order defendants to submit remedial plans. In fact, “[o]rders to responsible public officials to prepare and submit plans for remedying constitutional violations are not uncommon.” Inmates of Allegheny Cnty. Jail v. Wecht, 754 F. 2d 120, 128 n. 5 (3d Cir. 1985) (citing cases). Plaintiffs carried their burden of proof at trial, and the Court finds the remedies are necessary to cure the constitutional deficiencies. In each Item requiring submission of a plan, the Court has identified the constitutionally mandated minimum reforms the plans must include. Further, the Court overruled this same objection in its January 2017 Order and the Court hereby incorporates its reasoning by reference. (D.E. 500, Page 12). This Objection is OVERRULED.
5. Vagueness of the Term “Ensure” a. Objection
Defendants object that the term “ensure” used in many parts of the Plan is impermissibly vague and violates Rule 65’s specificity requirement. If “ensure” imposes a “zero tolerance,”
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absolute duty to perform, Defendants object that the order is impossible to perform. (D.E. 556, Page 13 ¶ 2(d)).
b. Ruling on Objection Defendants cite no authority in support of their contention that the term “ensure” is impermissibly vague. The words of an injunction must “provide explicit standards for those who apply them and give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 63 (1st Cir. 2011) (citations omitted) (internal quotation marks omitted). Additionally, the term “ensure” does not impose a “zero tolerance” duty to perform as Defendants suggest and even if it did, Defendants have not met their burden of showing impossibility. See United States v. Rizzo, 539 F.2d 458, 465-66 (5th Cir. 1976); CFTC v. Wellington, 950 F.2d 1525, 1528 (11th Cir. 1992). Accordingly, the provisions using the term “ensure” are not impermissibly vague. Therefore, the Objection is OVERRULED.
6. Vague Terminology Is Unenforceable a. Objection
Defendants object that various terms used in the Plan violate Rule 65(d) due to their vagueness. (D.E. 556, Pages 14-17 ¶ 2(f)).
b. Ruling on Objection The Court altered or provided clarification for any language it determined to be vague; such changes are noted below in the relevant parts of the section laying out the policies. Where the Court has not made such changes, it has determined that the existing language is sufficiently clear. This Objection is SUSTAINED IN PART and OVERRULED IN PART.
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7. Relief to Non-Class Members a. Objection
Defendants object that portions of the Plan provide relief to foster children who are not part of the certified class, and that those portions of the Plan are therefore overbroad. (D.E. 556, Pages 13-14 ¶ 2(e)).
b. Ruling on Objection The remedy ordered by this Court affects children in the Temporary Managing Conservatorship (“TMC”) of DFPS only to the extent necessary to ensure the constitutional violations against PMC children cease. Only two remedies directly affect TMC children. First, the Court’s requirement that medical records be collected upon intake, infra at III.G.1-3, is necessary because all PMC children begin their time in DFPS as TMC children, and if a child’s medical records are not acquired immediately, they may be irretrievably lost by the time the child enters PMC. (D.E. 500, Page 19). Second, the Court has expanded Section M of the Plan to provide direct relief to both PMC and TMC children in DFPS custody. See infra at III.M.13.b. Where the Order requires DFPS to restructure or develop certain procedures or technology systems, the Court has concluded that attempting to distinguish between PMC and TMC children would be impracticable and could lead to significant confusion. See, e.g., infra at III.J.1 (requiring implementation of new training procedures); III.K.1 (eliminating I See You workers). The Items to which Defendants object provide specific direction as to what is required, and the remedies are necessary to protect PMC children’s constitutional rights. Therefore, Defendants’ objection is OVERRULED.
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8. Relief Requiring Legislation or Appropriation of Funds a. Objection
Defendants object that none of the Defendants in this case (the Commissioner of DFPS, the Executive Commissioner of HHSC, and the Governor) have the power to enact laws or appropriate funds, and that therefore any orders requiring the passage of legislation or appropriation of funds are beyond the Defendants’ control and improper. (D.E. 556, Page 17 ¶ 2(g)).
b. Ruling on Objection It is clearly established that suits against state officials in their official capacities, like the suit here, are no different from a suit against the State itself. See, e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); Hafer v. Melo, 502 U.S. 21, 25 (1991); Ganther v. Ingle, 75 F. 3d 207, 209 (5th Cir. 1996) (“Federal claims against state employees in their official capacities are the equivalent of suits against the state.”). Since Defendants are state officials in their official capacities, the State of Texas is a Defendant in this case. As to Defendants’ argument about the inappropriateness of relief requiring the appropriation of funds, “a state cannot avoid the obligation of correcting the constitutional violations of its institutions simply by pleading fiscal inability.” New York State Ass’n for Retarded Children, Inc. v. Carey, 631 F.2d 162, 165 (2d Cir. 1980) (citing Dimarzo v. Cahill, 575 F.2d 16 (1st Cir. 1978); Welsch v. Likins, 550 F.2d 1122 (8th Cir. 1977); Rhem v. Malcolm, 507 F.2d 333, 341 (2d Cir. 1974)). It is true that “a federal district court ought not to put itself ‘in the difficult position of trying to enforce a direct order . . . to raise and allocate large sums of money, . . . steps traditionally left to appropriate executive and legislative bodies responsible to the voters.’” Id. (quoting Rhem, 507 F.2d at 341). But the Court is not ordering the State to
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allocate money. The Court is ordering the State “to rectify the [constitutional] violations . . . .” Id. The record shows that the Legislature is supportive of DFPS’s requests, see (D.E. 331, Pages 32-33), and in its last session (according to Defendants), the Legislature increased foster-care funding by almost $1 billion. (D.E. 556, Page 2). This same logic applies to the portion of the Objection complaining that Defendants cannot enact legislation. The Objection is OVERRULED.
9. Impossibility of Compliance a. Objection
Defendants object that the Plan’s timelines are unachievable and that the Plan “shows disregard for implementation science or even rational judgment regarding how to carry out systemic change across a large agency workforce.” (D.E. 556, Pages 17-18 ¶ 2(h)). Defendants add that even where compliance with a particular recommendation would be possible, compliance with the entire Plan would be “impossible or nearly impossible.” (D.E. 556, Pages 18-19 ¶ 3).
b. Ruling on Objection Defendants had over two years’ notice between the Court’s December 2015 Order and this final Order to make progress towards remedying the identified constitutional violations. Indeed, the December 2015 Order commanded the Defendants to “establish and implement policies and procedures” to protect PMC children from unreasonable risk of harm in all the areas specified by the Court in its December 2015 Order, (D.E. 368, Page 245),10 yet Defendants now insist that this Final Order does not give them enough time to adequately remedy any of the major problems identified with Texas’s foster care system. (D.E. 368, Page 245). Despite their complaints, Defendants have not presented any evidence that compliance with the remedies
10 See supra p. 4 n. 7.
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below would be impossible or prohibitively expensive. On the contrary, as the Court notes in responding to several of Defendants’ Specific Objections, when the Special Master asked the Defendants to propose their own timelines for implementing various proposed forms of relief, Defendants simply refused to respond. (D.E. 546, Pages 10-11, 113-17); see infra at III.
Defendants’ arguments that the need for funding makes many of the proposed policies impossible to perform lacks merit. The evidence related to funding presented at trial indicates that the Legislature has been incredibly responsive to DFPS’s requested funds. See (D.E. 331, Pages 32-33). Defendants state DFPS received nearly $1 billion in additional funding from the Legislature in its last session (D.E. 556, Page 2). DFPS does not indicate how this money is allocated or present any evidence as to the expense of the remedial policies as falling outside this nearly one billion dollar allocation. More importantly, “[t]he obligation of the [Defendants] to eliminate existing unconstitutionalities does not depend upon what the Legislature may do . . . or, indeed, upon what the [Defendants] may actually be able to accomplish.” See Wyatt v. Aderholt, 503 F. 2d 1305, 1314-15 (5th Cir. 1974) (quoting Holt v. Sarver, 309 F. Supp. 362, 385 (E.D. Ark. 1970)). Accordingly, the Objection is OVERRULED.
Where compliance is impossible, a defendant may raise impossibility as a defense to contempt proceedings. United States v. Rylander, 460 U.S. 752, 757 (1983). As Defendants declined to take advantage of their opportunities (or rather, their obligation) to work with the Special Master in formulating the Plan, and have failed to offer credible evidence of impossibility, Defendants’ objections would be better raised as a defense to a contempt proceeding than as a challenge to the injunctive remedy. Defendants bear the burden of production on any defense of present impossibility. Id.; see also Ala. Power Co. v. Costle, 636 F.2d 323, 359 (D.C. Cir. 1979).
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III. POLICIES AND PROCEDURES
The Court has determined the State of Texas violated PMC children’s right to be free
from an unreasonable risk of harm. The Court adopts and ORDERS Defendants to implement
the following policies to remediate this violation. These policies and procedures only apply to
PMC children unless specifically noted otherwise.11
A. PMC Child-Caseworker Visitation
1. Effective immediately, DFPS shall ensure that monthly face-to-face visits between caseworkers and children in the PMC class occur as required. The caseworkers’ visits with children in the PMC class must include time with the child separate from the caregiver(s) and other children, if the child is verbal. Effective immediately, DFPS shall ensure that caseworkers document monthly, private meetings with each verbal PMC child in their care, unless the reason for noncompliance is fully documented in the child’s electronic case record.
2. Effective immediately, DFPS shall ensure adequate12 training on its child visitation policies for all caseworkers responsible for visiting children in the PMC class.
3. Effective immediately, DFPS shall track caseworker-child visits and report quarterly to the monitor(s) on the number of monthly caseworker-child visits required and the percent and number that occurred. DFPS shall report for all referenced visits whether they involved face-to-face time with the child separate from the caregiver(s) and other children, if the child is verbal.
4. Effective immediately, DFPS shall ensure caseworkers who conduct visits with PMC children follow the agency’s contact guidelines, which they must document in the child’s electronic case record based on monthly visits with a child. The guidelines must require caseworkers, at least, to complete an assessment of the child’s safety, including an assessment of the placement; a confirmation that the child was interviewed individually, separately and privately from the caregiver and other children, if the child is verbal; a discussion of the form(s) of discipline being used in the placement; and a documented review of the child’s medical, mental health, dental and educational progress and needs.
11 These policies apply to all previously determined classes of PMC children in this matter. Although the Court did not certify the unverified kinship subclass, PMC children in kinship placements are a part of the certified general class, which includes “all children now, or in the future, in the Permanent Managing Conservatorship of the State of Texas.” (D.E. 213, Page 105). The Court only grants relief to PMC children in kinship placements in their capacity as members of the General Class; such relief “provide[s] relief to each member of the class.” See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). 12 “Adequate” means that the training shall focus on the importance of monthly, face-to-face private meetings with each PMC child, and further include instructions on documentation of non-compliance.
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a. Objection Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding caseworker visitation caused class-wide constitutional injury, and that all of Items in this section are therefore unjustified. (D.E. 556, Pages 19-20)
b. Ruling on Objection Former PMC youth testified at trial that their visits with caseworkers often were not private. (D.E. 327, Pages 188-89; D.E. 307, Page 16). The Court wrote extensively in its December 2015 Opinion about children who infrequently, or never, saw some of their conservatorship (“CVS”) caseworkers. (D.E. 368, Pages 165-168). The Special Masters reviewed case files, including those in the record of this matter. (D.E. 546, Page 3). Those records frequently did not indicate whether CVS caseworkers met with children monthly and privately. (D.E. 546, Page 3). The Special Masters asked DFPS where and how the agency tracks whether visits with children are privately conducted. (D.E. 546, Page 3). DFPS advised the Special Masters “there is no specific location in the IMPACT record where caseworkers must confirm that a child was interviewed in private or separately.” (D.E. 546, Pages 3, 113). The study of I See You Workers undertaken by the University of Texas-Austin to inform the Special Masters’ recommendations to the Court, concluded that 22 percent of assigned secondary I See You workers missed the monthly visit with the child. (D.E. 546, Pages 3, 10506). DFPS’ aggregate visitation data does not indicate how many, if any, of these visits were privately conducted. (D.E. 546, Page 3). Despite the Court’s December 2015 Opinion, DFPS still does not have a way to track how many caseworkers’ visits with children are private each month. (D.E. 546, Page 3).
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Caseworkers “do not have enough time to do more than cursory monthly home visits” of five minutes. (D.E. 368, Page 165). The record revealed that even cursory visits seldom occurred every month, and that a child’s case file might contain documentation of visits that never occurred. E.g., (D.E. 368, Pages 85-86, 104, 150, 168, 178, 180). Another state official, the Texas Comptroller, concluded in 2004 that DFPS was failing to perform required visits. (D.E. 386, Page 187). For example, named plaintiff J.S. was not visited by his primary caseworker at all in the four months following his allegation of having been sexually abused by his roommate. (D.E. 386, Pages 100-04). DFPS’s policy of requiring monthly visits is not practiced, and is therefore of no value. See Ruiz, 679 F. 2d at 1160; (D.E. 500, Page 11); supra at II.B.1. There is no evidence that Texas has since cured these defects.13
Furthermore, former foster children testified at trial that they were unable to report abuse to a caseworker because the abuser (often the caregiver) was present during caseworker visits. (D.E. 324, Page 64 Lines 3-16, Page 64 Line 22-Page 65 Line 15; D.E. 325, Page 169 Lines 14-25). The Special Master’s finding that DFPS records frequently fail to indicate whether caseworker visits occur privately confirms this testimony. (D.E. 546, Page 3).
Primary caseworkers are often a foster child’s “only continuous and stable relationship.” (PX 1871, Page 1). CVS caseworkers are among the few people that foster children look to for support and guidance. (D.E. 326, Page 85). Children need to feel comfortable telling their problems to their primary caseworker, making trust “highly important.” (D.E. 326, Page 85). Without consistent, private visits, the requisite trust cannot
13 The I See You Worker study conducted for the Special Master found that I See You workers, who are secondary workers that assist primary caseworkers, missed roughly a quarter of their scheduled visits in June 2017, which offers little hope that primary caseworkers have begun to make all of their monthly visits. (D.E. 546, Page 105); see infra at III.K.1.b.
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develop between a foster child and his or her caseworker. (D.E. 368, Page 179). When a
child’s caseworker fails to make regular contact, the “child’s feelings of rejection are
compounded and lead to feelings of distrust between the child and the ‘system.’” (PX 1988,
Page 100).14 The Objection is OVERRULED.
B. PMC Children’s Records
1. Within four months of the Court’s Final Order, DFPS shall submit to the Court a plan for an integrated computer system, with specific timeframes, that contains each PMC child’s complete records, including but not limited to a complete migration of all medical, dental, educational, placement recommendations, court records, mental health and caseworker records. The mental health, dental and medical information shall include all visits to the provider with detailed examinations, diagnoses, test results, immunizations, medications (including the reasons for each), history of abuse, treatment plans, and any other information necessary for the safety of the children. DFPS shall have this system fully functional within one year of the Final Order date.
2. The DFPS plan shall ensure that DFPS caseworkers and supervisors serving PMC children, as well as CASA staff and volunteers, and any public or private staff assigned to oversee PMC children’s care, have access to an integrated, current, complete and accurate case record for PMC children on their caseloads, consistent with prevailing state and federal law, including, for example, the child’s current legal status and permanency goal; the child's Transition Plan (where applicable); the child’s placement information and all safety-related and licensure/verification information about the child’s placement, including investigation and inspection reports, enforcement actions and internal reviews conducted by CPAs15; the child’s historic and current caseworker(s) and supervisor(s), with corresponding contact information; the child’s complete medical, dental, educational and mental health information and records.
a. Objections
Defendants object that the phrase “consistent with prevailing state and federal law” in
Item 2 is vague. (D.E. 556, Page 14).
14 For a more in depth discussion of the role and importance of caseworkers, see (D.E. 368, Pages 178-84) and infra at III.H. 15 Child Placing Agencies are private agencies contracted by DFPS to place foster children in homes. (D.E. 368, Page 256). CPAs account for 90% of foster placements. (D.E. 368, Page 229).
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Defendants restate their General Objection that implementing this policy within the time frame is impossible and would require legislative approval. (D.E. 556, Pages 21-23).
Defendants also object that giving external parties access to records will violate confidentiality laws and that the Plan fails to provide solutions to these issues. (D.E. 556, Pages 22-23).
Defendants object that there is no basis in the record for finding that DFPS’s existing recordkeeping systems caused class-wide constitutional injury, and that all of the Items in this section are therefore unjustified. (D.E. 556, Pages 20-21).
b. Ruling on Objections The phrase “consistent with prevailing state and federal law” in Item 2 is meant only to remind Defendants of their other legal obligations. Item 2 is not to be read as imposing on Defendants an additional duty to obey confidentiality laws at risk of being held in contempt. To the extent this clarification does not fully address Defendants’ Objection that Item 2 is vague, it is OVERRULED. The Court readdresses Defendants’ logistical Objection to remark that Defendants have known about the Court’s concerns with the IMPACT system since the Court identified them over two years ago in its December 2015 Order. (D.E. 368, Page 249). Despite this, Defendants have apparently done little to prepare for eventual reforms. The Special Master asked Defendants to assess and report the time needed to improve IMPACT so that it could store all of a child’s medical, dental, mental health, educational, and court records. (D.E. 546, Pages 10-11). Defendants’ response to each of these inquiries was “[n]ot applicable DFPS is not making such changes to the IMPACT system.” (D.E. 546, Pages 10-11, 116-17). Similarly, Defendants responded to the Special Master’s request for a draft plan to achieve the Court’s recordkeeping
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goals by stating “[n]ot applicable. Texas is not developing such a plan.” (D.E. 546, Pages 10, 116-117). Defendants now object, fifteen days after the Plan was filed, that the Plan’s timelines for these goals are “impossible.” (D.E 556, Page 21). Defendants offer no explanation for why they were unable to present the Special Master with the estimate they now present the Court in their Objections, that it could take $10 million and several years to reform IMPACT. (D.E. 556, Page 22). Even now, Defendants offer no evidence in support of this estimate. For these reasons, and the reasons given supra at II.B.9, this Objection is OVERRULED.
Defendants claim the Plan will require them to violate state and federal confidentiality laws, but other states have successfully addressed these issues by providing separate access codes to different groups of database users. See (D.E. 500, Pages 13-14). Item 2 permits Defendants to take the steps necessary to comply with state and federal confidentiality laws. When Defendants submit their plan for implementation of this portion of the order, they may note (with particularity) any laws that are an obstacle to full implementation, what solutions they have considered, and any alternative means of compliance they believe necessary. The Court will consider any such obstacles and alternatives then. In the meantime, Defendants must take whatever steps are necessary to achieve compliance. The remainder of this Objection boils down to a complaint that implementation will be costly or logistically difficult, and is OVERRULED.
The Court now turns to Defendants’ Objection as to basis. Due to DFPS’s burdensome administrative demands, such as filling out paperwork, CVS caseworkers are only able to spend 26% of their time with children. (PX 1993, Page 10; D.E. 300, Page 24). At trial, Dr. Viola Miller (who previously headed child welfare agencies in Kentucky and Tennessee) testified CVS caseworkers should spend “at least 40 to 50 percent” of their time working directly with children and families. (D.E. 302, Pages 6, 42). Dr. Miller further explained that the combination of
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DFPS’s excessive caseloads with its administrative burdens meant, “[i]n essence, [foster]
children may well not have a caseworker.” (D.E. 302, Page 43). DFPS is well aware that its
caseworkers often cannot keep up with required documentation when caseloads are high. See
(PX 1825, Page 2). Lack of documentation was especially problematic when caseworkers left
and their cases were redistributed. (D.E. 324, Page 16).
In the December 2015 Opinion, the Court included among its findings the following:
The problems of inadequate and incomplete caseworker documentation are considerably magnified by the way in which DFPS maintains foster children’s case files. Children’s records are not kept in a single location nor are they consistently maintained in chronological order. (See D.E. 343 at 1; see generally DX 120 (filed under seal)). Some of the children’s files are kept electronically on DFPS’s IMPACT casework system. Other children’s files are maintained entirely in External paper files. (D.E. 343 at 1-2; supra p. 80-81 nn.25 & 26). Additionally, records relating to abuse and neglect investigations of children in foster care are kept separately by RCCL in the CLASS database. (See supra p. 141 n.43). Although CVS caseworkers have access to the CLASS database, CLASS files are not merged with IMPACT files and it is unclear whether CVS caseworkers are trained, let alone have the time, to check whether children newly transferred to their caseloads have CLASS files. (See D.E. 343 at 2). Thus, not only are foster children’s case files shockingly long (358,102 pages of case files for the 20 children for whom the Court has records16), they are incredibly disorganized.
Further, inherent problems with DFPS’s outdated IMPACT system further impede caseworkers’ ability to review important electronic case file information. According to The Stephen Group, IMPACT “is not in sync with current versions of forms that are used [by caseworkers] and forces arbitrary workarounds and repetitive entry of data.” (PX 1993 at 15). This results in “delays and considerable frustration among caseworkers and can mean that those accessing the system might not have immediate availability to the most recent updates in a particular case.” Id. This creates opportunities for important safety-related tasks to “fall through the cracks,” especially when cases are transferred between workers. See id. It is unclear how easily CPS caseworkers can access their foster children’s RCCL files, and how often they do so when receiving new files. What is clear is that caseworkers’ continuously fail to maintain complete, timely, and accurate documentation. The resulting widespread neglect of important tasks
16 The Court also noted in its December 2015 order that these records, despite their great length, “contained no CPA investigation files, and there were no IMPACT or RCCL files for multiple children.” (D.E. 368, Page 166). Nor did these records include any medical, dental, school, or mental health records. (D.E. 500, Page 13 n. 14).
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relating to the safety and well-being of PMC children is indicative of a system where caseworkers’ workloads are unmanageable. (D.E. 368, Pages 168-69). And the Court further determined: DFPS paperwork and electronic filing system, including IMPACT, CLASS, and the External files, must become more efficient. Each child should have a readily accessible and organized case file, comprised of all records pertaining to that child. The Court was routinely frustrated at the disorganization, duplication, and inconsistency in the foster children’s case files. Caseworkers should be able to spend more than 26% of their time with foster children. (D.E. 368, Page 249). In its December 2015 Order, the Court noted it took eleven uninterrupted workweeks to read the twenty foster children’s case files that were in evidence in excess of 350,000 pages. (D.E. 368, Page 166); see also (DX 120). Considering the dangerously high turnover rate, this task must be duplicated numerous times for each child, making it impossible for caseworkers to have enough time to focus on the children. (D.E. 368, Page 166); see infra at III.J. Even where a caseworker does review the entirety of a child’s voluminous records, vital information such as history of abuse may be missing. For example, the record shows that when DFPS investigated an allegation that J.T. had sexually abused his roommate, the investigator wrote that “[t]here was no mention in the client file of the [earlier] investigation involving J.T. sexually abusing a child in a previous foster home.” (D.E. 304, Pages 51-52). K.E.’s records included an e-mail from an I See You worker to K.E.’s primary caseworker about an incident where another child in K.E.’s foster placement bloodied K.E.’s nose, but the records contained no record of any follow-up into the incident, or of K.E. ever receiving medical treatment for the injury. (D.E. 368, Page 135). Medical and educational records were frequently inadequate. Z.H.’s educational records were inconsistent with respect to such basic information as what grade he was in for a given
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year; K.E.’s records did not reveal whether she ever attended the sixth or eighth grades. See (D.E. 368, Pages 131-32). S.R. was diagnosed with developmental problems and a court ordered that S.R. receive genetic testing, but S.R.’s records do not indicate whether such testing ever occurred. (D.E. 368, Page 151). Five-year-old J.V. was prescribed Focalin for ADHD, but his records do not contain an evaluation justifying that prescription. (D.E. 368, Page 108).17
More general deficiencies were also present in the records reviewed by the Court. J.V.’s record noted that his therapist thought J.V. might be acting out because he wanted to leave a treatment center and return to his adoptive home, but J.V.’s record does not indicate whether his caseworker ever acted on the therapist’s suggestion that the caseworker ask the adoptive mother if that would be possible. (D.E. 368, Page 124). The records for an eight-sibling group were shorter than those for a single foster child; the case files included no RCCL files and frequently discussed all eight children at once, “even though they were often placed separately and had different caseworkers, making the files difficult to follow.” (D.E. 368, Page 141).
As the Court found in the December 2015 Opinion, DFPS maintains PMC children’s records among numerous electronic and paper files, stored in different locations and maintained by distinct custodians. (D.E. 368, Page 168; D.E. 546, Page 5). As the Court determined, the trial record, including exhibits, revealed evidence of children’s records missing information, containing incomplete information and reflecting information that was inconsistent with information in other files. See (D.E. 368, Pages 166-69); see generally (D.E 368). The Special Masters’ examination of these case records among the trial exhibits, and other children’s records
17 The December 2015 Order extensively documented the high number of psychotropic drugs used on PMC children. See, e.g., (D.E. 368, Pages 70-72, 82, 107, 113, 129-30, 226). For example, M.D. was prescribed 16 psychotropic drugs while in care, often taking five or six medications at a time. (D.E. 368, Pages 70-72). At trial, Commissioner Specia acknowledged that “many stakeholders felt that [foster] children were overmedicated,” though he stated that DFPS had significantly reduced usage of psychotropic drugs since 2004. (D.E. 331, Page 54). Because caseworkers are medical consenters, the Court anticipates that, with more complete medical records, these occurrences may be more carefully evaluated.
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as described below, confirmed that PMC children’s records are currently stored in different
locations with different custodians. (D.E. 546, Page 5).
These records are:
A. The STAR Health Passport is an electronic record maintained by DFPS’s healthcare vendor, Superior HealthPlan. The passport allows users to view service utilization for medical, dental, behavioral and mental health care. The passport includes information tabs, including a medical history tab. The passport can log health history, service dates, medical events, allergies, immunizations and diagnoses. The passport is not compatible with, or linked to, the IMPACT system, described below. The passport does not currently have the functionality for uploading most documents, such as birth certificates, medical, dental, developmental and psychological evaluations, or the capacity to store these documents. Superior HealthPlan staff and clinical providers can enter information into the passport, but not DFPS staff or caregivers. The passport is viewable by Superior HealthPlan staff, DFPS caseworkers, foster care agency providers, medical consenters (foster parents), health providers and Court Appointed Special Advocates (CASAs).
B. IMPACT is the main electronic data system administered by DFPS. IMPACT is not compatible with, or linked to, the passport described above. IMPACT has the capacity to include, among other things, caseworkers’ notes, child abuse and neglect history, placement history, a child’s photograph, investigative history, service dates, court orders, medical event dates, dental event dates and assessments. As described below, the Special Masters observed in a random sample audit of PMC children’s files that IMPACT frequently contained less health-related information than the passport. IMPACT does not currently have the functionality for uploading most documents, such as birth certificates, school records, legal documents, medical, dental, developmental and psychological evaluations or the capacity to store these documents. DFPS staff have access to relevant information in IMPACT; Attorneys ad litem do not. DFPS implemented Case Connection in September 2014, which is a web-based program that gives CASA staff and volunteers access to a child’s IMPACT based case information. Through Case Connection, CASAs can view certain placement, healthcare, education, permanency and demographic information.
C. CLASS (the Child Care Licensing Automation Support System) which tracks inspection and investigative work in PMC’s children’s licensed residential placements, among other settings. An allegation of child abuse or neglect involving a PMC child while in a licensed residential setting can be linked to the child’s history page in IMPACT.
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D. Because IMPACT and the STAR Health Passport cannot store most documents, PMC children’s medical, dental, developmental and psychological assessments, and children’s birth certificates, must be separately maintained in paper files when DFPS acquires them. These files are in different locations. Paper records may be housed by the caregiver (i.e. the foster parent) at the child’s placement or at the offices of the agency supervising the placement. The primary CVS worker also typically stores a paper record, including the child’s birth certificate, in her DFPS office. Medical/service providers may also keep children’s records at their places of business.
E. Education records are located in at least two places. The name of the child’s school, the school year and the enrollment/discharge date(s), can be located in the IMPACT personal detail tab. Information about the child’s educational needs can be tracked in the educational portfolio section of IMPACT. A separate paper-based system, often called the Green Binder, is intended to contain the PMC child’s complete educational information, including report cards, progress notes, classification for specialized services and school enrollment history, and is supposed to follow a child from placement to placement. When a Green Binder exists, it is maintained by the child’s placement provider.
F. Foster and adoptive home screenings and evaluations for PMC children are frequently kept in paper files maintained by the community agency that supervises the child’s placement
(D.E. 546, Pages 5-7).
On May 4, 2017, Special Master Kevin Ryan and John Ducoff, a member of the Special
Master team, met with DFPS leadership to discuss DFPS’s child welfare record keeping systems
and to test those record keeping systems by examining the electronic files of 21 children in the
PMC class, selected randomly by Mr. Ryan from among the 10,551 children identified by DFPS
as being in the PMC class on March 31, 2017. (D.E. 546, Page 7). The STAR Health Passport
contained more information about children’s medical and mental health care, including
procedure dates, types of procedures and diagnoses, but the information in the STAR Health
Passport and IMPACT did not align nearly half the time. (D.E. 546, Page 7). Of the 21
randomly selected PMC children whose electronic case records were reviewed by Mr. Ryan and
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Mr. Ducoff, the dates of the child’s last medical examination listed in IMPACT mirrored, or closely approximated, the dates of the child’s last medical examination in the Health Passport in 11 cases, and differed in 10 cases.18 (D.E. 546, Page 7).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, 14 children had a current (within one year) photo in their IMPACT case record; two children had a photo that was slightly overdue for updating in their IMPACT case record (by two and three weeks at the time of the review); and five children did not have a recent photo in their IMPACT case record. (D.E. 546, Page 7).
All of the children had a verified Social Security Number in their IMPACT case file. (D.E. 546, Page 7).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the IMPACT system contained no uploaded medical records, dental records, educational records or mental health records. (D.E. 546, Page 8). DFPS said those records may be in the possession of the primary CVS worker, or may not be in DFPS’s possession, but instead held by the caregiver, or the providers. (D.E. 546, Page 8).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the IMPACT system recorded that 16 children had a recent (within 6 months) dental examination, two children appeared slightly overdue for a dental examination (by two weeks) and three children did not have a timely dental examination listed. (D.E. 546, Page 8). The examinations were not included in the IMPACT system. (D.E. 546, Page 8).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the IMPACT system recorded that 17 children had a timely medical examination
18 Mr. Ryan shared the results of the audit with DFPS through counsel and solicited feedback before finalizing and sharing the findings with the Court.
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and four children did not have a timely medical examination listed. (D.E. 546, Page 8). The examinations were not included in the IMPACT system. (D.E. 546, Page 8).
In addition to the IMPACT system, Mr. Ryan and Mr. Ducoff also reviewed children’s records in the Star Health Passport system. (D.E. 546, Page 8). In general, Mr. Ryan and Mr. Ducoff observed that the STAR Health Passport often contained more information about children’s medical and mental health care, including procedure dates, procedure types and diagnoses. (D.E. 546, Page 8). However, the 21 passports did not include copies of medical examinations, ER visit reports, hospitalization documents or dental examinations, even when those events were indicated. (D.E. 546, Page 8).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the STAR Health Passport recorded that 15 children had a current dental examination, five children did not and one child appeared to be slightly overdue for a dental examination (within ten days). (D.E. 546, Page 8).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the Health Passport recorded that 20 children had a timely medical examination and one child was overdue for a medical examination. (D.E. 546, Page 8).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the Health Passport and/or the IMPACT system reflected that 11 children had a psychological assessment of some type within the past three years. (D.E. 546, Page 9). The records were unclear or information was absent for seven children, and two children were infants. (D.E. 546, Page 9). The psychological assessment documents were not included in IMPACT or the Health Passport. (D.E. 546, Page 9).
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Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the dates of the child’s last medical examination listed in IMPACT mirrored, or closely approximated, the dates of the child’s last medical examination in the Health Passport in 11 cases, and differed in 10 cases. (D.E. 546, Page 9).
Of the 21 PMC children whose electronic case records were reviewed by Mr. Ryan and Mr. Ducoff, the dates of the child’s last dental examination listed in IMPACT mirrored, or closely approximated, the dates of the child’s last dental examination in the Health Passport in 11 cases, and differed in 10 cases. (D.E. 546, Page 9).
Further, in a March 16, 2017 hearing, multiple DFPS officials stated they did not know whether e-filing medical records was a requirement of the State’s contracts with medical providers. (Status Conference, Mar. 16, 2017, at 11:12:05). Commissioner Whitman told the Court that he would explore making e-filing medical records a contractual requirement. (Status Conference, Mar. 16, 2017, at 11:17:29). However, the Special Master subsequently observed this was not happening. (D.E. 546, Page 5). The Special Master also discovered, through the I See You worker study, that even when workers were medical consenters, they often did not have access to medical records. (D.E. 546, Page 34); see infra at III.K.
In February and March 2017, Mr. Ryan and Deborah Fowler, a member of the Special Master team, visited the residences of eight randomly selected Foster Group Home caregivers in Texas. (D.E. 546, Page 9). The Foster Group Home caregivers each knew that the children’s education records were contained in a Green Binder, which followed the child from placement to placement. (D.E. 546, Page 9). In two instances, caregivers said the Green Binder was housed in the offices of the community agency assigned to monitor the Foster Group Home and was not available for inspection during the visit. (D.E. 546, Page 9). In six instances, the Green Binder
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was in the home of the Foster Group Home caregiver and contained the child’s educational records, including enrollment information, report cards and information on learning disabilities and accommodations. (D.E. 546, Page 9). Mr. Ryan visited a randomly selected Residential Treatment Center in Harris County in March 2017, and was advised that some of the children did have Green Binders on site, including their education information, and others did not. (D.E. 546, Page 9).
The Court’s Order of January 2017, included in Section V.B.: The Special Masters are ordered to work with DFPS to create and submit to the Court a plan for a comprehensive central databank for PMC children. The databank shall include: 1. Medical records; 2. Dental records; 3. Mental health records; 4. School records; 5. Court records; 6. Caseworker notes; and 7. Placement evaluations. (D.E. 500, Page 13). In an effort to comply with the Court’s Order, the Special Masters asked DFPS to provide a draft plan to achieve the Court’s goals. (D.E. 546, Page 10). DFPS declined to share a draft plan, replying “Not applicable. Texas is not developing such a plan.” (D.E. 546, Pages 116-17). In an effort to comply with the Court’s Order, the Special Masters requested that DFPS assess and report the time needed to improve its IMPACT system so that all of a child’s medical records are included and available in an identified health section of a child’s case file in IMPACT. (D.E. 546, Page 10). DFPS replied the request was “[n]ot applicable. DFPS is not making such changes to the IMPACT system.” (D.E. 546, Page 113-15). In an effort to comply with the Court’s Order, the Special Masters requested that DFPS assess and report the time needed to improve its IMPACT system so that all of a child’s dental records are included and available in an identified health section of a child’s case file in
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IMPACT. (D.E. 546, Page 10). DFPS replied the request was “[n]ot applicable. DFPS is not making such changes to the IMPACT system.” (D.E. 546, Pages 113-15).
In an effort to comply with the Court’s Order, the Special Masters requested that DFPS assess and report the time needed to improve its IMPACT system so that all of a child’s mental health records are included and available in an identified health section of a child’s case file in IMPACT. (D.E. 546, Page 10). DFPS replied the request was “[n]ot applicable. DFPS is not making such changes to the IMPACT system.” (D.E. 546, Pages 113-15).
In an effort to comply with the Court’s Order, the Special Masters requested that DFPS assess and report the time needed to improve its IMPACT system so that all of a child’s educational records are included and available in an identified education section of a child’s case file in IMPACT. (D.E. 546, Pages 10-11). DFPS replied the request was “[n]ot applicable. DFPS is not making such changes to the IMPACT system.” (D.E. 546, Pages 115-16).
In an effort to comply with the Court’s Order, the Special Masters requested that DFPS assess and report the time needed to improve its IMPACT system so that all of the court records pertaining to a child’s case are included and available in an identified legal section of a child’s case file in IMPACT. (D.E. 546, Page 11). DFPS replied the request was “[n]ot applicable. DFPS is not making such changes to the IMPACT system.” (D.E. 546, Pages 113-15). DFPS continues to maintain it is not developing such a plan. (D.E. 546, Page 11, 116-17).
Given the comprehensive record established at trial and the Special Master’s findings, Defendants’ Objection that this Section is without basis is OVERRULED.
C. Current PMC Child Photograph 1. Effective immediately, the electronic case record of each child in the PMC class
must include the child’s photograph that is not more than one year old, except as provided in paragraph three, below.
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2. Effective immediately, when a child enters the PMC class, DFPS shall ensure that a photograph is taken of the child within 48 hours and uploaded into the child’s electronic case record promptly. DFPS shall ensure the date of the photograph is recorded in the child’s case record.
3. Effective immediately, with respect to all PMC children under the age of three years, DFPS shall ensure that photographs are taken and uploaded to the child’s IMPACT case record at least semi-annually and the date of the photograph must be recorded in the child’s case record.
4. Effective immediately, DFPS shall ensure adequate training to all caseworkers on how to use the appropriate technology to photograph a child and upload the photograph to the child’s electronic case record. a. Objection Defendants object that there is no basis in the record for finding that existing DFPS
policies or practices regarding child photographs caused class-wide constitutional injury, and that all of the Items in this section are therefore unjustified. (D.E. 556, Page 23).
b. Ruling on Objection In its December 2015 Order, the Court found the frequency of runaways necessitated the availability of a recent photograph. (D.E. 368, Page 249 n. 54). Named plaintiff M.D. had a history of running away from placements, and engaged in drug use and sex work while she was outside DFPS custody. (D.E. 368, Pages 64-69). After her final, successful runaway attempt, a national missing children organization informed DFPS that M.D. may have been arrested. (D.E. 368, Page 68). The organization provided DFPS with a picture of M.D., but M.D.’s caseworker was unable to positively identify her, because neither her caseworker nor anyone else in the unit had ever met her. (D.E. 368, Pages 68-69, 249 n. 54). DFPS did not act on the tip until urged by M.D.’s attorney ad litem, who saw the photo and immediately recognized it as being of M.D. (D.E. 368, Pages 68-69). However, by then two weeks had passed, and M.D. was gone. (D.E. 368, Pages 68-69). M.D. has not been seen nor heard from since. (D.E. 368, Page 69). The
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remedies in this section are necessary in order to prevent repeats stories like M.D.’s from
recurring.
Consistent with the Court’s goals in the December 2015 Order, DFPS improved its
electronic case management system, IMPACT, to include a location for a child’s photograph to
be uploaded. (D.E. 546, Page 12). As of the Special Masters’ case record review in May 2017,
DFPS had not ensured that the electronic case record of each child in the PMC class included a
child’s photograph that is not more than one year old. (D.E. 546, Page 12). The Court again
reiterates that policies not practiced are of no value. See Ruiz, 679 F.2d at 1160; see supra at
II.B.1. The Objection is OVERRULED.
D. Screening and Investigating Reports of Abuse/Neglect Regarding PMC Children
1. Effective immediately, DFPS shall ensure that it maintains a statewide, 24-hour hotline accessible by PMC children in DFPS custody to report abuse and neglect. The hotline shall receive, screen and assign for investigation reports of maltreatment of children in the PMC class.
2. DFPS shall ensure that reported allegations of child abuse and neglect involving children in the PMC class are investigated; commenced and completed on time consistent with the Court’s Final Order; and conducted taking into account at all times the child’s safety needs. The monitor(s) shall periodically review the statewide system for appropriately receiving, screening and investigating reports of abuse and neglect involving children in the PMC class to ensure the investigations of all reports are commenced and completed on time consistent with Items 9-16 of this Section of the Court’s Final Order and conducted taking into account at all times the child’s safety needs.19
3. In order to ensure that PMC children have access to the 24-hour hotline to report abuse and neglect, within 30 days of the Court’s Final Order, DFPS shall either require all foster homes and therapeutic foster homes housing PMC children to maintain a landline phone accessible to the child in the home, with the toll-free hotline number appended to the landline or, in the alternative, DFPS shall present an alternative plan to the Court within 30 days of the Court’s Final Order to ensure PMC children have access to the hotline to report abuse and neglect.
19 Defendants object that the phrase “pursuant to current policy and regulation” in Item 2 is vague. (D.E. 556, Page 14). The Objection is SUSTAINED. The Court has modified the language of this Item.
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a. Objection Defendants object that requiring phone lines in every home housing a PMC child would require additional funding and is unnecessary. (D.E. 556, Pages 24-25).
b. Ruling on Objection “[C]onstitutional rights are not, of course, confined to those available at modest cost.” See Ruiz, 679 F.2d at 1146 (“[I]n considering remedies for unconstitutional deprivation, the cost of one proposed remedy in comparison with the cost of others and the demonstrable need for the remedy should both be considered.”).20 The Court finds that Item 3 is necessary to protect PMC children from an unreasonable risk of harm. See infra at III.D.16. Defendants have not provided any evidence of cost despite repeated requests for information by the Special Master and Defendants’ representation to the Court that they would look into the feasibility of requiring landline phones in each foster home. (D.E. 546, Pages 16-17, 118, 128-29; D.E. 521, Page 2). Even so, the cost of landline phones seems trivial compared to the $1 billion in additional funding which DFPS received in the last session of the Texas Legislature. See (D.E. 546, Page 2). Further, at a March 16, 2017 hearing, the Court suggested to Commissioner Whitman that, as DFPS pays placements a minimum of $1,400 per month, 21 it could make it a requirement that caregivers have landline phones available to PMC children at the caregivers’ expense. (Status Conference, Mar. 16, 2017, at 10:45:50). Commissioner Whitman replied he would check into the possibility but there is no indication he did. Id.; (D.E. 546, Pages 128-29).
20 Where there is no alternative adequate remedy, “a state cannot avoid the obligation of correcting the constitutional violations of its institutions simply by pleading fiscal inability.” See New York State Ass’n for Retarded Children, Inc. v. Carey, 631 F.2d 162, 165 (2d Cir. 1980); see also supra at II.B.8-9. 21 Effective September 2017, the minimum “combined CPA retainage and foster home payment” is $48.47 per day for a Basic level child, with higher payments made for children with higher service levels. 40 Tex. Admin. Code § 700.1753(s). This comes out to just over $1400 per month for a Basic level child. CPAs account for 90% of foster placements. (D.E. 368, Page 9; DX 119, Page 72).
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Despite this Court’s order that Defendants establish policies to protect children from an unreasonable risk of harm and cooperate with the Special Masters, Defendants responded to the Special Master’s request for a draft policy on landline phones by stating “[n]ot applicable. DFPS neither has nor will be developing such a policy or regulation.” (D.E. 546, Pages 16, 118). In May 2017, almost two months after their representation to the Court that they would look into the feasibility of a landline phone policy, Defendants informed the Special Master they were still “considering the feasibility and utility of requiring a landline phone in each foster home.” (D.E. 546, Pages 16, 128-29). No further information was provided to the Special Master before he filed the Implementation Plan in December 2017. To date, Defendants do not even have a means of tracking which PMC children have access to a phone to report abuse and neglect. (D.E. 546, Pages 16-17). Though the record reflects that DFPS policy requires informing children of the phone number to report abuse, there is no indication that the children can utilize this number. See (D.E. 325, Pages 168-69; D.E. 324, Page 200).
The Court is not persuaded that Defendants’ proposed alternative of educating PMC children about the option of reporting maltreatment to teachers, nurses, or other “trusted individuals” would be equally effective. (D.E. 556, Page 24). The record indicates that many PMC class members have no trusted figures in their lives. (D.E. 325, Page 170-71); see also (D.E. 307, Page 17); supra at III.A.4. Moreover, at least in Residential Treatment Centers (“RTCs”),22 PMC children may attend school at the facility, and thus may not have access to any figures who are not co-workers of their abusers. (D.E. 325, Page 168). The Court finds that a dedicated landline alleviates these issues. This Objection is OVERRULED.
22 Residential Treatment Centers are a subset of General Residence Operations (“GRO”). GROs are facilities caring for more than 12 children for 24 hours a day; RTCs are GROs for children with more serious physical and mental health needs. See (D.E. 368, Pages 256).
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4. Effective May 2018, DFPS shall ensure that all caseworkers and caregivers are trained to recognize and report sexual abuse, including child on child sexual abuse.
5. Effective immediately, DFPS shall ensure that investigations of abuse and neglect of PMC children while they are in licensed placements are conducted by staff whose caseload is exclusively focused on child maltreatment investigations.
6. Effective March 2018, and ongoing thereafter, DFPS shall ensure the central case record of every child in the PMC class includes documentation confirming the method(s) discussed with the child for notifying DFPS if the child needs to report abuse or neglect. For children who are verbal, the documentation must include the date the reporting methods were discussed with the child and confirmation of their level of understanding. The discussion with the child must occur within 48 hours of entering any new placement.
7. Within 60 days of the Court’s Final Order, all calls to the DFPS 24-hour hotline shall be recorded. All recorded calls shall be stored for at least two years using a call recording system. Recordings shall be made available to the monitor(s) for monitoring and verification purposes.
8. Effective March 2018, and ongoing thereafter, DFPS shall ensure that a welltrained, experienced and qualified supervisor reviews and approves all screening decisions at the 24-hour hotline involving children in the PMC class. The monitors will conduct routine audits of screened-out reports involving children in the PMC class to confirm that DFPS conducted a complete review of the available record (including past intake reports involving the child and the placement) and due consideration was given to the risks to children when determining whether to assign a matter for investigation.
9. Effective March 2018, DFPS shall ensure that all abuse and neglect referrals to the 24-hour hotline regarding a foster home where any PMC child is placed, which are not referred for a child abuse and neglect investigation, are shared with the PMC child’s caseworker and the caseworker’s supervisor within 48 hours of DFPS receiving the referral. Upon receipt of the information, the PMC child’s caseworker will review the referral history of the home and assess if there are any concerns for the child’s safety or well-being, and document the same in the child’s electronic case record.
10. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with existing DFPS policies and administrative rules, initiate Priority One child abuse and neglect investigations involving children in the PMC class within 24 hours of intake. (A Priority One is by current policy assigned to an intake in which the children appear to face a safety threat of abuse or neglect that could result in death or serious harm.)
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11. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with existing DFPS policies and administrative rules, initiate Priority Two child abuse and neglect investigations involving children in the PMC class within 72 hours of intake. (A Priority Two is assigned by current policy to any CPS intake in which the children appear to face a safety threat that could result in substantial harm.)
12. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with DFPS policies and administrative rules, complete required initial face-to-face contact with the alleged child victim(s) in Priority One child abuse and neglect investigations involving PMC children as soon as possible but no later than 24 hours after intake.
13. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with DFPS policies and administrative rules, complete required initial face-to-face contact with the alleged child victim(s) in Priority Two child abuse and neglect investigations involving PMC children as soon as possible but no later than 72 hours after intake.
14. Effective March 2018 and ongoing thereafter, DFPS shall track and report all child abuse and neglect investigations that are not initiated on time with faceto-face contacts with children in the PMC class, factoring in and reporting to the monitors quarterly on all authorized and approved extensions to the deadline required for initial face-to-face contacts for child abuse and neglect investigations.
15. Effective March 2018, DFPS shall, in accordance with DFPS policies and administrative rules, complete Priority One and Priority Two child abuse and neglect investigations that involve children in the PMC class within 30 days of intake, unless an extension has been approved for good cause and documented in the investigative record. If an investigation has been extended more than once, all extensions for good cause must be documented in the investigative record.
16. Effective March 2018 and ongoing thereafter, DFPS must track and report monthly all child abuse and neglect investigations involving children in the PMC class that are not completed on time according to this Final Order. Approved extensions to the standard closure timeframe, and the reason for the extension, must be documented and tracked. If an investigation has been extended more than once, all extensions for good cause must be documented in the investigative record.
a. Objection
Defendants object that there is no basis in the record for finding that class-wide
constitutional injury resulted from existing DFPS policies or practices regarding screening and
investigation of reports of abuse or neglect, and that all of the Items in this Section are therefore
unjustified. (D.E. 556, Page 23).
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b. Ruling on Objection DFPS’s existing systems for reporting abuse and neglect, including its reporting hotline (Statewide Intake), are plainly inadequate. The trial record includes multiple pieces of testimonial evidence describing children’s inability to reach out for help. The former foster children testified that they were unable to tell a caseworker about abuse because the abuser (often the caregiver) was present. (D.E. 324, Page 64 Lines 3-16, Page 64 Line 22-Page 65 Line 15; D.E. 325, Page 169 Lines 14-25). PV testified she did not know who to trust, so she stayed quiet. (D.E. 324, Page 200 Lines 3-17). When PV did try to report abuse to a caseworker, nothing ever came of it. (D.E. 324, Page 200 Lines 3- 17). KS (“KS”) testified that at one of his placements he could not make a phone call without getting permission. (D.E. 325, Page 169 Lines 14-24). KS testified he never had the opportunity to report his sexual abuse because someone was constantly monitoring his access to the outside world. (D.E. 325, Page 169 Lines 14-25). KS also testified that he did not know there was a number he could call and that if there was such a number, he would not have had access to it. (D.E. 325, Page 176 Lines 8-17). Additionally, the next friends of named plaintiffs described those children’s frustrations with not having a way to reach out. See (D.E. 324, Page 224 Line 22-Page 226 Line 21 and D.E. 327, Page 188 Line 22-Page 189 Line 11). The December 2015 Order found that these problems are systemic and likely led to an underreporting of abuse. (D.E. 368, Pages 205-06). The record indicates that even abuse reported by credible outside sources often goes unaddressed. For instance, a CASA worker called DFPS’s hotline to report that named plaintiff M.D. had bruises all over her body due to physical restraints which had been placed on her by RTC staff, but nothing came of the report. (D.E. 324, Pages 224-25). A school nurse called Statewide Intake after visiting named plaintiff L.H. at her foster home and finding L.H. and her
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siblings “outside barefoot” “without jackets,” appearing dirty and malnourished. (D.E. 368, Pages 144-45). Although the intake report also noted that the foster mother’s boyfriend was “charged with abusing” L.H., CPS ruled out all allegations of abuse and neglect. (D.E. 368, Page 145). One of the more troubling instances was attorney ad litem Anna Ricker’s (“Ricker”) testimony about her experience reporting abuse and neglect in a Levelland facility. (D.E. 368, Page 204). Ricker visited a child who was non-verbal, had fingernails that curled forward to touch his fingers, an unexplained “goose-egg” on his forehead, and was clothed in a torn shirt and pants, which he had to hold up with his hand. (D.E. 368, Page 204). Ricker visited this facility on numerous occasions, each time finding another child with a black-eye. (D.E. 368, Page 204). Ricker twice reported the abuse and neglect at this facility but RCCL Ruled Out the allegation based solely on information provided by staff and children. (D.E. 368, Page 204). RCCL never contacted Ricker. (D.E. 326, Page 212-14).
The Court’s December 2015 Opinion required that “[f]oster children must be allowed telephone access to reach out to” the 24-hour, toll-free child abuse and neglect hotline. (D.E. 368, Page 249). The Court’s January 2017 Order concluded that “[a]ll foster homes, [F]oster [G]roup [H]omes, and therapeutic foster homes housing PMC children should be required to maintain a landline phone accessible to the child in the home, with the toll-free hotline number appended to the landline.” (D.E. 500, Page 14). The Court’s goals grew from findings, detailed in the December 2015 Opinion, that children were subject to serious physical and sexual abuse that was not reported to the DFPS toll-free, 24-hour child abuse and neglect hotline, known as Statewide Intake. E.g., (D.E. 368, Pages 205-06).
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Consistent with the Court’s orders in this matter, the Special Masters requested that DFPS provide a draft policy and/or regulation to require that Child Placement Agency23 (“CPA”) residential providers maintain a landline phone that connects directly to the DFPS toll-free, 24hour screening hotline. (D.E. 546, Pages 14-15). DFPS originally responded on March 8, 2017 that the request from the Special Masters was “[n]ot applicable. DFPS neither has nor will be developing such a policy or regulation.” (D.E. 546, Pages 16, 118).
During a status hearing before the Court in March 2017, DFPS stated and the Court recorded in its March 17, 2017 Order, “DFPS agreed to examine the possibility of requiring a landline phone accessible to the children in each foster home.” (D.E. 521, Page 2); see (D.E. 546, Page 16); supra at III.D.3. DFPS subsequently advised the Special Masters in May 2017 that DFPS was still “considering the feasibility and utility of requiring a landline phone in each foster home.” (D.E. 546, Pages 16, 128). Despite the Court’s orders in this matter, DFPS also reports “it does not have a means of tracking which PMC children are placed in care with access to a phone to report abuse and neglect.” (D.E. 546, Pages 16-17, 122-23).
For the reasons stated above, the policies are necessary to protect PMC children from an unreasonable risk of harm. The Objection is OVERRULED.
E. PMC Youths’ Preparation for Independence 1. Effective immediately, DFPS shall ensure and document that all youth in the PMC
class, aged 16 or older, receive copies of their birth certificate a n d social security card upon turning 16.24 2. Effective immediately, DFPS shall ensure and document that all youth in the PMC class, prior to aging out of care, receive copies of their birth certificate, social security card, most current high school transcript, copies of their last physical health
23 Child Placing Agencies are private agencies contracted by DFPS to place foster children in homes. (D.E. 368, Page 256). CPAs account for 90% of foster placements. (D.E. 368, Page 229). 24 Defendants object that the phrase “all other documents that law or policy entitles them to receive” is impermissibly vague. (D.E. 556, Page 14). The Objection is SUSTAINED. The Court has deleted the language from the Order.
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and dental examinations, copies of their immunization record, and copies of identifying information needed for Medicaid. DFPS must document an acknowledgment of receipt, along with a short description of the youth’s plan for safekeeping the documents, signed by the youth and their caseworker in the electronic case record prior to the youth aging out of care.25 Prior to the youth aging out of care, DFPS shall take all reasonable steps, including the filing of an application, to assist the youth in signing up for either Former Foster Care Children’s Medicaid26 or Medicaid for Transitioning Foster Care Youth,27 and shall document those steps in the child’s electronic record.28 Each of these programs requires an affirmative act to change from the under-18 Medicaid to the over-18 previous foster care Medicaid.29 See (D.E. 331, Pages 56-57).
3. Effective within three months of the Court’s Final Order and ongoing thereafter, DFPS shall identify all PMC youth aged 14 and older who have not yet received the following DFPS independent living preparation services: the life skills assessment, a Circles of Support (COS) or Transition Plan Meeting (TPM), and a recently updated (within six months for youth 16 and older and one year for youth 14 and older) transition plan. DFPS shall ensure that all PMC youth who have been identified immediately above, receive these services and that the PMC youth’s transition plan is developed.
4. Effective June 2018, DFPS shall ensure all 14- and 15-year-old youth in the PMC class receive DFPS’ Preparation for Adult Living (PAL) services.
5. Effective June 2018, DFPS shall ensure that if a PMC youth’s disability is a barrier to participation in PAL services or supports, appropriate accommodations shall be identified that allow the youth to meaningfully participate, and DFPS shall document any accommodations in the child’s electronic case record.
6. Effective June 2018, DFPS shall ensure PMC youth receive a life-skills assessment within 45 days of turning 14, and are reassessed annually, and that the results of these assessments are documented and available in the child’s electronic case record.
7. Effective June 2018, DFPS shall ensure that PMC youth receive DFPS’s Circles of Support (COS) or Transition Planning Meeting (TPM) within 45 days of turning 14 years old, and then receive either COS or TPM in conjunction with the child’s
25 Defendants object that the phrase “all other documents that law or policy entitles them to receive” is impermissibly vague. (D.E. 556, Page 14). The Objection is SUSTAINED. The Court has altered the language of this Item. 26 Health Care: Medicaid for Former Foster Care Children, https://yourtexasbenefits.hhsc.texas.gov/programs/health/child/former-foster-care. 27 Health Care: Medicaid for Transitioning Foster Youth, https://yourtexasbenefits.hhsc.texas.gov/programs/health/child/transitioning-foster-care. 28 Commissioner Specia testified at trial that DFPS already has a regular practice of assisting youths with this process. (D.E. 331, Page 57). 29 Without these programs, foster youths would typically lose medical coverage as soon as they left foster care. See (D.E. 331, Page 56).
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permanency planning meeting every four months, until the youth ages out or attains permanency. The purpose of such meetings is to develop a youth’s transition plan with an eye toward building skills to support a youth’s specific strengths and address needs in preparation for independence.
8. Effective March 2018, DFPS shall ensure that primary caseworkers assigned to PMC children develop a plan, in consultation with the child’s attorney ad litem, to facilitate the sealing or expungement of any eligible criminal or juvenile records for offenses for which the youth was adjudicated or convicted prior to the youth aging out of care. DFPS shall ensure the efforts to do so are documented in the child’s electronic case record.
9. Effective March 2018, DFPS shall ensure that the caseworker puts a plan in place prior to a PMC youth turning 18 years of age, documented in the case record, detailing how the youth will access benefits the youth is eligible to receive once they leave DFPS care, including the DFPS transitional living allowance, Social Security Disability Insurance benefits, the DFPS aftercare room and board assistance, and DFPS’s Education and Training Vouchers.
10. Effective June 2018, DFPS shall ensure driver’s education classes are provided to all PMC youth who are old enough to receive a learner’s permit and choose to take driver’s education. DFPS may create exceptions for PMC youths who are not developmentally or medically able to safely participate in driver’s education.30
a. Objection
Defendants object to the logistical challenges of implementing Item 10 and to Item 10
imposing requirements which the Texas Legislature considered but declined to impose. (D.E.
556, Pages 25-26).
b. Ruling on Objection
Defendants state that it is “unclear” whether it is possible to procure PMC youths the
insurance necessary to participate in the experiential learning portions of driver’s education
classes, but provided no evidence this is the case. The Court finds this Item necessary to protect
PMC children from an unreasonable risk of harm. See Ruiz, 679 F. 2d at 1146; see also infra at
III.E.12.b. Accordingly, Defendants’ Objection is OVERRULED.
30 Defendants object to Item 10 on the ground that not all youths old enough to participate in driver’s education are developmentally capable of doing so. (D.E. 556, Page 26). This Objection is SUSTAINED. The Court has modified Item 10 accordingly.
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11. Effective immediately, DFPS shall ensure that a plan is in place, and documented in the case record, to provide all PMC youth age 16 and older with safe, stable housing upon exit from care. a. Objection Defendants object to Item 11 if read to require DFPS to arrange and pay for housing,
which would require legislative direction and appropriations. (D.E. 556, Page 26). Defendants also state youths may determine where they live upon aging out of care. (D.E. 556, Page 26).
b. Ruling on Objection The Court clarifies that Item 11 does not require the State to arrange and pay for housing of PMC youths who age out. Once youths turn 18, they cease to be members of the PMC class. Rather, Item 11 requires DFPS to develop and document a plan for each PMC youth to have housing upon aging out—whether this be through DFPS’s existing extended foster care program, referral to a shelter, or some other means. To the extent this clarification does not fully address Defendants’ Objection to Item 11, it is OVERRULED. 12. Effective immediately, DFPS shall ensure that prior to exiting care, each PMC youth age 14 and older is assisted in creating e-mail accounts so that they may receive encrypted copies of personal documents and records, in addition to receiving copies of originals.
a. Objection Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding preparation of PMC youth for independence cause class-wide constitutional injury, and that all of the Items in this Section are therefore unjustified. (D.E. 556, Page 25).
b. Ruling on Objection In the December 2015 Opinion, the Court found:
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Specia also acknowledged that the “longer children stay in the custody of the state the harder it is for them to achieve a permanent home.” (D.E. 299 at 63, 83; see also PX 1988 at 9). Thus, another consequence of rotating overburdened caseworkers, which disrupts permanency planning, is that 1[2]00-140031 foster children age out of the system each year. It is widely recognized that foster youths who age out generally experience poorer life outcomes. These youths leave the system with few life skills and little, if any, support. As Burstain wrote before joining DFPS, aging out of care is an outcome DFPS tries to avoid as aged out youths “have no permanent place to call home and often have a difficult time.” (PX 1877 at 36). Burstain reaffirmed this sentiment at trial, saying that children for whom DFPS has failed to find a permanent home and who age out are “likely . . . to be harmed.” (D.E. 310 at 55). This is especially true for children who age out while living far from their home communities and support networks, often lacking the resources or ability to return. As of August 2014, approximately 60% of all foster children were placed outside their home county. (DX 183 at 4). Thus, aging out in a foreign community is commonplace. As a result, these children frequently end up homeless, participating in “criminal activities in order to survive, trespassing in vacant homes or stealing or human trafficking, prostitution, those kind of things in order to have a place to stay.” (D.E. 307 at 15; see also PX 1872 at 4).
Aged out foster youths often experience “serious, and in some cases disabling, physical and mental health care issues” and are likely to suffer from posttraumatic stress disorder (“PTSD”) due to “the traumas and frequent moves and transitions experienced in foster care.” (PX 1988 at 10). According to Casey Family Programs, former foster youths suffer from PTSD at nearly five times the rate of the general population and nearly twice the rate of United States combat veterans. Id. at 57, 71. In addition, aged out foster youths often have significantly lower educational attainment than their peers. Id. at 53-55, 58-59. Foster youth in general are “much more likely to be held back than their peers.” Id. at 54. This is due in part to the frequent school changes, which means they are “often absent for large parts of the school year, lose academic credits due to midsemester moves, and often have incomplete school records due to missing transcripts.” Id. at 53-54. Foster children are also significantly overrepresented in special education classes—at a rate of over four times that of the general population—which may be an underestimate. See id. at 55. Many do not finish high school. Id. at 58. Fewer than 2% of former foster children complete college. Id. at 56.32
Talley, who previously worked at DFPS as a Preparation for Adult Living coordinator, testified that the 800 former foster youths for whom she provided
31 (D.E. 546, Page 20); see infra p. 52. 32The Court has continuing concern over foster care children who enter care at a Basic needs level and age out from a residential treatment center on multiple psychotropic drugs, indicative of warehousing children. See, e.g., (D.E. 368, Pages 56, 82, 95-103, 106-28, 146, 150, 225-27; D.E. 325, Pages 21-22, D.E. 323, Pages 97-98; PX 50, Pages 29-30); see also (DX 120 at DFPS009030795-96, DFPS009048706, 1 RFP CPS 123302) (filed under seal).
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services, the majority of which were in PMC, were simply being “maintain[ed] in foster care until they aged out.” (D.E. 323 at 84-85). [Sandra] Carpenter [of the non-profit organization “Angel Reach”] testified that aged-out children lack independent living skills. (See D.E. 307 at 8, 13, 29- 30). They do not know how to answer a phone, take or leave a message, cook a meal for themselves, or load a dishwasher. Id. They do not know how to fill out a job application, let alone drive a car to get to work. Id. at 29-30. According to [Dr. William] Carter, none of the Named Plaintiffs who are on the cusp of aging out, or have by now aged out, “have sufficient adaptive living skills that are necessary for even a minimally reasonable chance at a decent” life. (D.E. 326 at 129). None of them were involved in any extracurricular activities at school or had any vocational training or employment experience. Id.
(D.E. 368, Pages 184-85).
After trial, DFPS Commissioner Whitman, a Defendant in this case, said in a hearing
before the Texas Senate Finance Committee that 27% of youths who age out “end up in the
criminal justice system” and “a majority of them will fall into sex trafficking.” (D.E. 500, Page
15). For example, former foster child Kristopher Sharp (“Sharp”) testified that after aging out,
he lived on the roof of a strip mall in Houston for six months, engaging in sex work to survive.
(D.E. 325, Page 179). Moreover, this cycle repeats itself: 49% of women who age out of the
foster care system are pregnant by age 19 and 70% of those children end up in foster care. (D.E.
307, Pages 13-14). Sharp’s testimony highlighted a continuing concern of overmedication in residential treatment centers. E.g., (D.E. 368, Page 56).33 For instance, he testified he
continued taking psychotropic drugs for Bipolar Disorder, Schizophrenia, and Oppositional
Defiant Disorder after aging out, until he visited a psychiatrist, “who told him to stop taking his
medications because he did not have those disorders.” See (D.E. 368, Page 226). The Court
reiterates its concern that children enter residential treatment centers with basic needs and age
33 “[C]hildren often enter foster care at the Basic service level, are assigned a carousel of overburdened caseworkers, suffer abuse and neglect that is rarely confirmed or treated, are shuttled between placements— often inappropriate for their needs—throughout the State, are migrated through schools at a rate that makes academic achievement impossible, are medicated with psychotropic drugs, and then age out of foster care at the Intense service level, damaged, institutionalized, and unable to succeed as adults.” (D.E. 368, Page 56).
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out from residential treatment centers, where they have been given multiple psychotropic drugs.
See (D.E. 368, Pages 225-27).
DFPS reported that 1,180 youth aged out of care in 2015 and 1,250 youth aged out of
care in 2016. (D.E. 546, Page 20). Earlier in the Opinion, the Court summarized the testimony
of the State expert who oversaw extended foster care for children who age out:
Jenny Hinson (“Hinson”) is the Division Administrator for Permanency at CPS. (D.E. 314 at 4). She supervises a team of seven subject matter experts and with them is responsible for developing and administering policies and programs for children in DFPS conservatorship. (See id. at 221; DX 259 at 1). She has been in her current position since 2010, but has been at DFPS since 1998. Hinson has worked as a statewide intake specialist, caseworker, supervisor, program director, program administrator, and program specialist. (D.E. 327 at 222-23; DX 259 at 12). While Hinson focuses on CPS policies that relate to permanence, she seems to know little about how her policies actually affect permanency. Id. at 6-9. For example, she oversees extended foster care for children who age out, but does not know how many children benefit from that program, or the effectiveness of that program. Id. at 8-9. Similarly, while she said that independent living classes are offered to all foster children age 16 and up, Hinson does not know how many children attend those classes. She believes that number is fewer than 50 out of the 1[2]00-140034 children who age out annually. (Id. at 21-22; see also DX 24 at 14 (showing that 1410 youths aged out in 2011); DX 119 at 221 (showing that 1328 youths aged out in 2013)).
(D.E. 368, Pages 35-36).
Texas law and DFPS’s own policies require DFPS to prepare foster youths for
adulthood. See, e.g., Tex. Fam. Code Ann. § 264.121 (West); CPS Handbook Section 10111
(requiring foster care providers to provide experiential life skill training through practical
activities); CPS Handbook Section 10222 (life skills training). The record summarized
above shows DFPS fails to satisfy those requirements. The Court reiterates that policies not
practiced are of no value. See Ruiz, 679 F.2d at 1160; see supra at II.B.9. The Objection as
to basis is OVERRULED.
34 (D.E. 546, Page 20); see supra p. 52.
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F. Attorneys ad Litem for PMC Children 1. Effective immediately, DFPS shall request the appointment of an Attorney ad litem
for all PMC children from each court in which a suit is pending in which a PMC child does not have Attorney ad litem representation, citing the Court’s Final Order.
a. Objection Defendants object that the issue of PMC children’s entitlement to attorneys ad litem was not tried, that the Special Master’s recommendation on this issue is erroneous as a matter of law, and that the Special Master has no demonstrated expertise on the issue. (D.E. 556, Page 27).
b. Ruling on Objection The Court’s January 2017 Order refers to the “loss of liberty” each PMC child experiences by virtue of their removal from home and their assignment to placements. (D.E. 500, Pages 16-19). In the Court’s original December 2015 Opinion, the Court observed that “when a child enters PMC, courts often dismiss the child’s Attorney ad litem and CASA, leaving the child with fewer stable relationships and advocates. (PX 1988 at 15; see also supra pp. 78).” (D.E. 368, Page 170); see also (D.E. 368, Pages 7-8; PX 1988 at 15). Attorneys ad litem set hearings, file pleadings, and, more generally, notify the court when a child needs assistance. (D.E. 323, Page 68). Noting in the January 2017 Order that “[m]ost PMC children also do not have an attorney ad litem,” the Court analyzed the vulnerability of children in the PMC class, the liberty interests at stake, and concluded: PMC children are entitled to counsel at every step of their legal journey through the Texas foster care system . . . . The Court can order, at a minimum, that DFPS request ad litem appointment from each court in which a suit is pending, citing this Order. Additionally, the Court will consider ordering DFPS to reimburse the ad litem attorney’s fees to the appointing court. The Special Masters are ordered to work with DFPS to evaluate the efficacy of these options and propose a procedure for the appointment of an attorney ad litem for each PMC child within 3 months from the date of this order.
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(D.E. 500, Pages 18-19). When the Special Masters asked DFPS about these options, the agency replied, “Not applicable. DFPS declines to speculate on a process that is and should be governed by counties and individual judges.” See (D.E. 546, Page 119).
The Special Masters asked DFPS to identify how many PMC children did not have an attorney as of September 2017. (D.E. 546, Page 22). DFPS responded that it “does not track this information.” See (D.E. 546, Page 124).
The Court’s finding that PMC children are entitled to an attorney ad litem is consistent with Supreme Court precedent regarding the rights of foster children. In Parham v. J.R., the Supreme Court held that foster children in Georgia were not entitled to adversarial process when the State, acting as their legal guardian, desired to have them committed to a mental hospital. 442 U.S. 584, 617-20 (1979). The Parham Court’s holding acknowledged that the lack of natural affinity between the State and its foster wards may cause some foster children who were committed to mental hospitals to become “lost in the shuffle,” and that a different process may therefore be required for reviewing the continuing need for institutionalization, as opposed to Georgia’s initial decision that institutionalization was necessary. Id. at 619-20. As this Court stated in its January 2017 Order, PMC children in RTCs “are effectively institutionalized and subject to indefinite confinement without the opportunity for review.” (D.E. 500, Page 17). This is precisely the sort of situation in which foster children may be “lost in the shuffle,” and the Court finds that an attorney ad litem is necessary to protect PMC children’s liberties.
Additionally, the Parham Court held that the record before it did not allow a challenge to the state-law presumption that Georgia acted in the best interest of its foster children. Parham, 442 U.S. at 618. Here, there is copious evidence in the record of DFPS failing to act in the best interests of PMC children—whether through over-medication (D.E. 368, Pages 72, 107, 112-14,
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129-30, 226); prioritizing TMC children over PMC children on the ground that PMC children are “stable” (D.E. 323, Pages 37-38, 67-69); or putting DFPS’s litigating position in this suit over the welfare of named plaintiff H.V. (D.E. 326, Pages 221-24). More fundamentally, the Court has already found the State of Texas exposes PMC children to an unreasonable risk of harm; this fact is inconsistent with a presumption that Texas acts in the best interests of PMC children. See (D.E. 368, Page 160). Many foster children lose their attorney ad litem and CASA volunteer when they enter PMC, but the record shows that PMC children have no lesser need for an advocate. (D.E. 368, Page 170).
For all these reasons, and because the Objection relitigates an issue addressed in the Court’s December 2015 Order and its January 2017 Order, the Objection is OVERRULED.
2. Within 30 days of the Court’s Final Order, DFPS shall present a plan to the Court to ensure reimbursement to Attorneys ad litem in those courts that do not currently provide Attorneys ad litem for PMC children. If DFPS fails to present a plan, DFPS shall reimburse those fees necessary to provide Attorneys ad litem in those courts that do not currently provide Attorneys ad litem for PMC children. a. Objection Defendants object that requiring DFPS to pay ad litem attorneys’ fees violates Texas
Family Code § 107.015 and would pose ethical issues and conflicts of interest. (D.E. 556, Page 27).
b. Ruling on Objection Defendants argue that the attorney ad litem order violates Texas Family Code § 107.015. However, by its own terms, § 107.015 is inapplicable, because this Court is not “the court” referenced in § 107.015 and because reimbursement to the attorneys ad litem is not being made “under this chapter [Chapter 107 of the Texas Family Code]”, but pursuant to this Court’s order and the Fourteenth Amendment. See Tex. Fam. Code Ann. § 107.015(c). DFPS already
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had an opportunity (and obligation) to propose its own draft plan, but responded to the Special
Master’s request for information by saying it “declines to speculate on a process that is and
should be governed by counties and individual judges.” (D.E. 546, Pages 21-22, 119); see supra
at III.F.1. Nor does DFPS track how many PMC children have an attorney ad litem. (D.E. 546,
Pages 22, 124).
Defendants also object on the ground that this Item creates conflicts of interest.
However, it is common for appointed counsel to be funded by the governmental entity it faces in
litigation. No conflict of interest arises from a state’s constitutional duty to effectuate an
individual’s right to counsel. Cf. Sanford v. United States, 2009 WL 2524891, at *3 (E.D.N.Y.
Aug. 14, 2009) (rejecting as frivolous criminal defendant’s argument that court-appointed
attorney had conflict of interest because appointed counsel was paid by the United States). The
situation here is akin to federally funded and appointed defense attorneys appearing against the
U.S. Attorney’s Office or to a county prosecutor appearing in court opposite a public defender or
other court-appointed counsel paid through county funds. Accordingly, Defendants’ Objection is
OVERRULED.
G. PMC Children’s Health 1. Within 30 days of the Court’s Final Order, DFPS shall present the Court with a plan
to address and remediate missing and nonexistent medical and mental health care records, consistent with the American Academy of Pediatrics “Fostering Health: Healthcare for Children and Adolescent in Foster Care.” (D.E. 488).
2. DFPS shall institute and incorporate caseworker training (minimally into the Conservatorship Specialty Track) about child health that describes: a. The health vulnerabilities of foster youth (pages 1 and 2 of the American Academy of Pediatrics “Fostering Health: Healthcare for Children and Adolescent in Foster Care”); b. Specifically, how to use child and family visits to obtain and update healthcare information; c. The utility of children’s electronic case record, for improving the health of foster youth.
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3. Effective immediately, DFPS shall make every effort to obtain and make available a child’s medical records within 24 hours of the child entering the custody of DFPS. Caseworkers shall document their efforts to obtain and make available children’s medical records within 48 hours of children entering DFPS custody;
4. Effective June 2018, DFPS will ensure that every PMC child has a medical home. The medical home is a health care delivery model led by a health care provider to provide comprehensive and continuous medical care and care management to patients with a goal to obtain positive health outcomes. The medical home shall be obliged (by policy and contract): a. To maintain and update all medical fields of the child’s central electronic record; b. To coordinate care for routine and emergency healthcare needs; c. To ensure timely evaluations and assessments for all health needs, including behavioral health (including psychotropic oversight), dental care, and chronic health conditions.
5. Effective June 2018, DFPS shall ensure children in the PMC class receive a specific developmental assessment of at least one of the following screenings within 90 days of each child’s birthday: a. Birth to 10 years: Ages and Stages Questionnaire, Ages and Stages Questionnaire: Second Edition, or the PEDS developmental screening and assessment;35 b. 11 years to 21 years: the Pediatric Symptom Checklist (PSC)-35, the Youth Pediatric Symptom Checklist (Y-PSC), the Patient Health Questionnaire-9 (PHQ-9), or the CRAFFT screening test).36 c. If DFPS does not believe any of these tests to be reliable, it may propose its own developmental assessments to the Court within 30 days of the date of this Order.
Screening results from the developmental assessment, including follow-up/red flag items, shall be inputted into the child’s electronic case record within 72 hours;
6. Effective June 2018, DFPS shall ensure the child’s central electronic case record has functional internal (red flag) alerts notifying caseworkers of: a. Follow up needed; b. Assessments/screening required or indicated; c. Evaluations required or indicated; d. Immunizations required or indicated; and
35 The assessments listed in Item 5(a) are listed among the screenings which have been “validated” by the American Academy of Pediatrics. See American Academy of Pediatrics, Star Center, https://www.aap.org/en-us/advocacyand-policy/aap-health-initiatives/Screening/Pages/Screening-Tools.aspx (last visited Jan. 12, 2018). 36 The assessments listed in Item 5(b) are included in the American Academy of Pediatrics’ Bright Futures Tool and Resource Kit because of “their accessibility and reliability based on current research.” See American Academy of Pediatrics, Bright Futures Tool and Resource Kit: Developmental, Behavioral, Psychosocial, Screening, and Assessment Forms, https://brightfutures.aap.org/materials-and-tools/tool-and-resource-kit/Pages/DevelopmentalBehavioral-Psychosocial-Screening-and-Assessment-Forms.aspx (last visited Jan. 12, 2018).
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e. Appointments missed or cancelled. 7. Effective May 2018, DFPS shall institute a policy that uses the caseworker visits to
verify and report on health status by answering and documenting in the PMC child’s electronic case record these questions:
a. Are there outstanding red flag37 items for this child? i. Greater than 20 days? ii. Greater than 90 days?
b. Has this child visited a healthcare practitioner in the last 90 days? c. Can this child (over 11) name his/her health care needs?
a. Objection Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding PMC children’s health cause class-wide constitutional injury, and that all of the Items in this Section are therefore unjustified. (D.E. 556, Page 27).
b. Ruling on Objection The Court observed in its December 2015 Opinion that “rape, abuse, psychotropic medication and instability are the norm” for PMC children, and many children’s records, included as exhibits to the trial, were missing important health information. (D.E. 368, Page 255). The children’s records include serious concerns of sexual and physical abuse but the records indicate the children were not timely (or ever) examined by doctors to determine if they had been assaulted. (D.E. 546, Page 24). Injuries went untreated. (D.E. 546, Page 24; D.E. 368, Pages 109, 133, 135). Necessary medical follow-up did not occur. (D.E. 546, Page 24; D.E. 368, Page 152). Incomplete and missing healthcare information was a common feature of the records. (D.E. 546, Page 24). In its January 2017 Order, the Court directed “the Special Masters to work with DFPS to develop a healthcare plan to address missing or nonexistent healthcare records. The recommended guideline shall be the American Academy of Pediatrics’ ‘Fostering Health: Healthcare for Children and Adolescents in Foster Care.’” (D.E. 500, Page 19).
37 The term “red flag” in Section G, Item 7 is defined by Section G, Item 6(a)-(e)
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The Court supra in III.B has discussed the lack of medical, mental, and dental records
available in DFPS records. Even when there are notations of appointments, there are no records
of what occurred such as testing, examinations, medications or reasons therefore. Further, this
means that the caseworkers, who serve as medical consenters, do not have information available
to evaluate consent. See (D.E. 546, Page 109). The Objection is OVERRULED.
H. Caseworker Workload
1. Effective June 2018, DFPS shall ensure that the full-time staff, including supervisors,38 who provide case management services to children in the PMC class, whether employed by a public or private entity, have a caseload within or below the range of 14 to 17 children. Caseloads for staff must be pro-rated for those who are less than full-time. Caseloads for staff who spend part-time in caseload carrying work and part-time in other functions must be pro-rated accordingly. The caseload range for staff with mixed caseloads, for example caseworkers serving both PMC and TMC children, will also be 14 to 17 children’s cases, and each TMC child’s case will be afforded the same weight in the caseload calculation as a PMC child.
2. Effective immediately, DFPS shall track caseloads on a child-only basis, as ordered by the Court in December 2015. Effective immediately, DFPS shall report to the monitor(s), on a quarterly basis, caseloads for all staff, including supervisors, who provide primary case management services to children in the PMC class, whether employed by a public or private entity, and whether full-time or part-time. Data reports shall show all staff who provide case management services to children in the PMC class and their caseloads. In addition, DFPS’s quarterly reporting shall include the number and percent of staff with caseloads within, below and over the range of 14 to 17 children, by office, by county, by agency (if private) and statewide. Reports will include the identification number and location of individual staff and the number of PMC children and, if any, TMC children to whom they provide case management. Caseloads for staff, as defined above, who spend part-time in caseload carrying functions and part-time in other functions must be pro-rated accordingly. The caseload range for staff with mixed caseloads, for example caseworkers serving both PMC and TMC children, shall be 14 to 17 children’s cases, and each TMC child is to be afforded the same weight as a PMC child. Reporting will be by office, by county, by agency (if private) and statewide.
3. Effective immediately, DFPS shall commence recruiting, hiring and training staff, and ensuring any private entities that are charged by DFPS to provide case management services to children in the PMC class do the same, to ensure that staff
38 As stated below in the Section on Supervisors, supervisors who oversee caseworkers serving PMC children shall not directly carry a caseload unless there is a documented emergency requiring the supervisor to do so.
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who provide case management services to children in the PMC class, whether employed by a public or private entity, have a caseload within or below the range of 14 to 17 children.
a. Objections Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding caseworker workload cause class-wide constitutional injury, and that both of the Items in this Section are therefore unjustified. (D.E. 556, Page 28). Defendants object that compliance with this section is impossible because additional funding and hiring authority must be requested from the Legislature. (D.E. 556, Page 29). Defendants argue it is impossible for DFPS to begin recruiting and hiring immediately because it hires to its cap and would need additional appropriations to hire above the cap. (D.E. 556, Page 29).
b. Ruling on Objections The Court’s December 2015 Opinion discussed at length the harm PMC children faced because of overburdened and frequently replaced caseworkers. E.g., (D.E. 368, Pages 176-79). A multitude of evidence, including DFPS personnel’s own admissions, showed children are harmed when caseworkers are overburdened. (PX 1966, Page 11; D.E. 311, Page 21; D.E. 299, Page 55-56; D.E. 305, Pages 12-13). Manageable caseloads allow caseworkers to visit with children and families more often, ensure children are safe, ensure families are getting needed services, and reduce the paperwork load. (D.E. 368, Page 163; PX1877, Page 10). When caseloads are unmanageable, PMC children are affected the most and are the first ones to be “pushed to the side.” (D.E. 368, Page 165-66; D.E. 323, Page 37). The record contains numerous instances of PMC children not having contact with their caseworker for months. (D.E. 324, 368, Page 166); see supra at III.B.
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As but one example of the effect overworked caseworkers have, attorney ad litem Ricker described how she would call the caseworker, the supervisor, the supervisor’s supervisor, and then simply instruct someone in her office to call every hour on the hour until they reached the caseworker. (D.E. 326, Pages 199-200). Estella Vasquez (“Vasquez”), another attorney ad litem, offered similar testimony about how inaccessible caseworkers are. (D.E. 327, Pages 18993). Vasquez added that caseworkers are supposed to give attorneys ad litem case reports ten days in advance of court hearings, but in “the vast majority” of cases, they do not; “[v]ery often” they get the reports on the day of the hearing, making it impossible to review the reports and sometime requiring courts to reset hearings. (D.E. 327, Pages 191-92). This delays the provision of important services like counseling to foster children. (D.E. 327, Pages 192-93).
Despite these facts, DFPS “puts no limits on the caseload size that a conservatorship worker can carry.” (D.E. 305, Pages 25, 27-28). The Court found regardless of the exact point at which caseloads become so excessive they cause an unreasonable risk of harm, DFPS has crossed it. (D.E. 368, Page 164). The record shows that as of July 2014, 31% of CVS caseworkers with at least one PMC child had caseloads of 1-15 children; 26% had caseloads of 16-20 children; 21% had caseloads of 21-25 children; 13% had caseloads of 26-30 children; 6% had caseloads of 31-35 children; and 3% had caseloads of 36 or more children. (PX 2129). As a point of reference, 43% of DFPS’s caseworkers had caseloads above the most lenient professional standard before the Court. (D.E. 368, Page 164). The Court also found the situation is likely worse because DFPS’s calculations included workers who were on leave, secondary workers, part-time workers, and fictional workers created out of overtime hours. (D.E. 368, Page 164).
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Even DFPS’s own caseworkers agree that they are overworked. (D.E. 368, Page 165). Over 55% of DFPS caseworkers agree “they do not have adequate time during the workday to successfully do their job.” (D.E. 368, Page 165; DX 119, Page 21). Additionally, over half believe DFPS’s expectations for their job performance are unreasonable. (D.E. 368, Page 165; DX 119, Page 21). Testimony from caseworkers at trial indicated caseloads of between forty and sixty “stages” were typical. (D.E. 323, Page 34). Weekly overtime was the rule for caseworkers, not the exception. (D.E. 368, Page 165; D.E. 323, Pages 34-35). These caseloads caused caseworkers to experience “[e]xtreme stress, burnout, wearing down [and] anxiety.” (D.E. 368, Page 165; D.E. 323, Page 39). DFPS caseworkers spend most of their time doing triage and “putting out fires” due to the sizeable caseloads. (D.E. 368, Page 165; D.E. 323, Page 35-36).
The Stephen Group found that CPS had a “culture of fear where caseworkers are focused more on meeting numbers and checking off boxes than on the quality of service for the children in families under their care.” (D.E. 368, Page 170 (quoting PX 1993, Page 19)). Texas’s Sunset Commission and State Auditor’s Office each described CPS’s work environment as fear-driven and punitive. (D.E. 368, Page 170). As the Court noted in its December 2015 Order, “[i]n such an environment, it is only natural that overextended caseworkers prioritize TMC children who have more deadlines and concretely tracked benchmarks.” (D.E. 368, Page 170).
There was also evidence presented in the case of supervisors carrying a caseload, which detracts from their ability to oversee the caseworkers they supervise. (D.E. 546, Page 25). Judy Bowman Pitts, Regional Director of Regions 4 and 5, testified that supervisors occasionally have their own caseload and a supervisor will help when a caseworker leaves. (D.E. 327, Page 14 Line 23-Page 16 Line 17). A CPS Field Operations Division Briefing also noted that newly promoted
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supervisors are managing their own remaining cases as well as their new supervisor responsibilities. (DX 25, Page 2). The same briefing stated in Lubbock County, when a caseworker leaves and a case only requires documentation to close, the supervisor will be responsible. (DX 25, Page 3). Further, DFPS supplied data to the Special Masters indicating that on July 31, 2016, 89 supervisors served as the primary caseworker for PMC and TMC children. Of those 89 supervisors, 83 carried fewer than 14 cases with the highest caseload being between 24 and 27 cases. (D.E. 496, Page 2).
As the Special Masters reported in November 2016, DFPS produced to the Special Masters an Executive Summary of a Work Measurement Study, as ordered by the Court in December 2015, conducted from August 1, 2015, through March 31, 2016. (D.E. 471, Page 5; D.E. 368, Page 250). This Court-ordered study concluded that CVS caseworkers (including primary caseworkers, I See You workers, and various specialists) expended an average of 9.7 hours per month on case profiles most often associated with PMC children, and that these workers had an average of 137.9 hours per month to spend on their casework, including overtime. (D.E. 485; D.E. 471, Page 5). The study’s author reported that the study’s findings mean that each caseworker (as defined above) has time to serve an average of 14 PMC children each, to the exclusion of TMC children. (D.E. 493, Page 1; D.E. 471, Page 5).
The study provides that since cases involving TMC children require more time, for each addition to a caseload of a TMC child, PMC caseload is reduced by more than one child. (D.E. 500, Page 21). Therefore, if you add one TMC child to a caseworker’s load of fourteen PMC children, the caseload must be reduced by more than one child, according to DFPS’s own study. As the Court observed in its January 2017 Order:
Removing “I See You Workers” from the calculation decreases the number of PMC cases a CVS caseworker can physically handle. (D.E. 471 at 11.1)
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Nevertheless, the Court accepts the Work Study as providing the definitive number of PMC children that a CVS caseworker can physically handle. (D.E. 500, Page 21). It is axiomatic that adding more than 14 children to a caseworker can cause an unreasonable risk of harm to those children. Nevertheless, the Court allows a total caseload maximum of 14-17 children. The Court relies on DFPS’s own study to determine, with overtime, how many children a caseworker can safely handle. After reviewing the study and discussing its conclusions with the DFPS author, the Special Masters asked DFPS to determine how many additional CVS workers would be required to achieve CVS workloads of no more than 14 children per worker. (D.E. 546, Page 25). DFPS declined to do so, replying it was “not feasible” to provide the information.39 (D.E. 546, Page 129). Further, the Court takes judicial notice that the legislature approved DFPS’s request for additional caseworkers and salary increases that the administration hoped would bring the caseload down to 26 children per caseworker.40 Hearing Before the Tex. Senate Committee on Finance Part I, 85th Leg. Session, Jan. 30, 2017, at 1:38:59, available at http://tlcsenate.granicus.com/MediaPlayer.php?view_id=42&clip_id=11611; (D.E. 500, Page 7). However, the Court also takes judicial notice that Commissioner Whitman testified before the Senate Finance Committee on January 30, 2017 that a $12,000 pay raise had not affected attrition rates. Id. at 1:42:05. For all of these reasons, and for the reasons stated in the Court’s January 2017 Order and December 2015 Order, the Objection as to basis is OVERRULED.
39 DFPS responded, “DFPS has reviewed, and it is not feasible to provide this information. In addition, DFPS reiterates that there is no evidentiary basis for the caseload limit utilized in this question.” (D.E. 546, Page 129). 40 The Court took judicial notice of similar statements made to the Texas legislature in its January 2017 Order and the Court’s findings concerning the Court’s ability to take judicial notice is hereby incorporated by reference. See (D.E. 500, Page 4 n. 3).
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Defendants also object that complying with this section during the prescribed timeframe is “impossible.” As discussed above, in February 2017, the Special Master asked DFPS how many additional CVS caseworkers would have to be hired to achieve a maximum caseload of 14. (D.E. 546, Pages 25, 129). When DFPS finally responded to this inquiry the following May, it was only to state that it was “not feasible” to provide this information. Id. DFPS never updated its response to this query before the Special Master filed the Plan in December 2017. Yet somehow DFPS was able to determine within 15 days of the Plan’s filing that achieving a caseload range of 14-17 children by June 2018 was impossible. (D.E. 556, Page 29).
The Court’s December 2015 Order ordered the Defendants to “establish and implement policies and procedures to ensure that Texas’s PMC foster children are free from an unreasonable risk of harm.” (D.E. 368, Page 245).41 Despite the fact that the December 2015 Order identified DFPS’s excessively high caseloads as a major source of unreasonable risk of harm, Defendants have apparently still not taken appropriate steps to prepare to reduce caseloads.42 See (D.E. 368, Pages 250-51). Additionally, this Court’s Appointment Order ordered Defendants “to cooperate completely and in good faith with the Special Master[].” (D.E. 379, Page 8). Defendants, having ignored these orders for twenty-five months, are not in a particularly strong position to object to the Master’s proposal. The Objection as to impossibility is OVERRULED.
I. Supervisors 1. DFPS shall ensure that supervisors who oversee caseworkers managing the cases of
children in the PMC class have no more than seven workers assigned to them. Supervisory workloads must be pro-rated for supervisors who are less than full-time.
41 See supra p. 4 n. 7. 42 As the Court observed in its January 2017 Order, DFPS took the inadequate step of requesting additional hiring authority that would allow it to reduce caseloads to 25.47. (D.E. 500, Page 7). The inadequacy of this step is reinforced by DFPS’s stonewalling of the Special Master on the caseload issue.
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Workloads for supervisors who spend part-time in supervisory work and part-time in other functions, which includes carrying a case, must be pro-rated accordingly. 2. Supervisors who oversee caseworkers serving PMC children shall not directly carry a caseload unless there is a documented emergency requiring the supervisor to do so.
a. Objection Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding caseworker supervisors cause class-wide constitutional harm, and that all of the Items in this Section are therefore unjustified. (D.E. 556, Page 29).
b. Ruling on Objection The Special Master relied on extensive evidence from the trial record in crafting this recommendation. (D.E. 546, Pages 27-29). Generally, it appears DFPS supervisors play an important role managing caseworkers, assigning cases, and approving actions in cases. (D.E. 327, Page 14 Lines 8-14). Supervisors participate in permanency roundtables and are responsible for follow-up. (D.E. 328, Page 41 Lines 6-25 and D.E. 328, Page 52 Lines 15-25). Supervisors, along with the caseworker, make the decision of selecting or rejecting placements based on how they determine the placement can meet the needs of the child. (D.E. 328, Page 140 Lines 5-18). According to the CPS Handbook, supervisors have various oversight or monitoring functions, including but not limited to approving billing for a service level lower than the authorized service level, determining a permanency plan in the best interest of the child, approving the initial plan of service and subsequent review, approving less than monthly face to face sibling contact, approving travel, and reviewing home studies for potential adoptive families. (PX 50, Pages 86, 99, 130; PX 52, Pages 49, 59, 88, 95, 162). CPS also relies on supervisors to mentor new caseworkers and ensure their continued training. (PX 1861, Page 37). The CPS Handbook also outlines when caseworkers must turn to their supervisors to make
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decisions in various situations such as when problems need to be resolved with a placement, when the caseworker does not agree with the placement choice made by the Centralized Placement Team, when a child in an open conservatorship case is pregnant, and when information is received regarding the possible location of a missing child. (DX 108, Pages 1486, 1492, 1854, 1946).
DFPS also relies on supervisors to report up the chain of command when their caseworkers have unmanageable caseloads. See (D.E. 368, Page 197). However, it is clear from the record that supervisors are unable to make this reactive, “squeaky wheel” approach to caseload management work, perhaps due to DFPS’s “punitive and unsupportive” work environment. (D.E. 368, Page 197 (quoting DX 119, Page 30)); see supra at III.H.3.b.
The trial included testimony regarding the ratio of supervisors to caseworkers.43 Colleen McCall (“McCall”), Director of Field Operations, testified that typically a supervisor has six or seven caseworkers. (D.E. 322, Page 59 Lines 24-25 and Page 60 Lines 16-18). Judy Bowman Pitts Regional Director of Regions 4 and 5, testified that a unit is one to seven caseworkers but generally in conservatorship there are about seven caseworkers in a unit. (D.E. 327, Page 14 Lines 16-17). Camille Gilliam, Regional Director of Regions One and Nine, testified she oversees 18 supervisors in Region 1 who were responsible for 114 conservatorship workers, which is a ratio of one supervisor to six and a third (6.333) workers. (D.E. 327, Page 63 Lines 310). Mrs. Gilliam also testified in Region Nine there were 12 supervisors who were responsible for 75 conservatorship workers, which is a ratio of one supervisor to six and a quarter (6.25) workers. (D.E. 327, Page 63 Lines 3-10).
Some exhibits also contained evidence relating to the ratio of supervisors to caseworkers. DFPS’s presentations and requests to the Texas Legislature discussed the supervisor to
43 Notably, DFPS did not include supervisors in its caseworker workload study. (D.E. 485, Page 2).
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caseworker ratio. DFPS’s legislative appropriation requests contained requests to reduce the supervisor span of control. The legislative appropriations request for fiscal years 2014 and 2015 indicated the supervisor span of control in conservatorship was seven workers and the requested funding would reduce it to six workers. (PX 885, Page 20; DX 32, Page 20 and DX 33, Page 192). This same ratio is repeated in the exceptional item requests for the same fiscal years. (PX 889, Page 6 and PX 894, Pages 11-12). DFPS’s various presentations also contained indications of the ratio of conservatorship supervisors to caseworkers. DFPS’s July 1, 2014 presentation to the House Select Committee on Child Protection indicated there were seven caseworkers per supervisor. (DX 200, Page 31). DFPS’s January 30, 2013 presentation to the Senate Finance Committee also indicated the current ratio of supervisors to workers for conservatorship was one to seven. (DX 215, Page 24).
Various reports contained documentation of the average supervisor ratio. The Title IV-B 2015- 2019 Child and Family Services Plan reported the average supervisor to worker ratio at any point in time is one to six. (DX 77, Page 207). A memorandum from Ms. McCall to Commissioner Specia described units in Region Nine that had between eight and ten caseworkers. (PX 1837, Pages 3-4). Ms. McCall’s memorandum also contained a request to bring the supervisor span of control down to six or seven caseworkers per supervisor. (PX 1837, Pages 3-4). The Stephen Group’s operational review of CPS found that as of January 2014, there were 2,015 conservatorship workers and 279 conservatorship supervisors, which is a ratio of just over seven workers per supervisor. (PX 1993, Page 47).
The information DFPS provided in response to a request by Representative Dukes and the House Select Committee on Child Protection contained direct counts of caseworkers assigned to conservatorship supervisors in each region. According to this information, conservatorship
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supervisors in Region One had between five and nine caseworkers assigned to them. (DX 110, Page 87). Region Two had a range of seven to nine caseworkers per supervisor. (DX 110, Page 89). Region Three had a range of five to ten caseworkers per supervisor. (DX 110, Pages 9597). Regions Four and Five had a range of five to nine caseworkers per supervisor. (DX 110, Page 101). Region Six had a range of six to eight caseworkers per supervisor with the majority having seven caseworkers assigned to them. (DX 110, Page 106). In the outlying areas of Region 6, the supervisors also had a range of six to eight caseworkers assigned to them with the majority having seven. (DX 110, Page 111). In Region Seven, conservatorship supervisors had eight caseworkers assigned to them except one supervisor who only had five caseworkers. (DX 110, Page 113). Region Eight supervisors had a range of six to eight conservatorship caseworkers assigned to them. (DX 110, Pages 122-123). In Region Nine, conservatorship supervisors were in charge of a range of six to eight caseworkers. (DX 110, Page 125). Region Ten conservatorship supervisors had a range of five to seven caseworkers. (DX 110, Page 127). In Region 11, conservatorship supervisors were in charge of a range of six to eight caseworkers. (DX 110, Page 131).
In summary, the typical supervisor to caseworker ratio in conservatorship appears to be one to seven. Based on the statistics provided to Representative Dukes, supervisors oversaw between five and ten caseworkers. For comparison purposes, the Child Welfare League of America’s standards state one full-time supervisor should supervise no more than five social workers. (PX 18, Page 28; PX 2114, Page 152 and DX 235, Page 131). All of the testimony at trial as to DFPS’s supervisor-to-caseworker ratio included supervisors sometimes having a very significant caseload. (D.E. 546, Page 25; D.E. 496; D.E. 327, Page 14 Line 23-Page 16 Line 17); see supra at III.H.3.b. Despite this, DFPS conducted its caseworker workload study under the
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assumption that supervisors would not carry caseloads, because the caseworker workload study did not include supervisors. (D.E. 485, Page 2). Pursuant to DFPS’s own caseworker study, then, supervisors should not be carrying a caseload in addition to their other significant duties. See (D.E. 485, Page 2); (D.E. 546, Page 25). Accordingly, the record justifies the provisions in this section. The Objection is OVERRULED.
J. Worker Retention 1. Effective May 2018, DFPS shall ensure statewide implementation of the CPS
Professional Development (CPD) training model, which DFPS began to implement in November 2015. 2. Effective May 2018, DFPS shall ensure statewide implementation of graduated caseloads for newly hired CVS caseworkers, and all other newly hired staff with the responsibility for primary case management services to children in the PMC class, whether employed by a public or private entity. 3. Effective May 2018, DFPS shall ensure that before any new CVS (or private agency) caseworker assumes primary case management responsibility for a full caseload range of 14 to 17 children, they successfully complete a comprehensive training program for new workers and pass a competency examination.
a. Objection Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding worker retention cause class-wide constitutional injury, and that all of the Items in this Section are therefore unjustified. (D.E. 556, Page 30).
b. Ruling on Objection The Court noted in its December 2015 Order that DFPS suffered from a dangerously high turnover rate for caseworkers. (D.E. 368, Page 176-86). The Court determined in its December 2015 Opinion: Besides harming foster children in and of itself, DFPS admits, “High caseloads lead to high worker turnover, further exacerbating high caseloads.” (PX 877 at 8; see also D.E. 300 at 34, 42; D.E. 305 at 36-37, 56; PX 2037 at 12). Dr. Miller calls this the “cycle of crisis.” (D.E. 303 at 22-23). Specia admits that the
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“appropriate workload spread out among the workers . . . will help me keep workers.” (D.E. 299 at 82). It is no surprise then that “DFPS has an extraordinary amount of turnover.” (D.E. 305 at 55).
The Stephen Group reported that yearly CVS caseworker turnover is 26.7%, and “a major organizational burden.” (PX 1993 at 16-17, 76). To compare, turnover for workers comparable to Texas’s CVS caseworkers was 14% to 15% in Kentucky and 10% to 12% in Tennessee. (D.E. 303 at 28-29). The Stephen Group also noted that turnover is especially high for new CPS workers, with approximately 28% leaving within the first year, and approximately 43% within the first two years. (PX 1993 at 17-18). Likewise, Black testified that turnover is approximately 38% for first-year caseworkers. (D.E. 300 at 38-39). The Sunset Commission reported, “One out of every six new caseworkers leaves CPS within six months.” (DX 119 at 20).
Unmanageable caseloads are the main reason that CVS caseworkers leave. In a survey, 70% of the caseworkers that left listed “Workload” as the first or second reason. (PX 1993 at 306). In a 2009 article, Burstain wrote, “With respect to CVS, historically, a fairly direct relationship exists between caseloads and voluntary turnover.” (PX 1871 at 11). In support of that statement, Burstain cited data showing that when “caseloads declined 16 percent from 2006 to 2008 . . . CVS voluntary turnover declined 10 percent.” Id. Another report found that heavy caseloads “contribute[] to high turnover rates.” (PX 1964 at 9). This finding has “remained consistent from year to year.” (PX 844 at 5).
This high turnover rate means that one out of every 11 CVS caseworker positions is vacant. (DX 119 at 19). Even when those vacancies are filled, it takes “two years” for a caseworker “to fully be up to speed.” (PX 1995 at 159). During their first three months, caseworkers are in training and do not have any cases. (DX 119 at 19). Consequently, while CPS has 1980 primary caseworkers, it needs to hire more than 500 primary caseworkers per year to retain an experienced workforce of only about 1000 who actually close most of the cases. (See D.E. 305 at 41; PX 1993 at 16-17). This puts a tremendous strain on the 1000 veteran CVS caseworkers, who are the front line workers for over 29,000 foster children captured in DFPS’s figures.
Caseworker turnover has many negative impacts beyond higher caseloads. Black admitted that turnover causes delayed investigations, a lack of continuity in providing services to families and children, a lack of consistent timely visits by caseworkers to children in State custody, and significant costs to the State in terms of recruiting, training, and lost productivity. (D.E. 300 at 34, 42; see also DX 119 at 17; PX 1995 at 159). Caseworker turnover also “delays or disrupts services and the case plan” of foster children, (PX 1871 at 2), and hinders permanency planning. (D.E. 312 at 20). Moreover, as the Stephen Group explained, “workplace turnover is endemic and institutional knowledge is stripped from across the agency.” (PX 1993 at 17). The high level of turnover at CPS
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“represents an extraordinary organizational challenge to replace these workers and maintain a consistent level of performance.” (PX 1993 at 16). As one audit of DFPS explained, “Numerous transitions in caseworker assignments disrupt momentum toward permanency by forcing children/youth and their families to ‘start over’ repeatedly with new caseworkers.” (PX 1880 at 5). (D.E. 368, Pages 176-78). DFPS itself stated in its Fiscal Year 2014-15 requests to the Legislature that “[c]aseworker turnover in all programs threatens the well-being and safety of clients.” (D.E. 368, Pages 190-91 (quoting PX 894, Pages 6-7)). The December 2015 Order described how the revolving door of overburdened caseworkers causes despair, isolation, and helplessness among the foster children themselves. (D.E. 368, Page 178). Specifically, when a child’s caseworker “changes constantly or fails to make regular contact with the child, the child’s feelings of rejection are compounded and lead to feelings of distrust between the child and the “system,’” making “it all the more difficult to elicit critical information needed to ensure appropriate care.” (PX 1988, Page 100). As a result of this high level of turnover, a child exiting foster care in 2008 had an average of 3.87 caseworkers and a child who spent at least three years in the State’s PMC had an average of 6.39 caseworkers. (PX 1988, Pages 99-100). Additionally, the Court found the turnover rate was understated because DFPS only counts how many employees left the agency. (D.E. 368, Pages 191-92; PX 1871, Page 2). DFPS does not take into account the number of employees who leave their positions for different positions within the agency. (D.E. 368, Page 191; PX 1871, Page 2). Despite having over two years to lower dangerously high turnover rates, DFPS’s request for salary increases have not lowered attrition rates. See Hearing Before the Tex. Senate Committee on Finance Part I, 85th Leg. Session, Jan. 30, 2017, at 1:38:59, 1:42:05, available at http://tlcsenate.granicus.com/MediaPlayer.php?view_id=42&clip_id=11611; (D.E. 500, Page 7).
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After the January 2017 Order, DFPS received funding to hire additional caseworkers in anticipation of bringing the average caseload down to approximately twenty-six.44 See (D.E.

500, Pages 6-7); Hearing Before the Tex. Senate Committee on Finance Part I, 85th Leg.

Session,

Jan.

30,

2017,

at

1:54:32,

available

at

http://tlcsenate.granicus.com/MediaPlayer.php?view_id=42&clip_id=11611. However, DFPS

provided and the Special Masters reviewed the “CFRP Evaluation, Final Report” from December

2016, an evaluation of DFPS training and turnover from the University of Texas. (D.E. 546,

Page 31). The report found that DFPS’s CPS Professional Development (CPD) training model

was having an early, positive impact on new CVS worker attrition. (D.E. 546, Page 31). The

Objection is OVERRULED.

K. Secondary Workers

1. Within 30 days of the Court’s Final Order date, DFPS shall eliminate the use of I See You secondary workers and designate all secondary workers as primary caseworkers.

a. Objections

Defendants object to Item 1 to the extent it is based on Plan Appendix B, Key Findings:

Texas Child Protective Services, I See You Workload Study, because that report is inadmissible,

irrelevant, and outside the scope of the Appointment Order. (D.E. 556, Page 30-31).

Defendants object that there is no basis in the record for finding that existing DFPS

policies or practices regarding I See You workers cause class-wide constitutional harm, and that

this Item is therefore unjustified. (D.E. 556, Page 30).

44 Defendants in their Objections indicated turnover rates declined but the data was not detailed or verified sufficiently to use as authority here. See (D.E. 557, Page 13). Even if the figures are reliable, post-trial remedial measures do not deprive the Court of the power to order relief. Cf. Friends of the Earth, 528 U.S. at 189.
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b. Ruling on Objections The January 2017 Order explicitly authorized the Special Master to retain experts to conduct an I See You worker workload study in order to develop their implementation plan. (D.E. 500, Page 22); see Alberti v. Klevenhagen, 660 F. Supp. 605, 610 (S.D. Tex. 1987). The study was not admitted into evidence or relied on by the Court to establish institutional remedies; it was simply a tool used by the Special Master to craft their implementation plan. Even if the challenge to the study’s reliability were appropriate, Defendants failed to provide any facts that would undermine the study’s reliability. Notably, the authors of the I See You worker study collected data on a total of 98 I See You workers for the time study and interviewed 22 of them for the knowledge study (D.E. 546, Page 104, 106-07). Finally, information provided by DFPS itself establishes that I See You workers have an average workload of 44 children, and the Court finds this information is sufficient to justify the remedy independent of the study commissioned by the Special Master. See (D.E. 471, Page 6). Accordingly, the Objection is OVERRULED. The Court found in its December 2015 Order that I See You Workers generally had only superficial contact with foster children, rarely conducted their visits in private, and did not develop meaningful relationships with foster children. (D.E. 368, Pages 172-73). The Court’s December 2015 Opinion found: McCall acknowledged that I See You workers’ main responsibility, as indicated in the position title, is “seeing the child” in her placement every month to confirm that she “is still there.” (D.E. 305 at 61-63). Although I See You workers are supposed to have “meaningful discussions” with the children they visit, they often just show up at the child’s placement, ask “five questions and leave.” (D.E. 305 at 65; D.E. 324 at 186). For example, A.M.’s I See You worker, who visited her regularly for more than two years, asked the same 10-12 questions at every visit, and A.M. answered the same way. (See DX 120 at DFPS #828-997 (filed under seal)). According to the I See You worker’s notes, A.M. was almost always “fine” and “stable in her current placement” and the worker often noted that “things are going well for [A.M.] at this time.” Id. In reality, during much of this
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time, A.M’s level of care was Intense and she was repeatedly restrained by RTC staff.
Secondary workers are also “not required to follow up on any needs identified during the visit beyond communicating those needs to the primary caseworker.” (PX 2037 at 57). Nor are they responsible for children’s case planning or permanency planning. (D.E. 322 at 127). A foster child’s relationship with their secondary worker “is never quality.” (D.E. 326 at 88). Their existence—intended as a stopgap—is itself evidence of an understaffed CVS caseworker workforce, as well as DFPS’s inadequate placement array. See infra p. 222-23.
Moreover, replacing contact from primary caseworkers with contact from secondary workers inhibits primary caseworkers’ ability to form relationships with their foster children. As Burstain explained, a CVS caseworker is often a foster child’s “only continuous and stable relationship.” (PX 1871 at 1). Given that PMC children have been removed from their home and likely shuttled between placements, CVS caseworkers are one of the few people that foster children look to for support and guidance. (D.E. 326 at 85). Trust is “highly important” between a foster child and their primary caseworker because children need to feel comfortable telling them their problems. Id. As McCall testified, “especially with emotional harm[,] you need to know . . . the child before you can tell something is wrong.” (D.E. 305 at 62). Using secondary workers to shoulder excessive workloads thus hinders primary caseworkers’ ability to protect their children. Further, foster children often do not share their problems with secondary workers who they view as “not the real thing,” akin to substitute teachers. (D.E. 326 at 88). Dr. Miller explained that workers who have no permanent relationship with a child, such as I See You workers, cannot “win a child’s trust in a sufficient way to have the child actually reveal what is happening in the child’s life, particularly if the child is being subjected to maltreatment.” (PX 2037 at 58). Carter testified that foster children “very rarely” see I See You workers “as somebody that is there to support them” because children “intuitively know that this person is just fulfilling a service or a requirement by looking in on them.” Id.
(D.E. 368, Pages 171-73). And the Court further observed:
Cross-state moves also impede primary caseworkers’ ability to visit their foster children. As discussed supra, primary caseworkers are foster children’s lifelines. See Section IV.A. Yet, due to a lack of funding and a lack of time, primary caseworkers ‘can’t go and meet with [children] face to face’ when they are placed out of county or out of region. (D.E. 324 at 22). Thus, foster children are forced to rely on secondary I See You workers. McCall acknowledged at trial that I See You workers were created by DFPS ten years ago at least in part because children were too often being sent far from their home communities and primary caseworkers. (See D.E. 305 at 62). Although secondary workers do not protect foster children from an unreasonable risk of harm, they undoubtedly help Texas
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represent to the federal government that caseworkers visit children in foster care at least once per month. (D.E. 368, Page 222). The Court also found that I See You workers are insufficient substitutes for primary caseworkers. (D.E. 368, Page 172). Attorney ad litem Ricker testified that “[she] end[s] up being the I See You Worker” because every time she would check in on a PMC child unannounced, there was something seriously wrong. (D.E. 326, Page 205). Dr. Viola Miller, who previously headed child welfare agencies in Kentucky and Tennessee, testified at trial that she was unaware of any other state in the country employing an equivalent of Texas’s I See You worker. (D.E. 303, Page 15). Texas would lose millions of dollars in federal aid under Title IVB of the Social Security Act if fewer than 95% of its foster children were visited by a caseworker each month. See 42 U.S.C.A. § 624(f)(1); (D.E. 368, Page 223). However, gamesmanship of the requirements for receiving federal funding is not a sufficient reason to maintain a system of secondary workers which this Court has found to contribute to the unconstitutional conditions in Texas’s foster care system. The Court ordered the Special Masters in its January 2017 Order “to retain an expert as part of their team to create a workload study of “I See You Workers” to aid the Court in determining whether the “I See You Worker” program should be continued and, if so, in what capacity.” (D.E. 500, Page 22). The Special Masters retained the Child and Research Partnership at the University of Texas-Austin, the LBJ School of Public Affairs, in part because of their existing consultancy, familiarity and collaboration with DFPS in assessing the agency’s training programs. (D.E. 546, Pages 33-34). In its CPS Handbook, DFPS identifies the responsibilities of I See You Workers primarily as visitation with the child; assessment of the child’s needs and well-being; discussion
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of the child’s permanency plan; communication of the child’s service needs with the primary
caseworker; collaboration with the primary caseworker on the child’s permanency plan; and,
where necessary, serving as the child’s medical consenter. (D.E. 546, Pages 34, 109). Although
DFPS has charged I See You Workers with assessing PMC children’s needs (CPS Handbook,
Section 6414) and indicated to the Special Masters that “many of a child’s dental records,”
“mental health records,” and “medical records,” “are already included, and available to
caseworkers, in the Health Passport,” DFPS reported to the Special Masters, “I See You workers
are not specifically required to access/review a child’s Health Passport, and such a review is not
necessary for every child,” even for the PMC children they are assigned to serve. (D.E. 546,
Page 132). Most I See You Workers told the University of Texas workload study team they did
not think it was essential to read a child’s psychological assessments, or other assessments, to
come up to speed on a child’s case. (D.E. 546, Pages 106-08). The workload study, attached as
Appendix B to the Implementation Plan (D.E. 546), contains a number of findings:
• The typical I See You caseworker had a caseload of nearly 44 children each day of the month. (D.E. 546, Page 110).
• In June 2017, 98 I See You caseworkers were required to complete, at the median, 21.5 visits with PMC children. (D.E. 546, Page 110). The median number of visits completed was actually 16. (D.E. 546, Page 110). This reflects a completion rate of 74.4 percent of the monthly face-to-face visits for I See You workers’ cases. (D.E. 546, Page 110). I See You caseworkers missed visits altogether with slightly more than one quarter of the PMC children they were responsible to visit. (D.E. 546, Page 110). The caseworker with the lowest visit rate completed 23.1 percent of her required visits and the caseworker with the highest visit rate completed 100 percent of her required visits. (D.E. 546, Page 110).
• The typical I See You caseworker completed 50 percent of initial face-to-face visits with new children in June. (D.E. 546, Page 110). Overall, I See You caseworkers completed between zero and 100 percent of their initial face-to-face visits. (D.E. 546, Page 110). Of the 46 I See You caseworkers who had at least 15 days with a new PMC case in June 2017, 41 percent met with 100 percent of the children on their new cases within 15 days. (D.E. 546, Page 110). However,
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35 percent of I See You caseworkers with a new case did not complete a single initial face-to-face with those children in June. (D.E. 546, Page 110). • I See You caseworkers’ familiarity with the children they were assigned, with their service needs, including medical care, was often lacking. (D.E. 546, Pages 34, 110-11). • Over 82 percent of I See You caseworkers reported that primary caseworkers do not set a regular schedule for communication. (D.E. 546, Page 111). I See You caseworkers also report that CVS caseworkers often do not communicate regularly with the child or the child’s caregiver. (D.E. 546, Page 111). The I See You Worker study also concluded that 42% of I See You workers reported that primary caseworkers did not respond to emails or phone calls in a timely manner. (D.E. 546, Page 109). These are unsurprising statistics, given that the study found that the typical I See You worker has an average caseload of 44 children per day. (D.E. 546, Pages 34, 110). Testimony at trial also revealed that attorneys ad litem are not informed when I See You workers are appointed or make visits and never receive communications from I See You workers. (D.E. 326, Page 259). It is apparent from the study that DFPS’s policies concerning I See You worker visits are not practiced, and policies not practiced have no value. See Ruiz, 679 F.2d at 1160; supra at II.B.1. I See You workers’ lack of knowledge is particularly troubling given that they commonly act as medical consenters for PMC children. (D.E. 546, Page 34). Even if this Court were to disregard the Special Master’s I See You worker study completely, DFPS included I See You workers in their own caseload study. (D.E. 485). The DFPS study demonstrates that all caseworkers, including I See You workers, could only handle 14 PMC cases. (D.E. 496). This is particularly disturbing considering each I See You worker has an average caseload of 44 children.45 (D.E. 471, Page 6). Accordingly, the Objection is OVERRULED.
45 Although the December 2015 Order required Defendants to track CVS caseworker caseloads without including secondary workers in their calculations (D.E. 368, page 250 ¶ 1), Defendants decided it would be appropriate to
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L. Residential Child Care Licensing (“RCCL”)46
1. Effective May 2018, the State of Texas47 shall ensure the staff who investigate allegations of abuse and neglect of children in the PMC class have caseloads of no more than 14 investigations, consistent with the median caseload of investigations found in the Workload Study. Although this is twice the number of investigations the Workload Study concluded was reasonable for child abuse and neglect investigators in light of the amount of time they expend on their cases, 14 investigations shall serve as the top of their workload range.
2. Effective May 2018, the State of Texas shall ensure that the staff who conduct licensing standards investigations48 for alleged violations involving children in the PMC class have caseloads of no more than 14 standards investigations, consistent with the maximum caseload of standards investigations found in the Workload Study. Although this is nearly three times the number of standards investigations the Workload Study concluded was reasonable for inspectors in light of the amount of time they expend on their cases, 14 standards investigations shall serve as the top of their workload range. Caseloads for staff shall be pro-rated for those who are less than full-time. Caseloads for staff who spend part-time in investigative work and part-time in other functions must be pro-rated accordingly.
4. Effective immediately, the State of Texas shall ensure RCCL investigators,49 and any successor staff, observe or interview the alleged child victims in Priority One child abuse or neglect investigations within 24 hours of intake.
5. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, observe or interview the alleged child victims in Priority Two child abuse or neglect investigations within 72 hours of intake.
include secondary workers in the workload study ordered by the Court. (D.E. 368, Page 250 ¶ 2). Since the State thought it was appropriate for the study to blend primary and secondary workers together, the Court likewise concludes that primary and secondary workers can handle similar caseloads. Furthermore, though the study did not differentiate between TMC and PMC children, the DFPS caseworker study demonstrates that caseworkers spend less time with PMC children than TMC children. (D.E. 485). Whatever the mix of the I See You caseload, it is clearly excessive. 46 Defendants object that Item 3 of the Plan prohibited DFPS from employing staff with a “negative child welfare history.” (D.E. 556, Pages 33-34). Defendants’ Objection is SUSTAINED, and the Item is therefore deleted. The Plan’s numbering of subsequent Items is retained for ease of reference. 47 Subsequent to the Court’s December 2015 Order, RCCL underwent restructuring and the licensing division was reassigned to the HHSC. The investigators who conduct investigations of alleged abuse and neglect in childcare operations remain under DFPS’s control. Accordingly, the Court enters relief against the State of Texas to ensure the necessary steps are taken to keep PMC children free from an unreasonable risk of harm. See supra p. 3 n. 4. 48 Standards investigations are investigations into compliance with licensing requirements, rather than into allegations of abuse or negligence resulting in harm to a child. See 40 Tex. Admin. Code § 745.21(28) (listing regulations that establish minimum standards); (D.E. 299, Pages 10, 14). 49 RCCL investigators are “[s]taff responsible for conducting child abuse and neglect investigations of children who live in residential child care facilities and child-placing agencies licensed by RCCL and conducting investigations to determine if a facility complies with minimum standards.” (D.E. 546-1, Page 116).
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6. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete Priority One and Priority Two child abuse and neglect investigations within 30 days of intake, consistent with DFPS policy.
7. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete Priority Three, Priority Four and Priority Five investigations within 60 days of intake, consistent with DFPS policy.
8. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete and submit documentation in Priority One and Priority Two investigations on the same day the investigation is completed.
9. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete and submit documentation in Priority Three, Priority Four and Priority Five investigations within 60 days of intake.
10. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, finalize and mail notification letters to the referent and provider(s) in Priority One and Priority Two investigations within five days of closing a child abuse and neglect investigation or completing a standards investigation.
11. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, finalize and mail notification letters to the referent(s) and provider(s) in Priority Three, Priority Four and Priority Five investigations within 60 days of intake.
12. Effective March 2018 and ongoing thereafter, the State of Texas shall publicly post on its website all licensing inspections by RCCL, and/or its successor entity, redacting child identifying information and other information deemed confidential under state and federal law and regulation. The posted information shall include the full narrative inspection report, the outcome of the inspection, inspection violations and whether RCCL, and/or its successor entity, implemented corrective or adverse action as a result of the violations. The posted information shall also include all corrective action plans required by RCCL and/or other successive entities and the dates RCCL and/or other successive entities accepted corrective action plans submitted by violating agencies and the status of those corrective action plans.
a. Objection
Defendants object that the phrase “under state and federal law and regulation” in Item 12
is vague. (D.E. 556, Page 16).
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b. Ruling on Objection Item 12 instructs the Defendants to redact information as required “under state and federal law and regulation” only to remind Defendants of their other legal obligations. Item 12 is not to be read as imposing on Defendants an additional duty to obey confidentiality laws at risk of being held in contempt. To the extent this clarification does not fully address Defendants’ Objection to Item 12, it is OVERRULED. 13. By July 2018, RCCL, and/or any successor entity50 charged with inspections of child care placements, will identify, track and address concerns at facilities that show a pattern of contract or policy violations. Such facilities must be subject to heightened monitoring by DFPS and any successor entity charged with inspections of child care placements and subject to more frequent inspections, corrective actions and, as appropriate, other remedial actions under DFPS’ enforcement framework. 14. Effective immediately, RCCL and/or its successor entity,51 shall have the right to directly suspend or revoke the license of a placement in order to protect children in the PMC class.
a. Objection Defendants object to Item 14 on the basis that RCCL already has the authority to revoke or suspend a license, and that any change to the procedure for doing so would violate licensees’ state-law rights to due process. (D.E. 556, Page 36-37).
b. Ruling on Objection In an Advisory, Defendants informed the Court that CPAs have the responsibility for closing homes that they run when it is necessary to do so, and that RCCL (or its successor entity)
does not have the authority to do so itself. (D.E. 492, Page 1). Item 14 gives RCCL (or its successor entity) the authority to directly revoke or suspend the licenses of all foster homes,
50 Subsequent to the Court’s December 2015 Order, RCCL underwent restructuring and the licensing division was removed from DFPS control and reassigned to the HHSC. In order to ensure the necessary steps are taken to keep PMC children free from an unreasonable risk of harm, the Court orders relief against RCCL or the State entities who assume responsibility for licensing child care facilities. 51 See supra p. 81 n. 50.
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including those licensed by a CPA. See (D.E. 311, Page 31). Given the record established at
trial, the Court is not convinced by Defendants’ argument that RCCL is exercising its existing
authority to suspend licenses as “vigorously” as possible. See, e.g., (D.E. 329, Page 50) (noting
that the only license revoked during RCCL Director Darla Shaw’s tenure was that of a placement
where multiple children died); (D.E. 368, Page 208) (“During fiscal year 2013, . . . CCL52 cited
providers for 6050 violations, but only issued 12 corrective actions and 1 adverse action.”); id.
(“Over the past five years, CCL issued only four adverse actions against residential
operations.”).53 Even though DFPS has a policy for suspending or revoking the license of a
placement, the evidence shows the policy is not being practiced. See Ruiz, 679 F.2d at 1160;
supra at II.B.1. Further, Item 14 does not displace whatever procedural requirements Texas
imposes on RCCL’s decision to suspend or revoke a license, provided that RCCL (or its
successor entity) has authority to directly suspend or revoke the license of any placement. The
Objection to Item 14 is OVERRULED.
15. Effective immediately, RCCL, and any successor entity54 charged with inspections of child care placements, must consider during the placement inspection all referrals of, and in addition all confirmed findings of, child abuse/neglect and all confirmed findings of corporal punishment occurring in the placements. During inspections, RCCL, and any successor entity charged with inspections of child care placements, must monitor placement agencies’ adherence to obligations to report suspected child abuse/neglect. When RCCL, and any successor entity charged with inspections of child care placements, discovers a lapse in reporting, it shall refer the matter to DFPS, which shall immediately investigate to determine appropriate corrective action, up to and including termination or modification of a contract.55
52 At the time of trial, Childcare Licensing (“CCL”) was the division of DFPS that contained RCCL. (D.E. 368, Pages 5-6). 53 In an email to a coworker, one DFPS employee stated that the “threshold in RCCL” investigations is “no autopsy, no RTB.” (PX 1706, Page 1; D.E. 368, Page 204). RTB stands for “Reason to Believe,” and is the term used by RCCL when it determines that an allegation of neglect or abuse is supported by a preponderance of the evidence. (D.E. 368, Page 256). For further discussion, of RCCL’s lax enforcement strategy, see (D.E. 368, Pages 208, 214). 54 See supra p. 81 n. 50. 55 Defendants object that Item 15 disrupts the State’s allocation of authority between RCCL and DFPS. (D.E. 556, Page 37). The Court’s Order alters Item 15, as reflected above. To the extent these changes do not satisfy Defendants’ Objection, it is OVERRULED.
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a. Objections Defendants object to this section to the extent that is based on Appendix C, Key Findings: Texas Child Protective Services Workload Studies, RCCL Workload Study. (D.E. 556, Pages 32-33). Defendants argue the workload study is inadmissible hearsay and not relevant. Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding licensing, inspection, and investigation of foster care facilities cause class-wide constitutional injury, and that all of the Items in this Section are therefore unjustified. (D.E. 556, Page 31-32).
b. Ruling on Objections Defendants’ Objection to this Section based on the RCCL workload study is OVERRULED for the same reasons the Court overruled Defendants’ similar objection to Item 1 of Section K. Ninety-six percent of eligible RCCL workers responded to at least one week of the RCCL study. (D.E. 546-1, Page 49). Furthermore, it was only necessary for the Special Master to retain an outside expert to conduct this study because DFPS ignored this Court’s order to conduct the RCCL workload study. (D.E. 500, Page 23 & n. 19).56 This objection applies to each provision of this section and for the reasons stated is OVERRULED as applied to the entire section. The Court’s December 2015 Order identified serious problems with RCCL, including a staggeringly high rate of erroneous investigation dispositions and a failure to react appropriately to the discovery of those errors. (D.E. 368, Pages 200-04). The Performance Management Unit (“PMU”) performed internal quality control for RCCL. (D.E. 368, Page 201). PMU reviewed 85 physical abuse investigations occurring between August 1, 2012 and July 31, 2013 which resulted in an “Unable to Determine” or “Reason to Believe” disposition. (D.E. 368, Page 201).
56 See supra p. 4 n. 7.
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The number of incorrect dispositions was staggering. Of the “Unable to Determine” dispositions, PMU found 64.6% (31 of 48) were incorrect. (PX 1129, Page 3). PMU stated the reasons for incorrect dispositions included that not all parties were interviewed, not all evidence was reached, determination did not meet the definition, and risks were not thoroughly addressed. (D.E. 368, Pages 201-202). All but one of the incorrect dispositions was signed by a supervisor. (D.E. 368, Page 202). The failure of these investigations is systemic. (D.E. 368, Page 202). PMU conducted a second review of all “Unable to Determine” dispositions for cases involving physical abuse, sexual abuse, and negligent supervision over the same period. (D.E. 368, Page 202). The director of RCCL also separately reviewed the cases and found that seventy-five percent (75%) of the “Unable to Determine” dispositions were incorrect. (D.E. 368, Page 202). A typical error rate for a child welfare system is two or three percent. (D.E. 303, Pages 49-50). Despite these horrendous findings, nothing changed. DFPS did not suspend or revoke licenses, no penalties were levied, and the State did not move any children. (D.E. 368, Page 202). The Court found that RCCL “simply doesn’t work.” (D.E. 368, Page 202; D.E. 303, Page 51).
The December 2015 Order also discussed RCCL’s failure to achieve high levels of compliance in facilities and the high incidence of repeat violations in some of the highest-risk standards. (D.E. 369, Pages 208-09). DFPS rarely takes an enforcement action and generally takes collaborative approaches with its licensed facilities. (D.E. 368, Page 208). However, these collaborative approaches can take longer for facilities to become compliant while children remain and continue to be placed in the facilities. (D.E. 368, Page 208). Further, these efforts have not gained compliance and breed a high incidence of repeat violations in some of the highest-risk standards. (D.E. 368, Page 209). DFPS also fails to consistently apply safety
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standards leading to children across the state receiving different protections in their placements. (D.E. 368, Page 209).
In December 2015, the Court ordered “DFPS must complete a Workload Study to determine the time required for investigators and inspectors to adequately perform their tasks.” (D.E. 368, Page 251). In January 2017, the Court found “that DFPS has not commenced, as previously ordered, a workload study of RCCL investigators57 and inspectors.58 Therefore, the Court orders the Special Masters to formulate and institute such a study . . .” which the Special Masters did by retaining the University of Texas-Austin to undertake an analysis of Residential Child Care Licensing (“RCCL”) workloads. (D.E. 500, Page 23; D.E. 546, Page 35).
The workload study performed for the Special Masters shed more light on the issues involving RCCL. The University of Texas-Austin researchers determined the extent to which RCCL workers met five investigative casework practice standards during a six-month period from January to June 2017, including: initiating the investigation on time, observing or interviewing the alleged victim(s) on time, completing the investigation on time, completing documentation on time, and notifying relevant parties within the required timeframes. (D.E. 546, Page 35). For each casework practice standard, an RCCL worker is expected to complete the relevant activity within the timeframes determined by each investigation’s priority level and type, as described by DFPS policy. (D.E. 546, Pages 35-36). For example, RCCL investigators were, at the time of the study, expected to observe or interview the alleged child victim in Priority One59 child abuse or neglect investigations within five days of intake, and within seven
57 See supra p. 79 n. 49. 58 RCCL inspectors are “[s]taff responsible for monitoring residential child care facilities and child-placing agencies by conducting inspections, providing technical assistance to providers, and processing applications for licenses.” (D.E. 546-1, Page 116). 59 “Priority I reports concern children who appear to face an immediate risk of abuse or neglect that could result in death or serious harm.” 40 Tex. Admin. Code. § 700.505(a)(1).
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days of intake in a Priority Two60 child abuse or neglect investigation. (D.E. 546, Page 36). To measure the extent to which the RCCL worker met the casework practice standards, CFRP calculated a rate for each RCCL worker. (D.E. 546, Page 36).
Performance rates were lower for child abuse and neglect investigations than standards investigations.61 (D.E. 546, Page 36). RCCL Investigators observed or interviewed the alleged child victim in required time frames just slightly over half of the time. (D.E. 546, Page 36). On average, investigators sent notification letters to the reporters and providers of the investigation outcomes on time for approximately nine percent of Priority One and 13 percent of Priority Two abuse and neglect investigations. (D.E. 546, Page 36). Investigators completed the required investigative documentation on time 57 percent of the time for Priority One investigations and 59 percent of the time for Priority Two investigations. (D.E. 546, Page 36). They initiated, on average, over 90 percent of Priority One and Priority Two abuse and neglect investigations within the required time frames. (D.E. 546, Page 36). They completed investigations within required timeframes 44 percent of the time for Priority One investigations and 45 percent of the time for Priority Two investigations. (D.E. 546, Page 36).
RCCL inspectors met the casework practice standards at fairly high rates. These rates ranged from notifying the reporter of the investigation outcome on time for an average of 74 percent of Priority Two standards investigations, to notifying the provider of the outcome for an average of 95 percent of Priority Five standards investigations. (D.E. 546, Page 36).
The Workload Study found that, statewide, RCCL investigators had a median average daily caseload of 14 abuse and neglect investigations in the month of June 2017. (D.E. 546-1, Page 12). The median average daily caseload for inspectors was seven standards investigations
60 “Priority II reports are all other reports of abuse or neglect that are not assigned a Priority I.” 40 Tex. Admin. Code § 700.505(a)(2). 61 See supra p. 79 n. 48.
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and 11 operations, and the median average daily caseload for generalists62 was four abuse and neglect investigations, two standards investigations, and nine operations. (D.E. 546-1, Page 12). However, the study found the allocation of work very uneven: RCCL abuse and neglect investigative caseloads varied considerably. (D.E. 546, Page 36; D.E. 546-1, Page 12). The northeast district had half as many RCCL investigators and a much higher median average daily caseload than the other districts. (D.E. 546, Pages 36-37; D.E. 546-1, Page 13). Investigators in the northeast district had median caseloads of 28.4 child abuse and neglect investigations, with a maximum investigative caseload of 48.3 investigations at one time. (D.E. 546-1, Page 13). In contrast, investigators in the northwest district had median caseloads of seven child abuse and neglect investigations, with a maximum investigative caseload of 22 investigations at one time. (D.E. 546-1, Page 13)
There was little variation in the inspectors’ standards investigation caseloads for across the state, with each district showing median caseloads between six and seven standards investigations, and maximum caseloads ranging between nine and 14 matters. (D.E. 546-1, Page 13). Inspectors in the northeast district were responsible for approximately three times as many operations than in the southeast and southwest districts. (D.E. 546-1, Page 13). The northwest average daily caseload of operations was not as high as it was in the northeast, but the median average daily caseload of operations for inspectors in the northwest was approximately double that of the inspectors in the southeast and southwest districts. (D.E. 546-1, Page 13).
Given how RCCL workers of each type reported they spent their time during the study period, the authors at the University of Texas-Austin determined a reasonable investigative caseload for RCCL investigators to be no more than seven investigations. (D.E. 546-1, Page 36).
62 RCCL generalists are “[s]taff responsible for fulfilling both the RCCL inspector and investigator roles.” (D.E. 546-1, Page 117). Defendants state in their Objections that these positions no longer exist. (D.E. 556, Page 33).
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Given how RCCL workers of each type reported they spent their time during the study period, the authors at the University of Texas-Austin determined a reasonable investigative caseload for RCCL inspectors to be no more than five investigations. (D.E. 546-1, Page 37).
Given how RCCL workers of each type reported they spent their time during the study period, the authors at the University of Texas-Austin determined a reasonable investigative caseload for RCCL generalists (a small group of staff who perform both investigations and inspections) of five investigations. (D.E. 546-1, Page 37).
The Special Masters recommended in November 2016 that DFPS identify a discrete cohort of staff exclusively assigned to conduct child maltreatment investigations in licensed placements. (D.E. 546, Page 37). The Special Masters reported that DFPS has done so pursuant to recent Texas statutory change. (D.E. 546, Page 37).
Defendants’ Objection that there is no basis for the relief in this Section is OVERRULED.
M. Sexual Abuse63 1. Effective March 2018, DFPS shall implement within the child’s electronic case record
a profile characteristic option for caseworkers or supervisors to designate PMC and TMC children as “sexually abused” in the record if the child has been confirmed to be sexually abused by an adult or another youth. 2. Effective March 2018, DFPS shall document in each child’s records all confirmed allegations of sexual abuse in which the child is the victim. 3. Effective immediately, all of a child’s caregivers must be apprised of confirmed allegations at each present and subsequent placement. 4. Effective immediately, if a child has been sexually abused by an adult or another youth, DFPS must ensure all information about sexual abuse is reflected in the child’s placement summary form, and common application for placement.
63 The Court finds that, in order to ensure PMC children are free from an unreasonable risk of harm, it is necessary for all of the relief in Section M to apply to all PMC and TMC children in DFPS custody. See infra at III.M.13.b; see also supra at II.B.7.
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5. Effective immediately, all of the child’s caregivers must be apprised of confirmed allegations of sexual abuse of the child at each present and subsequent placement.
6. Effective immediately, DFPS shall ensure a child’s electronic case record documents “child sexual aggression” and “sexual behavior problem” through the profile characteristic option when a youth has sexually abused another child or is at high risk for perpetrating sexual assault.
7. Effective immediately, if sexually aggressive behavior is identified from a child, DFPS shall also ensure the information is reflected in the child’s placement summary form, and common application for placement.
8. Effective immediately, DFPS must also document in each child’s records all confirmed allegations of sexual abuse involving the child as the aggressor.
9. Effective immediately, all of the child’s caregivers must be apprised at each present and subsequent placement of confirmed allegations of sexual abuse involving the PMC child as the aggressor.
10. Within 90 days of the Court’s Final Order, DFPS shall create a clear policy on what constitutes child on child sexual abuse. Within 6 months of the Court’s Final Order, DFPS shall ensure that all staff who are responsible for making the determinations on what constitutes child on child sexual abuse are trained on the policy.
11. Effective immediately, DFPS shall ensure foster caregivers and other placement providers immediately report all allegations of sexual abuse by a child against another child to the 24-hour hotline established by DFPS to screen referrals of abuse and neglect.
12. Effective March 2018, DFPS shall document, track and report quarterly to the monitor(s) all referrals of child-on-child sexual abuse i nvolving chil dren in DFPS custody made to the 24-hour hotline established by DFPS to screen referrals of abuse and neglect.
13. Effective immediately and ongoing thereafter, DFPS shall report quarterly to the monitor(s) and confirm that all reports of child on child sexual abuse involving children in DFPS custody that have been referred to the 24-hour hotline have been assigned for investigation for, at minimum, neglectful supervision by the placement caregiver(s).
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a. Objections The Court carries forward Defendants’ Objection that portions of the Plan provide relief to foster children who are not part of the certified class, and that those portions of the Plan are therefore overbroad. (D.E. 556, Pages 13-14 ¶ 2(e)). Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding definition and investigation of sexual abuse cause class-wide constitutional injury, and that all of the Items in this Section are therefore unjustified. (D.E. 556, Pages 37-38).
b. Ruling on Objections The Court has amended this Section of the Plan to reach all children in DFPS custody, including TMC children. The Court is aware that the class before it is solely composed of PMC children. Because TMC and PMC children may reside in the same placement, failure to track the sexual abuse and sexual aggression history of TMC children risks exposing PMC children to sexual aggression or sexual abuse. See, e.g., PX 591 (filed under seal); PX 598 (filed under seal); (D.E. 328, Page 120) (noting that a child’s placement is not typically changed if the child’s status changes from TMC to PMC). The Objection is OVERRULED. In its December 2015 Order, the Court extensively documented the epidemic of physical and sexual abuse in the Texas foster care system and those findings are incorporated by reference. See (D.E. 368). At trial, the Court discovered RCCL does not track child-on-child abuse and therefore, there was no centralized, comprehensive data that shows which foster children have a history of physical or sexual abuse. (D.E. 368, Page 206). At trial, Plaintiffs’ expert, Dr. Miller, explained that tracking child-on-child abuse is critically important regarding
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subsequent placements and treatment needs. (D.E. 303, Page 8). Multiple witnesses testified at trial that there are always two victims when child-on-child abuse occurs and that sexually abused children often become abusers themselves. (D.E. 368, Pages 207-08). The Court found in its December 2015 Order that without tracking this information, no one would be aware of a child’s past regarding being either a perpetrator or a victim of child-on-child abuse, making it impossible to assure safe placements. (D.E. 368, Page 208).
In January 2017, the Court directed “the Special Masters are also ordered to work with DFPS to ensure that a child’s case record prominently identifies sexually abused PMC youth. Both the term ‘sexually abused’ and ‘sexually aggressive’ should be word searchable in the child’s records.” (D.E. 500, Page 26). DFPS has not created a profile characteristic for child “sexual abuse” in the electronic case record. (D.E. 546, Page 40). DFPS replied to questions from the Special Masters indicating the identification of all PMC children who have been sexually abused “can be pulled and aggregated via a manual process that requires a case read.” (D.E. 546, Pages 40-41, 132). Responding that, “labeling of victims is inappropriate, stigmatizing, and ultimately unhelpful,” DFPS indicated they do not intend to proceed with a profile characteristic for sexual abuse in the child’s electronic record. (D.E. 546, Pages 41, 138). Absent a manual reading of all its PMC children’s cases, which number in the many thousands, DFPS leadership cannot track all of the PMC children who have suffered sexual abuse to ensure system-wide those children are receiving appropriate services, including an appropriate placement. (D.E. 546, Page 41).
The Special Masters conducted a PMC child case record review in May 2017 and verified that DFPS has implemented within the child welfare electronic data system (IMPACT) a profile characteristic option to designate “child sexual aggression” and “sexual behavior problem” when
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a youth has sexually abused another child or is at high risk for perpetrating sexual assault. (D.E.
546, Page 41).
In its December 2015 Order, the Court ordered DFPS to “track child-on-child abuse, and
categorize it as such.” (D.E. 368, Page 252). Further, DFPS has known about the Court’s
concern regarding tracking child-on-child sexual abuse since the trial and has not taken sufficient
steps to cure the constitutional deficiency found by the Court. See (D.E. 368, Page 208).
Instead, DFPS has repeatedly stated it has no plans to track child-on-child sexual abuse and has
repeatedly stated to the Special Masters it does not intend implement policies to do so. (D.E.
368, Page 208; D.E. 546, Pages 40-41). As the Court found in its December 2015 Order, “DFPS
is equipped to track child-on-child abuse, but simply refuses to do so.” (D.E. 368, Page 213).
The Objection is OVERRULED.
N. PMC Children’s Placements
1. Effective March 2018, DFPS shall implement a policy that requires that no unrelated children more than three years apart in age be placed in the same room. The policy may also establish exceptions, including a thorough and documented assessment that certifies it is in the child’s best interest or that no risk of harm would result from placing any unrelated children more than three years apart in the same room. Any exceptions applied under this policy must be approved and documented in the child’s electronic record by the DFPS county director.
2. Effective March 2018, DFPS shall implement a policy that requires that no unrelated children with different service levels be placed in the same room. The policy may also establish exceptions, including a thorough and documented assessment by DFPS that certifies it is in the child’s best interest or that no risk of harm would result from placing any unrelated children of different service levels in the same room. Any exceptions applied under this policy must be approved and documented in the child’s electronic case record by the county director.
3. Effective immediately, DFPS may not place a child in the PMC class in an office overnight, and must track all instances if it does so, and report the same to the monitor(s) monthly. If, under any circumstance, a child in the PMC class spends the night in an office, DFPS staff must document that fact, and the reason, in an electronically available log maintained by DFPS in each county. These logs shall be submitted on the first day of every month to a designated senior manager in
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DFPS’ central office and to the monitor(s). The designated DFPS senior manager shall review these logs monthly and take immediate follow up action to identify and address problems encountered at the county level with respect to securing minimally adequate, safe placements for children in the PMC class.
4. Within six months of the Court’s Final Order, all PMC children under two years of age shall be placed in a family-like setting, including non-relative foster care, tribal foster care,64 kinship foster care and therapeutic foster care. DFPS may make exceptions to family-based placements for sibling groups of four or more children who cannot otherwise be placed together, children whose individual needs require hospitalization, treatment and/or medical care or young children who are placed with their minor parent in the PMC class and who may require services provided in a non-family-like placement. All exceptions must be approved by a supervisor and documented in the child’s electronic case record.
5. Within 12 months of the Court’s Final Order, all PMC children under six years of age shall be placed in a family-like setting, including non-relative foster care, tribal foster care, kinship foster care and therapeutic foster care. DFPS may make exceptions to family-based placements for sibling groups of four or more children who cannot otherwise be placed together, children whose individual needs require hospitalization, treatment and/or medical care or young children who are placed with their minor parent in the PMC class and who may require services provided in a non-family-like placement. All exceptions must be approved by a supervisor and documented in the child’s electronic case record.
6. Within 24 months of the Court’s Final Order, all PMC children under the age of 13 shall be placed in a family-like setting, including non-relative foster care, tribal foster care, kinship foster care and therapeutic foster care. DFPS may make exceptions to family-based placements for sibling groups of four or more children who cannot otherwise be placed together, children whose individual needs require inpatient psychiatric hospitalization, treatment and/or medical care or young children who are placed with their minor parent in the PMC class and who may require services provided in a non-family-like placement. All exceptions must be approved by a supervisor and documented in the child’s electronic case record.
a. Objections
Defendants object that there is no basis in the record for finding that existing DFPS
policies or practices regarding PMC child placements cause class-wide constitutional injury, and
that all of the Items in this Section are therefore unjustified. (D.E. 556, Page 39).
64 Tribal foster care refers to “a foster home . . . or a comparable facility licensed or approved by . . . an Indian Tribal licensing authority . . . .” See 40 Tex. Admin. Code § 700.1307(2) (internal quotation marks omitted).
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Defendants also object to the logistical challenges of implementing all the provisions contained in this section. (D.E. 556, Page 39). Defendants argue the provisions would require substantial budget appropriations, would be impossible to implement in the timeframe provided, and would impact permanency for children. (D.E. 556, Page 39).
b. Ruling on Objections The Court’s December 2015 Order documented extensive evidence of the harms caused by DFPS’s practice of placing unrelated children of different ages and service levels in the same room, particularly sexual and physical abuse. See, e.g., (D.E. 368, Pages 74, 236-37). At trial, Plaintiffs’ expert Mary Richter testified that a “very high percentage of . . . younger children were being placed with older children” and that “creates more risk.” (D.E. 326, Pages 22-23). Richter also testified the most significant risk to children’s safety in Foster Group Homes is the fact they are unrelated. (D.E. 326, Page 14). The instinct which related children have not to harm each other is not present between completely unrelated children. (D.E. 368, Page 236). In fact, Defendants’ expert on social work, Linda McNall, testified that multiple unrelated children living in one home are exposed to different risks than a similar number of related children living in a single home. (D.E. 368, Page 51; D.E. 319, Pages 24-25). However, DFPS does not prohibit teenagers from sharing a bedroom with younger children. (D.E. 315, Pages 10-11). On top of this, DFPS allows for young girls and teenage boys to be placed in the same Foster Group Home. (D.E. 368, Page 235; D.E. 300, Page 63). Former foster child Sharp testified a boy was sexually abused almost every night by one of the older boys in the home and due to DFPS not regulating the mixing of ages in bedrooms, the abuser and the abused shared a bunkbed. (D.E. 324, Page 172). This is just one of the many tragic events documented in the Court’s December
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2015 Order that resulted from the mixing of children of different ages. See, e.g., (PX 372; PX 377; PX 406; PX 457; PX 459; PX 502; PX 2014, Pages 31-36).
Additionally, mixing varying service levels exacerbates these problems. (D.E. 368, Page 237). DFPS does not impose any prohibition or limitations on the mixing of children of different service levels. (D.E. 368, Page 235). Evidence at trial showed 89% of Foster Group Homes with seven or more foster children had a mix of basic, moderate, specialized, or intense service levels. (D.E. 326, Page 24). When service levels are mixed, children’s outcomes may be damaged to an unconscionable degree. (D.E. 368, Page 238; D.E. 326, Page 17). For instance, placing basic level children in a home with very aggressive or self-injurious children can lead to bullying or otherwise damage the basic level child. (D.E. 326, Page 17).
Based on the Court’s extensive findings of fact at trial, the Court included in its December 2015 Order a directive for “[t]he Special Master [to] recommend what age ranges of unrelated children are appropriate to be placed in the same room in any residential facility.” (D.E. 368, Page 252).
The Special Masters asked DFPS to share a draft or final policy and/or regulation that prohibits the placement of unrelated children who are more than three years apart in the same room. (D.E. 546, Page 43). DFPS responded that the agency “has no plans to adopt policy or regulation that prohibits the placement of unrelated children who are more than three years apart in the same room.” (D.E. 546, Pages 43, 131). DFPS has still not developed a policy or regulation that prohibits the placement of unrelated children who are more than three years apart in the same room. (D.E. 546, Pages 43, 128-31).
Based on the Court’s extensive findings of fact at trial, the Court in January 2017 ordered “the Special Masters to work with DFPS to ensure that unrelated PMC children with different
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service levels not be placed in the same room unless a thorough and documented assessment is conducted by DFPS staff certifying that such placement is safe and appropriate for each PMC child.” (D.E. 500, Page 27). The Special Masters asked DFPS to share a draft or final policy and/or regulation that prohibits the placement of unrelated PMC children with different service levels in the same room unless a thorough and documented assessment is conducted by DFPS staff certifying that such placement is safe and appropriate for each PMC child. (D.E. 546, Page 43). DFPS responded that “[a]gency rules (minimum standards) . . . allow children receiving different types of service to reside in the same room if the provider evaluates the living quarters for each child and ensures there is no conflict of care with the child’s best interests; the arrangement will not adversely impact other children in the room; the number of children in the room is appropriate at all times; caregivers can appropriately supervise all children and the provider can meet the needs of all children in the room.” (D.E. 546, Pages 43-44, 128-31).
Further, the Court found it is typical for foster children to sleep in CPS offices because there are no available beds. (D.E. 368, Page 219; DX 18, Page 1; PX 1217, Page 5; D.E. 327, Pages 201-02). The Special Masters requested DFPS report the number of children who spent a night in a DFPS office, waiting for a placement. (D.E. 546, Page 44). DFPS reported it does not track the number of PMC children who experience a first night sleeping in an office. (D.E .546, Page 44). DFPS begins its tracking on the child’s second night. (D.E. 546, Page 44).
The Special Masters asked DFPS how many foster children spent a night in an unlicensed facility, such as a hotel or a caseworker’s office in 2016. (D.E. 546, Page 44). DFPS reported that from September 2016 to August 2017, 554 children did not have a placement. (D.E. 546, Page 44). DFPS reported this information showing the total number of children without a
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placement broken down by each of these 12 months, with a high of 84 children during May 2017 and a low of 17 children during August 2017. (D.E. 546, Page 44).
Based on the Court’s extensive findings of fact at trial, the Court in January 2017 ordered the final Implementation Plan “should include a provision that, within 6 months from the date of the final order, all PMC children under two years of age shall be placed in a family-like setting.” (D.E. 500, Pages 27-28). The Special Masters asked DFPS to share a draft or final policy and/or regulation that all PMC children under two years of age shall be placed in a family-like setting. (D.E. 546, Page 45). The Special Masters invited DFPS to identify exceptions, such as sibling groups of four or more children who cannot otherwise be placed together, treatment and/or medical care, or young children who are placed with a minor parent. (D.E. 546, Page 45). DFPS declined to provide a draft policy and/or regulation, pointing to its existing policies and minimum standards, which do not require that children under two years of age be placed in family-like settings. (D.E. 546, Page 45).
Based on the Court’s extensive findings of fact at trial, the Court in January 2017 ordered the final implementation plan should include a provision that, “within 12 months from the date of the final order, all PMC children under six years of age shall be placed in a family-like setting.” (D.E. 500, Page 28).
Based on the Court’s extensive findings of fact at trial, the Court in January 2017 ordered this final implementation plan must include a provision that, “[w]ithin 24 months from the date of the final order, all PMC children under thirteen shall be placed in a family-like setting.” (D.E. 500, Page 28).
Dr. Miller testified at trial that placing children in the most family-like setting possible “is not only what’s best for children, it’s absolutely essential if those children are going to be
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whole and remain whole.” (D.E. 368, Page 224; D.E. 303, Pages 51-52). DFPS policy states
when appropriate, placements should be with families as opposed to group care facilities. (D.E.
368, Page 218; PX 50, Page 4). However, the Court reiterates that policies not practiced have no
value. Ruiz, 679 F.2d at 1160. Accordingly, the Court finds there is sufficient basis in the record
and the Objection is OVERRULED.
Defendants were ordered to draft policies and procedures to ensure PMC children are free
from an unreasonable risk of harm. (D.E. 368, Page 245). Despite this, Defendants repeatedly
refused to provide the Special Master with any sort of policy or regulation concerning any of the
provisions in this section. (D.E. 546, Pages 43-45). Defendants repeatedly stated they were not
creating such policies or that the current policies did not require such provisions. (D.E. 546,
Page 43-45). However, the existence of current policy means nothing if those policies are not
being practiced. See Ruiz, 679 F.2d at 1160; supra at II.B.1. Defendants’ Objection repeats
their overruled General Objection that the Order requires new appropriations. Accordingly, the
Objection is OVERRULED.
O. DFPS Placement Array
1. DFPS shall immediately implement a policy that establishes single-child homes as the presumptive placement for all sexualized children, either as the aggressor or the victim. The policy also will allow for exceptions, including: placement in a therapeutic setting for treatment; placement with siblings when the safety of all children involved can be closely monitored and secured; a thorough and documented assessment certifies that it is in the child’s best interest to be placed in a home with other children and the safety of all children involved can be closely monitored and secured. Any exceptions applied under this policy must be approved and documented by a senior DFPS manager.
2. DFPS shall ensure it has at least as many foster home placements for children, by catchment area,65 by the end of FY 18 as the agency found it requires to meet the
65 At a December 21, 2016 hearing, the Special Master defined a “catchment area” as a “cluster of counties populous enough to move foster care redesign forward.” (D.E. 500, Page 28 n. 20). Counsel for the State agreed with this definition. (D.E. 500, Page 28 n. 20). Cf. Tex. Fam. Code Ann. § 264.152 (West) (“‘Catchment area’ means a geographic service area for providing child protective services that is identified as part of community-based care.”).
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needs of children in its January 2017 Foster Care Needs Assessment,66 Table 5. DFPS shall report quarterly to the monitor(s) on the available supply of foster homes for children by catchment area as of the last date of the quarter.
a. Objection Defendants object that compliance with Item 2 depends on factors outside Defendants’ control. (D.E. 556, Pages 40-41). Defendants state that the Plan would require major budget appropriations, that DFPS cannot compel people to become foster parents or providers to open placements, and that natural disasters may render compliance impossible. (D.E. 556, Pages 4041).
b. Ruling on Objection Defendants’ Objection to Item 2 largely repeats Defendants’ overruled General Objection that the Order requires new appropriations. The Court returns to this Objection to note that while Defendants obviously cannot compel Texans to serve as foster parents, there are numerous steps Defendants can take to expand their placement array, such as greater recruiting efforts or increased incentives for becoming a foster parent. Defendants have known about the Court’s concerns regarding the placement array for over two years and the deficiencies persist. In the December 2015 Order, Defendants were ordered to “establish and implement policies and procedures” to remedy the deficiencies. (D.E. 368, Page 245). Despite this, Defendants refused to provide a draft plan to develop the placement array needed to address geographic, demographic, and service level deficits identified in its own foster care needs assessment. (D.E. 546, Page 47). If a natural disaster makes compliance impossible sometime in the future, Defendants may raise the issue with the Court then. Further, both parties’ experts (Dr. Viola
66 Foster Care Needs Assessment is the term used by DFPS to describe its analysis of historical foster care placement activity to understand how the system has performed in the past, along with a forecast of foster care placement demand. See (D.E. 507-1, Page 4).
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Miller, Gail Gonzalez, and Frianita Wilson) testified that sexually aggressive children should be
placed in single child placements. (D.E. 303, Page 8; D.E. 328, Page 161; D.E. 329, Page 161);
see infra at III.N.6.b. Plaintiffs’ expert, Dr. Viola Miller, testified that sexually abused children
should be in single child placements. (D.E. 303, Page 8). Considering that DFPS does not track
single child placements and has no present intention of doing so, it is inexplicable that DFPS can
determine that they do not have such placements and cannot have such placements. (D.E. 492,
Page 4). This Objection to Item 2 is OVERRULED.
3. By June 2018, DFPS shall complete and submit to the Court an update of its January 2017 Foster Care Needs Assessment, and include: a. A review and assessment of the placement needs of sibling groups that are separated into different placements and children who have been identified as sexually aggressive or whose IMPACT records document their having been sexually abused. b. Data on the number of foster homes in each county that could be readily designated as single-child homes. c. Data on the number of homes in each county available for the placement of sibling groups of various sizes. d. An analysis of the number of homes in each county and region that have a deficit or surplus of single-child homes to meet the needs of children from the same counties and regions who are sexually aggressive or have been sexually abused. e. An analysis of the number of homes in each county and region that have a deficit or surplus of homes that can meet the placement needs of sibling groups from the same counties and regions or catchment areas.
a. Objection
Defendants object that Item 3 “circumvents” the requirements of Texas Family Code
Section 264.1261. (D.E. 556, Page 41).
b. Ruling on Objection
Section 264.1261 of the Texas Family Code creates certain reporting requirements
regarding DFPS’s placement array. The Court finds that compliance with both this Order and
Section 264.1261 would be both possible and reasonable. Overlap between this Court’s Order
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and a newly enacted state law is irrelevant. See In re Rodriguez, 695 F.3d 360, 369 (5th Cir. 2012). Defendants’ Objection as to Item 3 is OVERRULED.
4. Effective immediately, DFPS shall immediately establish a tracking mechanism to identify how many children are in all placements where a PMC child resides, including foster, biological, non-foster and adoptive children, as well as each placement’s licensed capacity. By May 2018, DFPS shall publish this information on its website and update the information quarterly. a. Objection Defendants object that the timeline for completing Item 4 is impossible. (D.E. 556, Page
41). b. Ruling on Objection
The Court again returns to Defendants’ logistical Objection to emphasize that Defendants have known about the Court’s concerns with the lack of a tracking system since the Court identified them two years ago in its December 2015 Order. (D.E. 368, Page 253). The Court’s December 2015 Order ordered that the “State shall establish and implement policies and procedures to ensure that Texas’s PMC foster children are free from an unreasonable risk of harm.” (D.E. 368, Page 245). Further, Defendants rebuffed the Special Master’s requests for plans resolving the issue and inquiries into how long an overhaul would take. (D.E. 546, Pages 47, 113-17). Defendants now object, fifteen days after the Plan was filed, that the Plan’s timelines for these goals are “impossible.” (D.E 556, Page 41). As is the case with Defendants’ Objection to the orders on PMC Children’s Records, supra III.B, their claim of impossibility is not supported by anything other than the Defendants’ representation. For these reasons, and the reasons given supra at II.B.9, this Objection is OVERRULED.
5. Effective June 2018, DFPS shall establish and implement a policy that requires a transition plan of no less than two weeks to change a PMC child’s placement if the disruption is due to a change in the child’s level of care. The policy shall require a documented assessment to determine if the child should remain in the same
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placement for an extended period if the assessment determines the child’s behavioral or emotional challenges are likely to re--‐escalate if the placement is changed. 6. Beginning in June 2018, DFPS shall report to the monitor(s) semi-annually on PMC children's placement moves, and ensure that all such moves, and the reasons for the placement moves, are documented in the child’s electronic case record.
a. Objection Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding placement array cause class-wide constitutional harm, and that all of the Items in this Section are therefore unjustified. (D.E. 556, Page 40).
b. Ruling on Objection The Court documented extensively in its December 2015 Order the harms presented by DFPS’s inadequate placement array. See (D.E. 368). Specifically, the Court found in its December 2015 Order that not placing sexualized children in single-child placements causes an unreasonable risk of harm to PMC children. (D.E. 368, Page 226). The trial transcript includes testimony from two defense witnesses, Gail Gonzalez and Frianita Wilson (D.E. 328, Page 161; D.E. 329, Page 161), indicating that DFPS should look to place sexualized children in placements or in homes where the child is the only one in the home. (D.E. 546, Page 46). There is testimony in the record of the sexualization of children due to sexual abuse, causing sexually abused children to become aggressors or perform sexual acts. (D.E. 326, Pages 15-16). For example, D.I. was repeatedly sexually abused by older boys at his placement yet he was subsequently placed in a foster home with a five year old biological granddaughter with whom he engaged in sexually inappropriate conduct. (D.E. 326, Pages 92-93, Page 110-11). The Court found that DFPS’s inadequate placement array prevents sexualized children from being placed appropriately. (D.E. 368, Page 227). In its December 2015 Order, the Court included among its goals for the implementation plan a directive for DFPS to “track how many placements in its
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array are designated as single-child homes (including biological and adopted children), and track how many foster children need single child homes. DFPS shall explain its criteria for determining which children need single-child homes. DFPS shall ensure that all children who need single-child homes are placed in such homes.” (D.E. 368, Page 253).
The Special Masters asked DFPS to report the soonest date DFPS could begin to track single child homes. (D.E. 546, Page 47). DFPS replied that it “has no plans to track single child homes.” (D.E. 546, Pages 47, 118; D.E. 492, Page 4).
The Special Masters asked DFPS what processes it administers to match specific placements to PMC children who, through documented assessment, are determined to need a single child home. (D.E. 546, Page 47). DFPS responded that it “has no such processes” and referred the Special Masters back to its earlier response that it “has no plans to track single child homes.” (D.E. 546, Pages 47, 118).
The Court’s December 2015 Order documented extensively how DFPS’s placement array harms children by forcing them to be placed far from their home communities. (D.E. 368, Page 227). The geographic distribution of services provided by DFPS is imbalanced, meaning capacity and types of placements are more readily available in certain areas of the state but not others. (D.E. 369, Page 218). As a result, thirty-nine percent (39%) of children are placed out of region and sixty percent (60%) are placed out of county. (D.E. 315, Pages 41-42; D.E. 300, Page 101). The inadequate array results in children not being placed with their siblings due to the lack of placement resources. (D.E. 368, Page 219). This directly contravenes established professional standards and Texas’s own policy. (D.E. 368, Page 219). The inadequate array also results in children being placed in inappropriate facilities, including overreliance on congregate care facilities. (D.E. 368, Page 219). The evidence in the record found that Texas’s percentage
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of children twelve and younger who had been in care at least 18 months and were placed in group homes or institutions was almost three times the national average. (PX 2128, Page 1). Despite this inadequate array, DFPS has repeatedly refused to develop a plan to create a placement array necessary to address these deficiencies. (D.E. 546, Page 47).
DFPS completed and filed with the Court a Foster Care Needs Assessment, dated January 2017. (D.E. 507-1). The Assessment includes on page 43 in Table 5, Column 1, a forecast for the agency’s FY17-18 need for foster homes by catchment area. (D.E. 507-1, Page 43). The Special Masters asked DFPS, based on its Foster Care Needs Assessment, to provide a draft plan or plan outline for a 12-month period to develop the placement array needed to address the specific geographic, demographic and service level placement deficits identified in the Assessment. (D.E. 546, Page 47). DPFS responded that while they are “continually working to address placement capacity within the agency” they are “declining to develop such a 12-month plan.” (D.E. 546, Pages 47, 118).
The Special Masters asked DFPS if the agency can report aggregate data on how many children are placed in foster homes with non-foster or adoptive children. (D.E. 546, Page 48). DFPS responded, “DFPS does not have the capability to report aggregate data on how many PMC children are placed in foster homes that contain non-foster or adoptive children, and the [Provider] Portal is not moving forward at this time. (D.E. 546, Page 48). DFPS does possess the capability to report the number of foster children placed in homes with other DFPS foster children at a certain time and date.” (D.E. 546, Pages 48, 121). DFPS subsequently reaffirmed, “no additional information will be provided. Agency staff have determined that the aggregate data that can be produced are those referenced in the original response (DFPS foster children placed with other foster children).” (D.E. 546, Pages 49, 137).
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The Special Masters’ team conducted a case record review of 50 randomly selected PMC children’s cases to confirm that children’s individualized files accurately reflected the information contained in the agency’s placement moves report. (D.E. 546, Page 49). The Special Masters’ team confirmed the aggregate report did accurately reflect the information on placement moves found in PMC children’s files. (D.E. 546, Page 49).
Accordingly, the Objection is OVERRULED. P. Foster Care Group Homes 1. Effective immediately and ongoing thereafter, no PMC child may reside in a Foster Group Home placement.
a. Objections Defendants object that Item 1 requires the closure of Foster Group Homes without regard to the number of children in the home. (D.E. 556, Page 41). Defendants object that there is no basis in the record for finding that existing DFPS policies or practices regarding Foster Group Homes cause class-wide constitutional injury, and that both of the Items in this Section are therefore unjustified. (D.E. 556, Page 41).
b. Ruling on Objections Defendants represented to the Court that existing Foster Group Homes were in the process of being phased out, and the Court is aware that the Texas Legislature has instituted a process to transition all Foster Group Homes to another license type or to close them. See H.B. 7 § 78; (D.E. 410, Page 33). For the purpose of Item 1, the term “Foster Group Home” does not refer to any placement housing fewer than seven children, inclusive of biological, adoptive, nonfoster and foster children. As properly interpreted, this Item will cause minimal disruption— Defendants state in their objection that there are “over 100” children in “all Foster Group Homes,” so the number still in Foster Group Homes containing greater than six children must be
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still lower. (D.E. 556, Page 42) (emphasis in original). To the extent that Defendants maintain their Objection to Item 1 despite this clarification, it is OVERRULED.
The Court’s December 2015 Order described a litany of harms caused by Foster Group Homes, including rampant physical and sexual abuse. E.g., (D.E. 368, Pages 182, 216, 236-37); see also id. at 239 (citing further examples from the record). The December 2015 Order also described how Texas’s Foster Group Homes effectively exist outside of any professional standards, because no other state allows such large numbers of unrelated foster children to reside together without more strictly regulating the home as a congregate care facility. See (D.E. 368, Page 233-34). The Court’s December 2015 Order enjoined DFPS to “immediately stop placing PMC foster children in unsafe placements, which include Foster Group Homes that lack 24-hour awake-night supervision. Foster Group Homes that immediately require 24-hour awake-night supervision may continue to operate while the Special Masters and the State craft and enforce the Implementation Plan.” (D.E. 368, Page 245). As of December 21, 2016, Texas still maintained 57 foster care group homes that they represented had 24-hour awake-night supervision. (D.E. 492, Page 2).67
To verify the overnight supervision plans submitted to the Special Masters by DFPS with respect to the State’s Foster Group Homes, Special Master Kevin Ryan and a member of the Special Masters’ team, Deborah Fowler, conducted visits with randomly selected Foster Group Home caregivers in their homes. (D.E. 546, Page 50). DFPS counsel and staff accompanied Mr. Ryan and Ms. Fowler. (D.E. 546, Page 50). All of the visits except one were announced in
67 Texas advised the Court that there was one additional Foster Group Home with seven or more children, but that none of the children in that home were in the PMC class. (D.E. 492, Page 2 n. 1). According to the Advisory, DFPS was working with the caregivers to establish awake-night supervision in that home as well, but had not accomplished it as of the Advisory’s filing. (D.E. 492, Page 2 n. 1).
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advance. (D.E. 546, Page 50). The visits occurred at staggered times throughout the day. (D.E. 546, Page 50).
In the first Foster Group Home visited by Mr. Ryan, on March 1, 2017, eight children resided in the home: three children in the custody of DFPS, ages 10, 9 and 2, and five birth/adopted children, ages 17, 14, 11, 8 and 2. (D.E. 546, Page 50). The caregivers had installed a camera system throughout the home, featuring a motion detection system. (D.E. 546, Page 50). When there was activity in the home at night, the camera system recorded the movement(s) that it recorded in a log. (D.E. 546, Page 50). In addition, the caregivers hired a night nanny to stay in the home overnight while the family slept. (D.E. 546, Page 50).
In the second Foster Group Home visited by Mr. Ryan, on March 1, 2017, seven children resided in the home: two boys in the custody of DFPS, ages 4 and 5, and five of the couple’s birth children, all girls, ages 13, 9, 7, 5 and 1. (D.E. 546, Page 50). The caregivers, a married couple, reported they provided supervision by alternating shifts overnight. (D.E. 546, Page 50). The couple described the arrangement as difficult and looked forward to adopting the boys and closing their home to future placements. (D.E. 546, Page 50).
In the first Foster Group Home visited by Ms. Fowler on February 28, 2017, eight boys, ages 18 and under, resided in the home. (D.E. 546, Page 50). Four children were in the custody of DFPS and four were adopted. (D.E. 546, Page 50). The foster children were 18, 15, 13 and 11 years old. (D.E. 546, Page 50). The 15-year-old reportedly had behavioral challenges, and the caregiver indicated that those challenges had led him to ask for the boy to be moved. (D.E. 546, Page 50). A live-in, adult female supported the caregiver in oversight of the home. (D.E. 546, Page 50). The family’s awake-night supervision plan included an individual who lived in back of the house in a shed just a few feet from the back door. There was also an old RV behind
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the house, and the caregiver indicated someone else occasionally stayed in the RV. (D.E. 546, Page 50). The awake-night supervisor’s home appeared to be a gardening shed. (D.E. 546, Pages 50-51). It was new, and it had a light mounted over the door of the type that one can buy at stores like Home Depot. (D.E. 546, Page 51). The caregiver indicated the awake-night supervisor typically came home from work around 10:30 pm or 11:00 pm. (D.E. 546, Page 51). The caregiver said he and the adult female went to bed around 11:30 pm or midnight, and the awake-night supervisor was said to then stay awake for the rest of the night, performing occasional walk-throughs of the home, until the caregiver rose the next morning. (D.E. 546, Page 51).
In the second Foster Group Home visited by Ms. Fowler, on February 28, 2017, nine children resided in the home: three girls in the custody of DFPS, ages 11, 7 and 5, and six adopted children, two boys who were 16 and 10, and four girls who were 10, 7, 6 and 4 years old. (D.E. 546, Page 51). The caregivers installed an alarm in the boys’ bedroom that beeped if the boys opened their door. (D.E. 546, Page 51). The caregivers, a married couple, reported they provided overnight supervision by alternating shifts overnight. (D.E. 546, Page 51).
In the third Foster Group Home visited by Ms. Fowler, on March 6, 2017, seven children under the age of 18 resided in the home. (D.E. 546, Page 51). One child, a 16 year-old daughter, is adopted. (D.E. 546, Page 51). Six of these children were foster youth: 3 girls who were 14, 11 and 9 years old, and 3 boys who were 17, 15 and 10 years old. (D.E. 546, Page 51). Of the foster youth in the home, one had a specialized Level of Care designation, and three had moderate Levels of Care designations, indicating heightened needs. (D.E. 546, Page 51).
The doors to the bedrooms were connected to an alarm and made a loud noise when opened. (D.E. 546, Page 51). The caregivers, a married couple, reported they provided
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overnight supervision by alternating shifts overnight. (D.E. 546, Page 51). The caregivers also had two adult sons who were members of the household, ages 47 and 18. (D.E. 546, Page 51). The caregiver said her live-in 47-year-old adopted son, who is disabled, helped his parents with the awake-night supervision. (D.E. 546, Page 51). It appeared he has an intellectual or developmental disability. (D.E. 546, Page 51). The caregiver pointed out that his role in overnight supervision was limited to getting up if anything happened or required intervention. (D.E. 546, Page 510).
In the fourth Foster Group Home visited by Ms. Fowler, on March 7, 2017, seven children under the age of 18 resided in their home. (D.E. 546, Page 51). Four were foster youth: two boys ages 8 and 3 years old, and two girls 6 and 5 years old. (D.E. 546, Page 51). The couple’s three biological children were 16, 14 and 12 years old. (D.E. 546, Page 510). The caregivers, a married couple, reported they provided overnight supervision by alternating shifts overnight. (D.E. 546, Pages 51-52). The caregiver’s mother was reportedly able to help on occasion when someone was sick or the husband worked outside the home. (D.E. 546, Page 52).
In the fifth Foster Group Home visited by Ms. Fowler, on March 7, 2017, three foster children resided in the home, one boy age 1 year old, and two girls, ages 5 and 2 years old. (D.E. 546, Page 52). The caregivers, a married couple, also had four birth children who lived in the home: daughters, ages 15, 12, 9 and 6 years old. (D.E. 546, Page 52). In order to avoid an awake-night supervision requirement, the caregivers reported that every night one of the foster parents’ biological children left the home with an older, adult sibling who maintained a separate residence, and stayed at her house. (D.E. 546, Page 52).
In the sixth Foster Group Home visited by Ms. Fowler, on March 8, 2017, seven children resided in the home, only one of whom was a foster child: a 2 year old girl. (D.E. 546, Page 52).
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The caregivers have six young children who they have adopted, and one adult biological son (22 years old) who also lives with them. (D.E. 546, Page 52). The caregivers, a married couple, reported they alternated shifts for awake-night supervision. (D.E. 546, Page 52). The plan allowed the caregivers approximately 5 to 6 hours of sleep per night, which the wife said was enough for her. (D.E. 546, Page 52). Her great grandmother was also reportedly available to help when needed, and their adult son who lived with them also helped when needed. (D.E. 546, Page 52).
The awake-night supervision plans utilized in these homes invoke the same concerns the Court found concerning overworked caseworkers. The caregivers in these homes are staying awake throughout all hours of the night rather than bringing in a qualified outside person to provide supervision. Exhausted caregivers, like overworked caseworkers, provide lower quality care to children. The actions currently being taken concerning Foster Group Homes do not follow the spirit of the Court’s December 2015 Order and do not cure the multitude of harms present in Foster Group Homes.
The Court’s January 2017 Opinion requires this Implementation Plan include the elimination of Foster Group Homes as placements for children in the PMC class. (D.E. 500, Page 29). In May 2017, Texas House Bill 7 amended the Human Resources Code (HRC), Chapter 42, and prohibited Licensing from issuing any new permits to Foster Group Homes after August 31, 2017. (D.E. 546, Page 52). House Bill 7 allows any Foster Group Home licensed or verified before September 1, 2017, to continue to operate under the law in effect prior to that date, until Licensing develops and implements procedures for conversion to a traditional foster home and relinquishment of the Foster Group Home License. (D.E. 546, Page 52). House Bill 7 also lowered the minimum capacity for General Residential Operations (GRO), a form of
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congregate care with heightened licensure requirements, from 13 children to 7 children. (D.E. 546, Page 52). The Objection is OVERRULED.
2. Effective immediately and ongoing thereafter, no PMC child may reside in any family-like placement that houses more than six children, inclusive of biological, adoptive, non-foster and foster children. Family-like placements include non-relative foster care, tribal foster care, and therapeutic foster care.68 a. Objection Defendants object that Item 2 contradicts a newly enacted state law allowing foster
family homes to have up to 8 children. (D.E. 556, Page 42-43). b. Ruling on Objection
Defendants’ objection to Item 2 is that the Texas Legislature recently enacted a law allowing DFPS to expand the capacity of foster family homes to eight children. See HB 7, Acts 2017, 85th Leg., R.S., Ch. 317, eff. September 1, 2017. The law cited by Defendants says only that DFPS “may” issue exceptions to the six-child capacity limit, it does not mandate it. The Court’s Order, then, does not require Defendants to violate state law. Ultimately, however, this Court has the responsibility to take the steps necessary to cure violations of the Constitution. To the extent HB 7 does conflict with this Court’s order, a “[s]tate-law prohibition against compliance with [a] District Court’s decree cannot survive the command of the Supremacy Clause of the United States Constitution.” See Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 695 (1979). Defendants’ Objection to Item 2 is OVERRULED. For a discussion as to the basis for this relief, see supra at III.P.1. IV. MONITORING
Pursuant to its inherent authority and Federal Rule of Civil Procedure 53, the Court appoints Monitors to superintend compliance with its decree. Remedying the numerous,
68 Defendants’ Objection that Item 2 affected kinship placements is SUSTAINED. (D.E. 556, Pages 43-44). The Court has deleted the reference to kinship placements.
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decades-old problems in Texas’s foster-care system is just as complex a task as was the reform of Texas’s prison system mandated by Ruiz v. Estelle. See 679 F. 2d at 1160. “The scope and complexity of the decree” in this case, like that of the decree in Ruiz, weigh heavily in favor of appointing a monitor. 679 F. 2d at 1160; accord Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F. 2d 536, 543 (9th Cir. 1987). “The sheer size” of the Texas foster-care system, like “[t]he sheer size of the Texas prison system[,] could be found to pose special difficulties in implementing a remedial decree.” Ruiz, 679 F. 2d at 1160 n. 238. Appointment of a monitor in this situation is even more appropriate today than it was when Ruiz was decided because Rule 53 has since been amended to explicitly recognize that “[r]eliance on a master is appropriate when a complex decree requires complex policing . . . .” See Fed. R. Civ. P. 53 advisory committee’s note (citing Local 28, Sheet Metal Workers’ Internat’l Ass’n v. EEOC, 478 U.S. 421, 481-82 (1986)). Institutional reform of a massive state agency, as the Constitution requires here, is a “posttrial matter[] that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(C).
Because the State of Texas has failed to rectify long-standing problems with its fostercare system despite decades of awareness and extensive reports and recommendations by internal and external authorities, this Court concludes that “unless directed otherwise by some authority, the studies and testing will continue, no remediation will occur and the dangerous condition[s] will continue to exist.” See Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 263 F. Supp. 2d 796, 834 (D.N.J. 2003), aff’d 399 F. 3d 248 (3d Cir. 2005); (D.E. 500, Page 12) (discussing Texas’s failure to act upon twenty years of studies conducted or commissioned by the State); (D.E. 368, Pages 201-04) (discussing Texas’s inadequate response to two internal studies finding error rates of 64.6% and 75%, respectively, in its investigations of abuse and negligent supervision). The
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State of Texas’s unwillingness to assist the Court in developing a remedy, its continued
insistence that it has not violated the Constitution, and its failure to conduct court-ordered
workload studies bolster that conclusion. See Howe v. City of Akron, 801 F. 3d 718, 737-38 (6th
Cir. 2015); (D.E. 500 at 23); see also Ruiz, 679 F. 2d at 1160 (5th Cir. 1982) (citing the Texas
Department of Corrections’ “failure to acknowledge even ‘completely evident’ constitutional
violations” as one of the considerations justifying the lower court’s appointment of a monitor).
Finally, the disconnect between the written policies of DFPS and its actual practices
provides another reason why this Court finds appointment of a monitor necessary to ensure
compliance with this Order. See Ruiz, 679 F. 2d at 1160; (D.E. 500, Page 11) (“[P]olicies not
practiced are insufficient to address the constitutional deficiencies found in the Court’s 2015
Order.”).
Therefore, it is ORDERED that:
1. The Court hereby appoints Kevin Ryan69 and Deborah Fowler as the Monitors of this Final Order, responsible to assess and report on Defendants’ compliance with the terms of this Final Order. The Monitors shall be responsible solely to the Court but shall work actively with the parties to assure the effective and prompt implementation of this Order. The Monitors shall proceed with all reasonable diligence and shall commence their duties no later than January 19, 2018. The Monitors shall serve until the Court determines, upon Defendants’ application, that the Monitors are no longer necessary.
2. Neither party, nor any employee or agent of either party, shall have any supervisory authority over the Monitors’ activities, reports, findings, or recommendations. The retention of the Monitors shall be conducted solely pursuant to the procedures set forth in this Order and shall not be governed by any formal or legal procurement requirements. The Monitors shall have a budget and staff sufficient to allow the Monitors to carry out the responsibilities set forth in this Final Order, and may contract with such experts or consultants as the Monitors may deem appropriate, in consultation with the Court. The Monitors, and any experts or consultants hired by the Monitors, may initiate and receive ex parte communications with the parties, and with the Court.
69 The Court’s previous Order of Appointment (D.E. 379) on March 21, 2016 naming Kevin Ryan as Special Master is superseded by this Order.
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3. The Monitors’ duties shall include to independently verify data reports and statistics provided pursuant to this Final Order. The Monitors shall have the authority to conduct, or cause to be conducted, such case record reviews, qualitative reviews, and audits as the Monitors reasonably deem necessary. In order to avoid duplication, DFPS shall provide the Monitors with copies of all state-issued data reports regarding topics covered by this Final Order. Notwithstanding the existence of state data, data analysis or reports, the Monitors shall have the authority to prepare new reports on all terms of this Final Order to the extent the Monitors deem necessary.
4. The Monitors shall periodically conduct case record and qualitative reviews to monitor and evaluate the Defendants’ performance with respect to this Final Order. The Monitors shall also review all plans and documents to be developed and produced by Defendants pursuant to this Final Order and report on Defendants’ compliance in implementing the terms of this Final Order. The Monitors shall take into account the timeliness, appropriateness, and quality of the Defendants’ performance with respect to the terms of this Final Order.
5. The Monitors shall provide a written report to the Court every six months. The Monitors’ reports shall set forth whether the Defendants have met the requirements of this Final Order. In addition, the Monitors’ reports shall set forth the steps taken by Defendants, and the reasonableness of those efforts; the quality of the work done by Defendants in carrying out those steps; and the extent to which that work is producing the intended effects and/or the likelihood that the work will produce the intended effects.
6. The Monitors shall have free and complete access to records maintained by Defendants, its divisions and any successor agencies or divisions, and by its private agency partners. The Monitors shall also have free and complete access to the staff of DFPS; its divisions and any successor agencies or divisions; persons within the executive branch; private agency partners; PMC children in the care of DFPS and of private agencies; and other individuals that the Monitors deem relevant to their work. DFPS shall direct all employees and contract providers to cooperate fully with the Monitors and shall assist the Monitors in gaining free access to other stakeholders in the child welfare system. Defendants shall provide the Monitors with free and, upon request, private access to all individuals within DFPS and persons within the Executive Branch of Texas State government, as the Monitors choose; to assist the Monitors in gaining access to other stakeholders in the child welfare system (including but not limited to the staff of contract agencies); and to provide the Monitors with free access to all documents, data, and premises it deems relevant to their work (including but not limited to documents and data from contract agencies and courts). The Monitors shall respect the confidentiality of all information related to individually identifiable clients, subject to applicable law. Defendants shall take no adverse action against individuals or agencies because they shared information with the Monitors pursuant to this Final Order.
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7. The reports of the Monitors shall be public documents filed with the Court, except that any individually identifying information and any other confidential information protected from disclosure by law shall be redacted or otherwise removed from any public report.
8. The parties shall have access, through the Monitors, to all information made available to the Monitors, subject to the existing confidentiality order in effect in this case. The Monitors may protect the identity of confidential sources of any such information.
9. The Monitor may periodically meet privately with the Court concerning issues related to this case.
10. Defendants shall deliver to the Monitors all records, reports, data and information within 30 days of the Monitors’ request. The Monitors may grant extensions to due dates upon application in writing by the Defendants. If the Monitors decline to grant Defendants an extension, the Monitor shall do so in writing and the Defendants shall either produce the requested records, reports, data and information by the due date or appeal to the Court for an extension.
11. The Monitors shall submit bills for their compensation and reasonable expenses to the State, as well as file these bills under seal with the Court, on a monthly basis. The State shall approve and issue payment within 30 days of receipt of the monthly bill. If the State disputes a bill, Defendants shall file their objections with the Court no later than 15 days after receiving the bill and/or request additional clarifying information or documentation to the Monitors, with a copy served on Plaintiffs. The Monitors shall have 15 days in which to respond and to provide the additional information and/or documentation requested, with a copy served on Plaintiffs. If within 45 days of presentation of the Monitors’ bill there is still a dispute, the parties shall submit the dispute to the Court for resolution. At this time, Plaintiffs, Defendants, and the Monitors shall file a joint statement regarding the disputed payment.
12. The Monitors shall not intervene in the administrative management of either DFPS or any of its units and shall not direct the defendants or any of their subordinates to take or to refrain from taking any specific action to achieve compliance. The Monitors are not to consider matters that go beyond superintending compliance with this Court’s decree.
13. If at any point the Monitor can no longer serve, the Court shall appoint another Monitor, with input and recommendations from the outgoing Monitor.
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Case 2:11-cv-00084 Document 559 Filed in TXSD on 01/19/18 Page 116 of 116
V. CONCLUSION In its December 2015 Order, the Court found Texas’s foster care system was broken.
Over two-years later, the system remains broken and DFPS has demonstrated an unwillingness to take tangible steps to fix the broken system.
The Court ADOPTS in part the Special Master’s Implementation Plan and all Objections not specifically sustained above are OVERRULED. The State SHALL implement the policies and procedures herein to ensure that Texas’s PMC foster children are free from an unreasonable risk of harm.
The Court appoints Kevin Ryan and Deborah Fowler to monitor compliance with this order. The Monitors are ORDERED to file compliance reports on each policy outlined in this order due every SIX MONTHS with the first report due six months from the date of entry of this order. DFPS is ORDERED to cooperate fully with the Monitors to implement each plan without delay and to assist the Monitors in the creation of monitoring reports. The Court retains jurisdiction for a period of 3 years after full compliance as certified by the Monitors. Either party may apply to the Court during the term of monitoring to terminate supervision over one or more components of this Order if that party can show full compliance with that component and that further monitoring will not serve a purpose. Cf. Freeman v. Pitts, 503 U.S. 467, 489 (1992) (“A federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control.”). All monitoring costs are to be borne by Defendants.
SIGNED and ORDERED this 19th day of January, 2018.
___________________________________ Janis Graham Jack
Senior United States District Judge
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 Case 2:11-cv-00084 Document 716 Filed on 11/05/19 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

Page 1 of 2
United States District Court Southern District of Texas
ENTERED
November 05, 2019
David J. Bradley, Clerk

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
GREG ABBOTT, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:11-CV-84 § § § §

ORDER

After hearing in this matter, the Court makes the following orders:

No later than 12:00 o’clock noon on Wednesday, November 6, 2019, the Department of

Family and Protective Services of the State of Texas (“DFPS”) shall provide to the Monitors a

revised Court’s Exhibit 2 admitted in Court this date that is readable and follows a format of

question or request with an answer or response beneath. No further repeat of the format in this

exhibit.

By 5:00 o’clock p.m. on Friday, November 8, 2019, DFPS shall provide the Monitors

with a complete list of identified sexually aggressive PMC children and identified PMC sexually

abused children with a corresponding list of each assigned caregiver. Further, DFPS shall verify

to the Monitors that each caregiver has been notified of this status.

As a result of the Court confirming its prior order that all PMC children in placements of

more than six children (including adoptive and biological children) shall have instant 24-hour

awake supervision (reliance on alarms, videos and roving nighttime supervision is inadequate).

Roving is defined as a staff member that goes from building to building. The Monitors’ report

(D.E. 711) made clear that alarms were frequently not set, bathroom doors were not locked, and

reliance on technology in general was imperfect at best. No PMC children shall be removed or

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Case 2:11-cv-00084 Document 716 Filed on 11/05/19 in TXSD Page 2 of 2 discharged from a placement requiring 24-hour awake supervision as a direct result of this order without permission of the Court as recommended by the Monitors.
SIGNED and ORDERED this 5th day of November, 2019. ___________________________________ Janis Graham Jack Senior United States District Judge
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 Case 2:11-cv-00084 Document 718 Filed on 11/06/19 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

Page 1 of 2
United States District Court Southern District of Texas
ENTERED
November 06, 2019
David J. Bradley, Clerk

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
GREG ABBOTT, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:11-CV-84 § § § §

AMENDED ORDER

After hearing in this matter, the Court makes the following orders:

No later than 12:00 o’clock noon on Wednesday, November 6, 2019, the Department of

Family and Protective Services of the State of Texas (“DFPS”) shall provide to the Monitors a

revised Court’s Exhibit 2 admitted in Court this date that is readable and follows a format of

question or request with an answer or response beneath. The Court will not accept the format in

Court’s Exhibit 2.

By 5:00 o’clock p.m. on Friday, November 8, 2019, DFPS shall provide the Monitors

with a complete list of identified sexually aggressive PMC children and identified PMC sexually

abused children with a corresponding list of each assigned caregiver. Further, DFPS shall verify

to the Monitors that each caregiver has been notified of this status.

As a result of the Court confirming its prior order that all licensed placements with a

PMC child of more than six children (including adoptive and biological children) shall have

instant 24-hour awake supervision (reliance on alarms, videos and roving nighttime supervision

is inadequate). Roving is defined as a staff member that goes from building to building. The

Monitors’ report (D.E. 711) made clear that alarms were frequently not set, bathroom doors were

not locked, and reliance on technology in general was imperfect at best. No PMC children shall

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Case 2:11-cv-00084 Document 718 Filed on 11/06/19 in TXSD Page 2 of 2 be removed or discharged from a placement requiring 24-hour awake supervision as a direct result of this order without permission of the Court as recommended by the Monitors.
No later that 12:00 o’clock noon on Wednesday, November 6, 2019, DFPS is ordered to provide Plaintiffs and the Monitors with a copy of the contract with the catchment foster care redesign that includes Fort Worth.
SIGNED and ORDERED this 6th day of November, 2019. ___________________________________ Janis Graham Jack Senior United States District Judge
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 Case 2:11-cv-00084 Document 606 Filed on 11/20/18 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

Page 1 of 20
United States District Court Southern District of Texas
ENTERED
November 20, 2018
David J. Bradley, Clerk

M.D.; bnf STUKENBERG, et al,
Plaintiffs, VS.
GREG ABBOTT, et al,
Defendants.

§ § § § CIVIL ACTION NO. 2:11-CV-84 § § § §

ORDER

Consistent with the Fifth Circuit’s October 18, 2018 Opinion (hereinafter referred to as the “Opinion”), the Court enters the following Orders. All findings of fact and conclusions of law in this Court’s 2015 Memorandum Opinion and Verdict, (D.E. 368), and January 2018 Order, (D.E. 559), are hereby adopted and incorporated by reference, excluding reversed or remanded findings of fact and conclusions of law.
PROCEDURAL HISTORY The procedural history of this case is adequately described in this Court’s December 17, 2015 Memorandum Opinion and Verdict and January 2018 Order. Subsequent to the January 2018 Order, Defendants applied for a stay and appealed. The Fifth Circuit granted an administrative stay of the injunction, which was converted to a stay pending appeal on March 21, 2018. On October 18, 2018, the Fifth Circuit affirmed in part, reversed in part, and remanded for modification consistent with the Opinion. See generally, M. D. by Stukenberg v. Abbott, 907 F.3d 237 (5th Cir. 2018). The Fifth Circuit held this matter in abeyance for 60 days pending the disposition of the remand proceedings. (D.E. 601, att. 1). Upon the request of the Court, both parties submitted briefs addressing issues on remand and proposed remedies. (D.E. 603; D.E. 604).

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INJUNCTION
The Court therefore ENJOINS the Defendants from placing children in permanent
management conservatorship (“PMC”) in placements that create an unreasonable risk of serious harm.1 The Defendants SHALL implement the remedies herein to ensure that Texas’s PMC
foster children are free from an unreasonable risk of serious harm.
Validated Orders
The Opinion validated the following remedies in aid of injunctive relief. M. D. by
Stukenberg, 907 F.3d at 273-83.
Therefore, it is ORDERED that:
1. Within 60 days, the Texas Department of Family Protective Services (“DFPS”) shall ensure statewide implementation of the CPS Professional Development (“CPD”) training model, which DFPS began to implement in November 2015.
2. Within 60 days, DFPS shall ensure statewide implementation of graduated caseloads for newly hired CVS caseworkers, and all other newly hired staff with the responsibility for primary case management services to children in the PMC class, whether employed by a public or private entity.
3. DFPS shall ensure that reported allegations of child abuse and neglect involving children in the PMC class are investigated; commenced and completed on time consistent with the Court’s Order; and conducted taking into account at all times the child’s safety needs. The Monitors shall periodically review the statewide system for appropriately receiving, screening, and investigating reports of abuse and neglect involving children in the PMC class to ensure the investigations of all reports are commenced and completed on time consistent with this Order and conducted taking into account at all times the child’s safety needs.
4. Within 60 days, DFPS shall ensure that all caseworkers and caregivers are trained to recognize and report sexual abuse, including child-on-child sexual abuse.
1 The Opinion included psychological harm in its definition of serious harm. M. D. by Stukenberg, 907 F.3d at 250 (“We agree that plaintiffs’ substantive right to ‘personal security and reasonably safe living conditions’ includes the very limited right to be free from severe psychological abuse and emotional trauma—both of which are often inextricably related to some form of physical mistreatment or deprivation.”).
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5. Within 60 days and ongoing thereafter, DFPS shall, in accordance with existing DFPS policies and administrative rules, initiate Priority One child abuse and neglect investigations involving children in the PMC class within 24 hours of intake. (A Priority One is by current policy assigned to an intake in which the children appear to face a safety threat of abuse or neglect that could result in death or serious harm.)
6. Within 60 days and ongoing thereafter, DFPS shall, in accordance with existing DFPS policies and administrative rules, initiate Priority Two child abuse and neglect investigations involving children in the PMC class within 72 hours of intake. (A Priority Two is assigned by current policy to any CPS intake in which the children appear to face a safety threat that could result in substantial harm.)
7. Within 60 days and ongoing thereafter, DFPS shall, in accordance with DFPS policies and administrative rules, complete required initial face-to-face contact with the alleged child victim(s) in Priority One child abuse and neglect investigations involving PMC children as soon as possible but no later than 24 hours after intake.
8. Within 60 days and ongoing thereafter, DFPS shall, in accordance with DFPS policies and administrative rules, complete required initial face-to-face contact with the alleged child victim(s) in Priority Two child abuse and neglect investigations involving PMC children as soon as possible but no later than 72 hours after intake.
9. Within 60 days and ongoing thereafter, DFPS must track and report all child abuse and neglect investigations that are not initiated on time with face-to-face contacts with children in the PMC class, factoring in and reporting to the Monitors quarterly on all authorized and approved extensions to the deadline required for initial face-to-face contacts for child abuse and neglect investigations.
10. Within 60 days, DFPS shall, in accordance with DFPS policies and administrative rules, complete Priority One and Priority Two child abuse and neglect investigations that involve children in the PMC class within 30 days of intake, unless an extension has been approved for good cause and documented in the investigative record. If an investigation has been extended more than once, all extensions for good cause must be documented in the investigative record.
11. Within 60 days and ongoing thereafter, DFPS must track and report monthly all child abuse and neglect investigations involving children in the PMC class that are not completed on time according to this Order. Approved extensions to the standard closure timeframe, and the reason for the extension, must be documented and tracked. If an investigation has been extended more than once, all extensions for good cause must be documented in the investigative record.
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12. Effective immediately, the State of Texas shall ensure the Residential Child Care Licensing (“RCCL”)2 investigators, and any successor staff, observe or interview the alleged child victims in Priority One child abuse or neglect investigations within 24 hours of intake.
13. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, observe or interview the alleged child victims in Priority Two child abuse or neglect investigations within 72 hours of intake.
14. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete Priority One and Priority Two child abuse and neglect investigations within 30 days of intake, consistent with DFPS policy.
15. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete Priority Three, Priority Four and Priority Five investigations within 60 days of intake, consistent with DFPS policy.
16. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete and submit documentation in Priority One and Priority Two investigations on the same day the investigation is completed.
17. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete and submit documentation in Priority Three, Priority Four and Priority Five investigations within 60 days of intake.
18. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, finalize and mail notification letters to the referent and provider(s) in Priority One and Priority Two investigations within five days of closing a child abuse and neglect investigation or completing a standards investigation.
19. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, finalize and mail notification letters to the referent(s) and provider(s) in Priority Three, Priority Four and Priority Five investigations within 60 days of intake.
20. Within 120 days, RCCL, and/or any successor entity charged with inspections of child care placements, will identify, track and address concerns at facilities that show a pattern of contract or policy violations. Such facilities must be subject to heightened monitoring
2 As a result of legislation passed during the 2017 session of the Texas Legislature, the investigation responsibilities remain with DFPS, which is now a stand-alone agency. The licensing and regulatory responsibilities transferred to the Texas Health and Human Services Commission. See H. B. 5, 85th Leg. (Tx. 2017); S.B. 11, 85th Leg. (Tx. 2017).
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by DFPS and any successor entity charged with inspections of child care placements and subject to more frequent inspections, corrective actions and, as appropriate, other remedial actions under DFPS’ enforcement framework.
21. Effective immediately, RCCL and/or its successor entity, shall have the right to directly suspend or revoke the license of a placement in order to protect children in the PMC class.
22. Effective immediately, RCCL, and any successor entity charged with inspections of child care placements, must consider during the placement inspection all referrals of, and in addition all confirmed findings of, child abuse/neglect and all confirmed findings of corporal punishment occurring in the placements. During inspections, RCCL, and any successor entity charged with inspections of child care placements, must monitor placement agencies’ adherence to obligations to report suspected child abuse/neglect. When RCCL, and any successor entity charged with inspections of child care placements, discovers a lapse in reporting, it shall refer the matter to DFPS, which shall immediately investigate to determine appropriate corrective action, up to and including termination or modification of a contract.
23. Within 60 days, DFPS shall implement within the child’s electronic case record a profile characteristic option for caseworkers or supervisors to designate PMC and TMC children as “sexually abused” in the record if the child has been confirmed to be sexually abused by an adult or another youth.
24. Within 60 days, DFPS shall document in each child’s records all confirmed allegations of sexual abuse in which the child is the victim.
25. Effective immediately, all of a child’s caregivers must be apprised of confirmed allegations at each present and subsequent placement.
26. Effective immediately, if a child has been sexually abused by an adult or another youth, DFPS must ensure all information about sexual abuse is reflected in the child’s placement summary form, and common application for placement.
27. Effective immediately, all of the child’s caregivers must be apprised of confirmed allegations of sexual abuse of the child at each present and subsequent placement.
28. Effective immediately, DFPS shall ensure a child’s electronic case record documents “child sexual aggression” and “sexual behavior problem” through the profile characteristic option when a youth has sexually abused another child or is at high risk for perpetrating sexual assault.
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29. Effective immediately, if sexually aggressive behavior is identified from a child, DFPS shall also ensure the information is reflected in the child’s placement summary form, and common application for placement.
30. Effective immediately, DFPS must also document in each child’s records all confirmed allegations of sexual abuse involving the child as the aggressor.
31. Effective immediately, all of the child’s caregivers must be apprised at each present and subsequent placement of confirmed allegations of sexual abuse involving the PMC child as the aggressor.
32. Within 90 days of this Order, DFPS shall create a clear policy on what constitutes child on child sexual abuse. Within 6 months of the Court’s Order, DFPS shall ensure that all staff who are responsible for making the determinations on what constitutes child on child sexual abuse are trained on the policy.
33. Within four months of this Order, DFPS shall submit to the Court a plan for an integrated computer system, with specific timeframes, that contains each PMC child’s complete records, including but not limited to a complete migration of all medical, dental, educational, placement recommendations, court records, mental health and caseworker records. The mental health, dental and medical information shall include all visits to the provider with detailed examinations, diagnoses, test results, immunizations, medications (including the reasons for each), history of abuse, treatment plans, and any other information necessary for the safety of the children. DFPS shall have this system fully functional within one year of the Order date.
34. The DFPS plan shall ensure that DFPS caseworkers and supervisors serving PMC children, as well as CASA staff and volunteers, and any public or private staff assigned to oversee PMC children’s care, have access to an integrated, current, complete and accurate case record for PMC children on their caseloads, consistent with prevailing state and federal law, including, for example, the child’s current legal status and permanency goal; the child's Transition Plan (where applicable); the child’s placement information and all safety-related and licensure/verification information about the child’s placement, including investigation and inspection reports, enforcement actions and internal reviews conducted by CPAs; the child’s historic and current caseworker(s) and supervisor(s), with corresponding contact information; the child’s complete medical, dental, educational and mental health information and records.3
3 The Opinion stated that the Court’s order to improve “access to comprehensive medical information, mental health records, and placement history for individual children would assist RCCL in making an informed assessment about abuse allegations,” was proper. M. D. by Stukenberg, 907 F.3d at 282. However, it listed two identical provisions as valid. Id. In their filings, both Plaintiffs and Defendants believed that the Opinion intended to validate provisions
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35. Effective immediately, DFPS shall track caseloads on a child-only basis, as ordered by the Court in December 2015. Effective immediately, DFPS shall report to the Monitors, on a quarterly basis, caseloads for all staff, including supervisors, who provide primary case management services to children in the PMC class, whether employed by a public or private entity, and whether full-time or part-time. Data reports shall show all staff who provide case management services to children in the PMC class and their caseloads. In addition, DFPS’s reporting shall include the number and percent of staff with caseloads within, below and over the DFPS established guideline, by office, by county, by agency (if private) and statewide. Reports will include the identification number and location of individual staff and the number of PMC children and, if any, TMC children to whom they provide case management. Caseloads for staff, as defined above, who spend part-time in caseload carrying functions and part-time in other functions must be reported accordingly.4
36. Within 30 days of the Court’s Order, DFPS shall present the Court with a plan to address and remediate missing and nonexistent medical and mental health care records, consistent with the American Academy of Pediatrics “Fostering Health: Healthcare for Children and Adolescent in Foster Care.”5
37. Within 60 days, DFPS shall ensure that all abuse and neglect referrals regarding a foster home where any PMC child is placed, which are not referred for a child abuse and neglect investigation, are shared with the PMC child’s caseworker and the caseworker’s supervisor within 48 hours of DFPS receiving the referral. Upon receipt of the information, the PMC child’s caseworker will review the referral history of the home and assess if there are any concerns for the child’s safety or well-being, and document the same in the child’s electronic case record.
Modified Orders
In aid of injunctive relief for the General Class the Court enters the following:
granting access to the integrated computer system, rather than a duplicative provision, especially as the Opinion did not address the access provision. (D.E. 559 at 25; D.E. 604 at 18; D.E. 603 at 6). 4 The reference to reporting “the number and percent of staff with caseloads within, below and over the range of 14 to 17 children” has been removed from the validated provision per the Opinion. 5 The Opinion did not address this Provision, however it did explicitly validate the integrated computer system tracking the “mental health, dental and medical information” of all PMC children. Supra Provision 33. Such a system would not be effective for preventing an unreasonable risk of serious harm if medical records were missing or nonexistent.
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A. Remedies Applicable to the General Class
1. Within 60 days of the Court’s Order, DFPS, in consultation with and under supervision of the Monitors, shall propose a workload study to generate reliable data regarding current caseloads and to determine how many children caseworkers are able to safely carry, for the establishment of appropriate guidelines for caseload ranges. The proposal shall include, but will not be limited to: the sampling criteria, timeframes, protocols, survey questions, pool sample, interpretation models, and the questions asked during the study. DFPS shall file this proposal with the Court within 60 days of the Court’s Order, and the Court shall convene a hearing to review the proposal.6
DFPS’s past practices highlight the need for oversight in conducting a new workload
study. “DFPS had not performed a comprehensive workload study in over a decade.” M. D. by
Stukenberg, 907 F.3d at 261. When finally ordered by the Court to perform a workload study,
DFPS’s study was woefully inadequate:
DFPS provided the Special Masters with a limited workload survey conducted from August 2015 to March 2016 which purported only to estimate how much time was actually spent on casework during that time period. It made no attempt to quantify how much time caseworkers should be spending on casework or how many cases a caseworker could safely manage. Despite being reprimanded by the district court in 2015 for its inclusion of [“I See You”] workers in its workload estimates, DFPS again included [“I See You”] workers in its 2016 study.
Id.
By including the “I See You” workers in its study, DFPS improperly elevated the “I See You”
workers to a position comparable with the primary caseworkers in DFPS’s analysis, a thoroughly
inappropriate approach given that “I See You” workers are clearly not equipped to be
caseworkers. Id. at 274 n. 47. DFPS even created additional non-human workers out of
6 Monitor oversight is also necessary because of DFPS’s failure to conduct these workload studies. Except for the incomplete workload study performed from 2015 to 2016, DFPS has not conducted its own workload study in nearly two decades, a fact highlighted by the Sunset Commission in 2014. (D.E. 368 at 193-94). For all prior studies conducted by DFPS, it relied on third parties to perform the actual studies. This was the case with Casey Family Programs, a private third-party who DFPS contracted to perform internal reviews, the Texas Sunset Advisory Commission, a government group outside the DFPS required by the Texas Legislature to issue a report on different Texas agencies, and The Stephen Group, a national consulting firm that DFPS hired to conduct an operational review. (D.E. 23-24). By relying purely on assessments conducted by third parties and failing to ever fully review their own workload internally, DFPS has demonstrated a lack of expertise and resources to properly conduct these studies, thus requiring this Court’s reliance on the Monitors’ oversight.
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overtime. Id. at 257. Further, the study only estimated how much time was spent on casework and made no attempt to quantify how much time caseworkers should spend on casework, nor how many children a caseworker safely can manage. Id. at 256. Oversight ensures that DFPS will appropriately conduct this Court-ordered study.
2. Within 120 days of the Court’s Order, DFPS shall present the completed workload study to the Court. DFPS shall include as a feature of their workload study submission to the Court, how many cases, on average, caseworkers are able to safely carry, and the data and information upon which that determination is based, for the establishment of appropriate guidelines for caseload ranges.
3. Within 150 days of the Court’s Order, DFPS shall establish internal caseload standards based on the findings of the DFPS workload study, and subject to the Court’s approval. The caseload standards that DFPS will establish shall ensure a flexible method of distributing caseloads that takes into account the following non-exhaustive criteria: the complexity of the cases; travel distances; language barriers; and the experience of the caseworker. In the policy established by DFPS, caseloads for staff shall be prorated for those who are less than full-time. Additionally, caseloads for staff who spend part-time in the work described by the caseload standard and part-time in other functions shall be prorated accordingly.
Once the workload study is complete, DFPS shall establish internal guidelines and standards for caseloads. The Opinion established that “it is reasonable for an injunctive remedy to require the agency to generate reliable data regarding current caseloads and to establish internal guidelines that identify a flexible range of caseloads that the agency determines caseworkers can safely manage.” M. D. by Stukenberg, 907 F.3d at 273. The Opinion explicitly supports this remedy: “the fact that caseworkers’ workload capacities will vary, on an individual basis, according to the types of cases a caseworker is assigned does not obviate the need for general guidelines that identify an appropriate caseload range.” Id. at 262. These standards and guidelines would still “strike at the heart of the workload problem” without raising concerns that the Court is using “too blunt a remedy for a complex problem.” Id. at 274. Accordingly, “DFPS
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absolutely should determine how many cases, on average, caseworkers are able to safely carry.” Id. Further DFPS must quantify how much time caseworkers should spend on casework and how many children a caseworker can safely manage. Based on its determination, DFPS should establish generally applicable, internal caseload standards.” Id. Defendants acknowledge this language in their filing addressing the Opinion. (D.E. 604 at 4).
4. Within 180 days of the Court’s Order, DFPS shall ensure that the generally applicable, internal caseload standards that are established are utilized to serve as guidance for supervisors who are handling caseload distribution and that its hiring goals for all staff are informed by the generally applicable, internal caseload standards that are established. This order shall be applicable to all DFPS supervisors, as well as anyone employed by private entities who is charged by DFPS to provide case management services to children in the General class.
5. Within 180 days of this Order, all required monthly face-to-face meetings pursuant DFPS and federal requirements shall be conducted only by primary caseworkers.7
DFPS shall ensure all face-to-face meetings with PMC children are conducted by primary caseworkers. Using “I See You” workers for these meetings does not protect PMC children from an unreasonable risk of serious harm as “I See You” workers do not address the actual needs of the children in the General Class:
[“I See You” workers] are not required to follow up on a child’s needs, and they are not involved in any aspect of a child’s permanency plan outside of providing relevant information to the child’s primary caseworker. [“I See You”] workers’ primary responsibility is to see the child and confirm that the child “is still there.” See M. D. by Stukenberg, 907 F.3d at 245. Further, “I See You” workers do not have the time or capacity to fill the role of primary caseworkers in monthly face-to-face meetings:
7 The Opinion invalidated the provision requiring DFPS to incorporate the “I See You” workers onto the primary team of caseworkers. In doing so, the Opinion acknowledged this Court’s distinction between the role of primary and secondary caseworkers, including “I See You” workers, and the fact that these secondary caseworkers were inappropriate substitutes for primary caseworkers. M. D. by Stukenberg, 907 F.3d at 274 n. 47.
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[It is] a wonder [“I See You”] workers have time to show up everywhere they need to be on a given day and check an attendance box. It may be the case that [“I See You”] workers increase the odds that a foster child will encounter a “live” individual associated with DFPS on a semi-regular basis, but they are by no means an adequate or “reasonable” substitute for primary caseworkers. M. D. by Stukenberg, 907 F.3d at 263. The Opinion stated that: “DFPS often uses secondary workers to fill” the gap in primary case worker face-to-face meetings even though “[“I See You”] workers typically carry a large caseload, and their responsibilities are significantly more limited than are those of primary
caseworkers.” Id. at 245. Further, the testimony at trial “strongly suggests that [“I See You”] visits are perfunctory and that the information they generate from the foster child is often superficial and unhelpful.” Id. “Children do not feel comfortable sharing their problems with their revolving roster of [“I See You”] workers who often fail to meet with them in private as required by DFPS policy.” Id. In summary, the Opinion makes it clear that “I See You” workers cannot substitute as primary caseworkers and cannot provide the type of attention needed for
monthly face-to-face meetings or gather the necessary information for these meetings, thereby nullifying the purpose of these meetings under DFPS and federal requirements.
6. Within 30 days of the Court’s Order, DFPS shall ensure that caseworkers provide children with the appropriate point of contact for reporting issues relating to abuse or neglect. In complying with this order, DFPS shall ensure that children in the General Class are apprised by their primary caseworkers of the appropriate point of contact for reporting issues, and appropriate methods of contact, to report abuse and neglect. This shall include a review of the Foster Care Bill of Rights and the number for the Texas Health and Human Services Ombudsman. Upon receipt of the information, the PMC child’s caseworker will review the referral history of the home and assess if there are any concerns for the child’s safety or well-being and document the same in the child’s electronic case record.
DFPS shall rectify the unclear lines of communication for reporting abuse that arise from the rapid turnover of caseworkers through a child’s duration in the foster care system. The
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Opinion specifically stated that: “[t]o the extent that the [C]ourt is worried about underreporting, this can be remedied by mandating that caseworkers provide children with the appropriate point of contact for reporting issues.” M. D. by Stukenberg, 907 F.3d at 279. Further, the Opinion held that a substantively similar injunctive provision was valid. Id. There is still a concern with underreporting since systemic DFPS issues likely lead to underreporting of abuse, (D.E. 368, at 205-06), accordingly, this remedy is needed to protect the children from an unreasonable risk of serious harm. By including this injunctive provision, the Court is closely following the process approved by the Opinion while ensuring that clear avenues for reporting abuse are available to these children.
7. The Defendants shall immediately cease placing8 PMC children in placements housing more than 6 children, inclusive of all foster, biological, and adoptive children, that lack continuous 24-hour awake-night supervision. The continuous 24-hour awake-night supervision shall be designed to alleviate any unreasonable risk of serious harm.
8. Within 60 days of this Court’s Order, and on a quarterly basis thereafter, DFPS shall provide a detailed update and verification to the Monitors concerning the State’s providing continuous 24-hour awake-night supervision in the operation of placements that house more than 6 children, inclusive of all foster, biological, and adoptive children. The Opinion narrowly construed the Court’s initial grant of injunctive relief and denied
the stay of the continuous 24-hour supervision requirement for PMC children placed in a home with 6 or more children. M. D. by Stukenberg, 907 F.3d at 270. In issuing this Order, the Court shall ensure that the continuous 24-hour awake-night supervision stays in place to protect the members of the General Class in placements with a large number of children, and to ensure that the system of continuous 24-hour awake-night supervision is designed and implemented to protect the General Class. B. Remedies Applicable to the Licensed Foster Care Subclass
8 “Placing” and “placement” shall be construed to encompass all existing placements and future placements.
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1. Within 60 days of the Court's Order, DFPS, in consultation with and under the supervision of the Monitors, shall propose a workload study to: generate reliable data regarding current RCCL, or successor entity, investigation caseloads and to determine how much time RCCL investigators, or successor staff, need to adequately investigate allegations of child maltreatment, in order to inform the establishment of appropriate guidelines for caseload ranges; and to generate reliable data regarding current RCCL inspector, or successor staff, caseloads and to determine how much time RCCL inspectors, or successor staff, need to adequately and safely perform their prescribed duties, in order to inform the establishment of appropriate guidelines for caseload ranges. The proposal shall include, but will not be limited to: the sampling criteria, timeframes, protocols, survey questions, pool sample, interpretation models, and the questions asked during the study. DFPS shall file this proposal with the Court within 60 days of the Court’s Order, and the Court shall convene a hearing to review the proposal.
The Monitors shall oversee DFPS’s RCCL investigator workload study to ensure DFPS
has accurate data when establishing RCCL investigation guidelines and standards. The Opinion
stated that “it would be reasonable for the court to require a comprehensive workload study” for
RCCL investigators. M. D. by Stukenberg, 907 F.3d at 279. DFPS previously failed to comply
with an order requiring a RCCL investigator work study. In December 2015, the Court ordered
DFPS to complete a “Workload Study to determine the time required for investigators and
inspectors to adequately perform their tasks.” (D.E. 368, Page 251). In January 2017, the Court
found “that DFPS has not commenced, as previously ordered, a workload study of RCCL
investigators and inspectors.” (D.E. 500, Page 23; D.E. 546, Page 35).
2. Within 120 days of the Court’s Order, DFPS shall present the completed workload study to the Court. DFPS shall include as a feature of their workload study submission to the Court, how many cases, on average, RCCL inspectors and investigators, or any successor staff, are able to safely carry, and the data and information upon which that determination is based, for the establishment of appropriate guidelines for caseload ranges.
3. Within 150 days of the Court’s Order, DFPS, in consultation with the Monitors, shall establish internal guidelines for caseload ranges that RCCL investigators, or any successor staff, can safely manage based on the findings of the RCCL investigator workload study, including time spent in actual investigations. In the standard established
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by DFPS, caseloads for staff shall be prorated for those who are less than full-time. Additionally, caseloads for staff who spend part-time in the work described by the RCCL, or successor entity, standard and part-time in other functions shall be prorated accordingly. Maintaining a capable RCCL investigatory arm is vital for protecting the children under DFPS’s care. As then RCCL Director Shaw stated: “If you don’t have a good investigative system, you can’t have a good [child welfare] system.” (D.E. 304 at 20). Given the “alarmingly high investigatory error rate” for RCCL investigations, 75%, M. D. by Stukenberg, 907 F.3d at 265, it is clear that a “good investigative system” does not currently exists. An injunctive measure is necessary to cure the overburdened RCCL workload. Thus, the Court includes this provision, in order to cure the investigative failure while following the Opinion’s guidance. 4. Within 180 days of this Order, DFPS shall ensure that the internal guidelines for caseload ranges and investigative timelines are based on the determination of the caseloads RCCL investigators, or any successor staff, can safely manage are utilized to serve as guidance for supervisors who are handling caseload distribution and that these guidelines inform DFPS hiring goals for all RCCL inspectors and investigators, or successor staff. RCCL investigators and inspectors are plagued by hiring issues. Therefore, the RCCL workload studies should drive RCCL’s hiring guidelines to mitigate its staggering 41.2% yearly turnover rate. (D.E. 368 at 210). Additional issues with these investigations can be traced to hiring, such as variable caseload weights, as can be seen in the northeast district where there is a much higher median of average daily caseloads due to the smaller number of RCCL investigators. (D.E. 546 at 36-37; D.E. 546, app. 13). Structured changes to DFPS’s RCCL hiring goals are particularly needed, as DFPS currently does not base its hiring requests on any quantifiable needs. In the 2016-17 funding request, “DFPS asked for an additional 20 inspectors, 20 investigators, 9 supervisors, 1 program manager, and 1 state office program specialist.” (D.E. 368 at 211). However, without a
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Case 2:11-cv-00084 Document 606 Filed on 11/20/18 in TXSD Page 15 of 20
workload study it is unclear how DFPS developed these numbers. DFPS claims that staffing requests would return the workforce to 2009 levels, but returning to 2009 levels would do little to resolve the unreasonable risk of serious harm facing the General Class due to the growth of the General Class population under DFPS’s care. Further, simply returning to 2009 staffing levels would not bring RCCL workloads in line with any imaginable guideline derived from a reasonable workload study. These types of blind requests, divorced from any meaningful metrics, are not an effective method for resolving DFPS’s current issues, and an intervention is necessary to rectify this irrational process.
5. Effective immediately, DFPS shall ensure that RCCL, or any successor entity, promptly communicates allegations of abuse to the child’s primary caseworker. In complying with this order, DFPS shall ensure that it maintains a system to receive, screen, and assign for investigation, reports of maltreatment of children in the General Class, taking into account at all times the safety needs of children. At a minimum, a child’s primary caseworker shall be informed of any allegations of
abuse as the natural extension of the State’s parental surrogacy over the child. Prompt notification of the primary caseworker may seem like a simple and obvious requirement, but the record shows that allegations of abuse are not being routed to the primary caseworker. The Opinion took issue with communication provisions that add an additional administrative burden, M. D. by Stukenberg, 907 F.3d at 274, but the primary caseworker should already be responsible for knowing the details of the children in her care, so ensuring that these allegations are communicated does not implicate those concerns. In the case of P.V., it is not clear if her primary caseworker was ever informed of the sexual abuse she reported to the central DFPS phone line, as neither the CPA or caseworker followed through with any investigation or report. Id. at 15.
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Orders Appointing Monitors
Pursuant to its inherent authority and Federal Rule of Civil Procedure 53, the Court
appoints Monitors to supervise compliance with its decree.
Therefore, it is ORDERED that:
A. Monitoring Appointment Provisions in the January 15, 2018 Order9
1. The Court hereby appoints Kevin Ryan and Deborah Fowler as the Monitors of this Order, responsible to assess and report on Defendants’ compliance with the terms of this Order. The Monitors shall be responsible solely to the Court but shall work actively with the parties to ensure the effective and prompt implementation of this Order. The Monitors shall proceed with all reasonable diligence and shall commence their duties as quickly as practicable. The Monitors shall serve until the Court determines, upon Defendants’ application, that the Monitors are no longer necessary.10
2. Neither party, nor any employee or agent of either party, shall have any supervisory authority over the Monitors’ activities, reports, findings, or recommendations. The retention of the Monitors shall be conducted solely pursuant to the procedures set forth in this Order and shall not be governed by any formal or legal procurement requirements. The Monitors shall have a budget and staff sufficient to allow the Monitors to carry out the responsibilities set forth in this Order, and may contract with such experts or consultants as the Monitors may deem appropriate, in consultation with the Court. The Monitors, and any experts or consultants hired by the Monitors, may initiate and receive ex parte communications with the parties, and with the Court.
3. The Monitors’ duties shall include to independently verify data reports and statistics provided pursuant to this Order. The Monitors shall have the authority to conduct, or cause to be conducted, such case record reviews, qualitative reviews, and audits as the Monitors reasonably deem necessary. In order to avoid duplication, DFPS shall provide the Monitors with copies of all state-issued data reports regarding topics covered by this Order. Notwithstanding the existence of state data, data analysis or reports, the Monitors shall have the authority to prepare new reports on all terms of this Order to the extent the Monitors deem necessary.
9 These Provisions were not challenged by the Opinion or by either party in their filings. See generally, M. D. by Stukenberg, 907 F.3d 237; (D.E. 603; D.E. 604). 10 The Court’s previous Order of Appointment, (D.E. 379), on March 21, 2016 naming Kevin Ryan as Special Master is superseded by this Order.
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4. The Monitors shall periodically conduct case record and qualitative reviews to monitor and evaluate the Defendants’ performance with respect to this Order. The Monitors shall also review all plans and documents to be developed and produced by Defendants pursuant to this Order and report on Defendants’ compliance in implementing the terms of this Order. The Monitors shall take into account the timeliness, appropriateness, and quality of the Defendants’ performance with respect to the terms of this Order.
5. The Monitors shall provide a written report to the Court every six months. The Monitors’ reports shall set forth whether the Defendants have met the requirements of this Order. In addition, the Monitors’ reports shall set forth the steps taken by Defendants, and the reasonableness of those efforts; the quality of the work done by Defendants in carrying out those steps; and the extent to which that work is producing the intended effects and/or the likelihood that the work will produce the intended effects.
6. The Monitors shall have free and complete access to records maintained by Defendants, its divisions and any successor agencies or divisions, and by its private agency partners. The Monitors shall also have free and complete access to the staff of DFPS; its divisions and any successor agencies or divisions; persons within the executive branch; private agency partners; PMC children in the care of DFPS and of private agencies; and other individuals that the Monitors deem relevant to their work. DFPS shall direct all employees and contract providers to cooperate fully with the Monitors and shall assist the Monitors in gaining free access to other stakeholders in the child welfare system. Defendants shall provide the Monitors with free and, upon request, private access to all individuals within DFPS and persons within the Executive Branch of Texas State government, as the Monitors choose; to assist the Monitors in gaining access to other stakeholders in the child welfare system (including but not limited to the staff of contract agencies); and to provide the Monitors with free access to all documents, data, and premises it deems relevant to their work (including but not limited to documents and data from contract agencies and courts). The Monitors shall respect the confidentiality of all information related to individually identifiable clients, subject to applicable law. Defendants shall take no adverse action against individuals or agencies because they shared information with the Monitors pursuant to this Order.
7. The reports of the Monitors shall be public documents filed with the Court, except that any individually identifying information and any other confidential information protected from disclosure by law shall be redacted or otherwise removed from any public report.
8. The parties shall have access, through the Monitors, to all information made available to the Monitors, subject to the existing confidentiality order in effect in this case. The Monitors may protect the identity of confidential sources of any such information.
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9. The Monitors may periodically meet privately with the Court concerning issues related to this case.
10. Defendants shall deliver to the Monitors all records, reports, data and information within 30 days of the Monitors’ request. The Monitors may grant extensions to due dates upon application in writing by the Defendants. If the Monitors decline to grant Defendants an extension, the Monitor shall do so in writing and the Defendants shall either produce the requested records, reports, data and information by the due date or appeal to the Court for an extension.
11. The Monitors shall submit bills for their compensation and reasonable expenses to the State, as well as file these bills under seal with the Court, on a monthly basis. The State shall approve and issue payment within 30 days of receipt of the monthly bill. If the State disputes a bill, Defendants shall file their objections with the Court no later than 15 days after receiving the bill and/or request additional clarifying information or documentation to the Monitors, with a copy served on Plaintiffs. The Monitors shall have 15 days in which to respond and to provide the additional information and/or documentation requested, with a copy served on Plaintiffs. If within 45 days of presentation of the Monitors’ bill there is still a dispute, the parties shall submit the dispute to the Court for resolution. At this time, Plaintiffs, Defendants, and the Monitors shall file a joint statement regarding the disputed payment.
12. The Monitors shall not intervene in the administrative management of either DFPS or any of its units and shall not direct the defendants or any of their subordinates to take or to refrain from taking any specific action to achieve compliance. The Monitors are not to consider matters that go beyond superintending compliance with this Court’s decree.
13. If at any point the Monitor can no longer serve, the Court shall appoint another Monitor, with input and recommendations from the outgoing Monitor.
B. Additional Monitoring Appointment Provisions11
1. Effective immediately, Defendants shall provide the Monitors, their staff and consultants with unrestricted, routine and ongoing remote access to the electronic data information systems used by Defendants to serve children in the PMC class, including CLASS; IMPACT; the Star Health Passport; the system used for tracking referrals and dispositions of abuse and neglect; the system used to track caseloads for staff; any and all successor systems to the foregoing; and the training and guidance necessary for the Monitors, their staff and consultants to review records within these systems. Defendants shall provide the Monitors, their staff and consultants with unrestricted, routine, and
11 These provisions are in addition to the Monitoring Appointment Provisions in the January 2018 Order.
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ongoing access to electronic systems used by Defendants to train caseworkers and test their knowledge.12
2. Defendants will immediately supply the Monitors raw data relevant to the 2015-2016 workstudy conducted by DFPS, including but not limited to: the sampling criteria, protocols, survey questions, pool sample, interpretation models, and the questions asked during the study. Defendants will supply the Monitors with all available raw data relevant to all previous third-party studies13 of DFPS.
3. The Monitors shall provide the Court with a schedule for the hourly compensation of the Monitors, their staff and consultants. The Defendants shall pay the Monitors’ compensation, the compensation of the Monitors’ staff and consultants and reasonable expenses. Reasonable expenses include, but are not limited to, transcriptions, photocopy fees, electronic document storage fees, teleconference services, travel and attendant expenses, and mail and delivery costs. Reasonable expenses are not included in the Monitors’ hourly compensation. The Monitors may submit an application to the Court to increase the compensation, should circumstances so require. All parties shall have the right to file with the Court a written objection to the Monitors’ compensation schedule within 5 days from submission.
CONCLUSION
Defendants are ORDERED to cooperate fully with the Monitors to implement each
provision without delay and to assist the Monitors in creation of the Monitoring reports. The
Court retains jurisdiction for a period of three years after full compliance as certified by the
Monitors. Either party may apply to the Court during the term of the monitoring to terminate
supervision over one or more components of this Order if that party can show full compliance
with that component and that further monitoring will not serve a purpose. Cf. Freeman v. Pitts,
503 U.S. 467, 489 (1992) (“A federal court in a school desegregation case has the discretion to
12 These requirements are necessary to allow the Monitors to efficiently carry out their duties and much less expensive than continuous round-trip flights to Austin. Previously, the Special Masters were required to travel to Austin and access this data under the direct supervision of DFPS. 13 Including but not limited to: the 2014 operational review of DFPS and SPC conducted by The Stephen Group; the 2014 report on DFPS waste, duplication and inefficiency by the Texas Sunset Advisory Commission; the 2004 Texas Comptroller Report titled Forgotten Children, all internal reviews and assessments relevant to workloads conducted by the Casey Family Programs; the 2010 DFPS review conducted by the Texas Adoption Review Committee.
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Case 2:11-cv-00084 Document 606 Filed on 11/20/18 in TXSD Page 20 of 20 order an incremental or partial withdrawal of its supervision and control.”). All monitoring costs are borne by Defendants.
SIGNED and ORDERED this 20th day of November, 2018. ___________________________________ Janis Graham Jack Senior United States District Judge
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 Case: 18-40057 Document: 00514688349 Page: 1 Date Filed: 10/18/2018 Case 2:11-cv-00084 Document 601 Filed on 10/18/18 in TXSD Page 1 of 103

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 18-40057

October 18, 2018 Lyle W. Cayce

Clerk

M. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B. Morrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer Talley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J. Ricker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela C. Vasquez; A. R., by next friend Tom McKenzie, individually and on behalf of all other similarly situated,

Plaintiffs - Appellees

v.

GREG ABBOTT, in his official capacity as Governor of the State of Texas; COURTNEY PHILLIPS, in her official capacity as Executive Commissioner of the Health and Human Services Commission of Texas; HENRY WHITMAN, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,

Defendants - Appellants

Appeal from the United States District Court for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge:
Plaintiffs, a certified class of minor children in the Permanent Managing Conservatorship of the Department of Family Protective Services (“DFPS”) in Texas, filed suit under 42 U.S.C. § 1983 seeking injunctive relief against the Governor of Texas, the Executive Commissioner of the Texas Health and

Case: 18-40057 Document: 00514688349 Page: 2 Date Filed: 10/18/2018 Case 2:11-cv-00084 Document 601 Filed on 10/18/18 in TXSD Page 2 of 103
No. 18-40057 Human Services Commission, and the Commissioner of DFPS (collectively “the State”). They allege that the State’s maintenance of its foster care system exposes them to a serious risk of abuse, neglect, and harm to their physical and psychological well-being. The district court held that the State’s policies and practices violated plaintiffs’ constitutional right to be free from an unreasonable risk of harm, and granted plaintiffs a permanent injunction requiring sweeping changes to Texas’s foster care system. The State appeals both the liability determination and the injunctive order. For the reasons stated below, we AFFIRM in part, REVERSE in part, VACATE, and REMAND for modification of the injunction. I. Facts and Proceedings
The Texas Department of Family and Protective Services1 is responsible for roughly 29,000 children. When DFPS’s Child Protective Services (“CPS”) division determines that it is not safe for a child to remain with his legal guardian as a result of abuse and/or neglect, CPS petitions the court to remove the child to the Temporary Management Conservatorship (“TMC”). TMC is intended to be a nonpermanent custody arrangement. CPS places the TMC child with a relative or a certified caregiver while CPS attempts to reunify the child with his legal guardian, permanently place him with a relative, or arrange for him to be adopted. There are approximately 17,000 children in TMC, which lasts for one year unless the court extends it by six months. If CPS cannot achieve permanency2 for the child at the end of the TMC period, the child enters the Permanent Managing Conservatorship (“PMC”). There are approximately 12,000 children in PMC.
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1 DFPS is overseen by Texas’s Health and Human Services Commission. See Tex. Gov’t Code Ann. § 531.0055.
2 “Permanency” is the term used to refer to a child’s exiting from DFPS care into an appropriate, permanent setting. It is the ultimate goal for children in State custody.
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No. 18-40057 Many things change when a child is moved to PMC. As a general matter, PMC children get less attention from their caseworkers and other advocates than do TMC children. For example, according to requirements set by the state legislature, PMC children are entitled to fewer permanency review hearings, planning meetings, and status hearings per year. TMC children receive four service plan reviews in their first year, but PMC children receive only two reviews per year. Unlike TMC children, PMC children are not entitled to an attorney ad litem, and they are far less likely to have Court Appointed Special Advocate (“CASA”) volunteers. As one state court-commissioned report put it, “[t]hough the State’s responsibility for the child’s life and well-being does not change—and arguably increases—the attention paid to the child’s cases diminishes drastically.” There is a sense among CPS staff that when a child transitions into PMC, “the clock stops ticking.” Children receive one of four “service level” designations upon entering state custody—Basic, Moderate, Specialized, or Intense—based on their physical and psychological needs. Placements must be licensed to care for children at specific service levels. DFPS has access to a variety of placement settings, though it directly manages only about 10% of them. The remaining 90% are managed by private child-placing agencies (“CPAs”) contracting with the State. Relevant placement setting options, listed from least to most restrictive, include: 1) foster family homes that contain 1 to 6 children; 2) foster group homes that contain 7 to 12 children (“FGHs”); 3) general residential operations that contain 13 or more children (“GROs”); and 4) residential treatment centers (“RTCs”), which provide therapeutic treatment for children with more severe emotional or mental-health issues. It is DFPS policy to find the most appropriate placement for foster children and to try to keep children in their home counties. Policy also specifies that children should be placed with their siblings whenever possible and in
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No. 18-40057 family-like settings as opposed to group homes if it is feasible and in the child’s best interest. Because of practical limitations on placement availability, roughly 40% of children are placed “out of region.”3 Approximately 64.7% of sibling groups are placed together. Just under 14% of PMC children under 12 are placed in FGHs, GROs, or RCLs. DFPS does not have a policy against mixing children of different ages, sexes, and service levels in FGHs, though girls and boys may not share the same bedroom.
Primary conservatorship caseworkers (“CVS caseworkers” or “caseworkers”) are a foster child’s most important point of contact within DFPS, and they are critical to the provision of safety for foster children. CVS caseworkers are responsible for, among other things, assessing children’s placement needs, finding appropriate placement, monitoring the children to make sure they are safe, ensuring that they receive needed services, developing and implementing permanency plans, attending court hearings and plan meetings, updating the children’s medical records, and conducting monthly face-to-face visits with the children and their foster families.4 Given caseworkers’ sweeping responsibilities, the Child Welfare League of America (“CWLA”) recommends that they carry a caseload that includes no more than 12 to 15 children.5 DFPS does not place any limits on the number of cases CVS caseworkers can carry. As of June 2014, nearly half of CVS caseworkers carried caseloads of 21 children or more, 22% carried caseloads of 26 or more, and nearly 10% carried caseloads of 31 children or more.6 Caseworkers report that
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3 “Out of region” generally means outside of the child’s home county. 4 CVS caseworkers’ caseloads include both TMC and PMC children. 5 The Texas legislature recognizes the CWLA guidelines as a relevant, but not binding, benchmark. See Tex. Gov’t Code Ann. § 531.001(5). 6 There is reason to doubt that these calculations capture the full scale of the caseload burden. The problems associated with the DFPS-provided data is discussed more fully in Section IV, infra.
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No. 18-40057 they are overworked, and DFPS experiences a high rate of caseworker turnover.
Because placement availability is limited, it is often impracticable for caseworkers to make their monthly face-to-face visits with their children. DFPS often uses secondary workers to fill this gap. In some cases, when caseworkers are too busy or too far away, secondary “I See You” (“ISY”) workers will take on the home visits. Caseworkers then rely on ISY workers’ notes in case planning. ISY workers typically carry a large caseload, and their responsibilities are significantly more limited than are those of primary caseworkers. They are not required to follow up on a child’s needs, and they are not involved in any aspect of a child’s permanency plan outside of providing relevant information to the child’s primary caseworker. ISY workers’ primary responsibility is to see the child and confirm that the child “is still there.” Testimony at trial strongly suggests that ISY visits are perfunctory and that the information they generate from the foster child is often superficial and unhelpful. Children do not feel comfortable sharing their problems with their revolving roster of ISY workers, who often fail to meet with them in private as required by DFPS policy.
With respect to recordkeeping, DFPS’s methods are shockingly haphazard and inefficient. A significant portion of children’s records are kept in DFPS’s electronic IMPACT casework system. Data on abuse and neglect investigations are maintained by the Residential Child Care Licensing (“RCCL”) division in its CLASS database. Caseworkers have access to CLASS, but the data is not merged with IMPACT files. RCCL allows CPAs to keep their own records. Medical records and related information is accessible via the STAR Health Passport, which is not synced with IMPACT, though IMPACT is supposed to include children’s comprehensive medical information. Neither IMPACT nor STAR can “store” many requisite documents electronically, so
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No. 18-40057 documents such as medical assessments and birth certificates are maintained in paper files. Some children’s files are maintained entirely in paper form, and casefiles are often inordinately long.7
The task of inspecting, investigating, and licensing placements is managed by RCCL. The Performance Management Unit (“PMU”) is responsible for internal quality control for all of DFPS, including RCCL. RCCL investigates any reports of neglect and abuse. When RCCL investigates an allegation, it ascribes one of four outcomes upon completion: 1) Reason to Believe (“RTB”); 2) Ruled Out (“RO”); 3) Unable to Determine (“UTD”)8; or 4) Administrative Closure.9 Two PMU studies of a random sample of UTD dispositions revealed a high rate of disposition errors.
RCCL investigates incidents of child-on-child abuse, but does not formally track or aggregate those statistics; rather, it labels child-on-child incident investigations “negligent supervision” cases. The only place RCCL records a child’s history of abusing other children is in the perpetrating child’s individual casefile. This means that this information is not easily accessible to caseworkers when they are evaluating whether a placement is appropriate for one of their children.10 It also means that incidents of child-on-child abuse are
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7 The district court noted that the records for the 20 children it had access to totaled over 350,000 pages. Case file length is also inconsistent. For example, J.S.’s case file was 40,000 pages long, but the case files for an eight-sibling group comprised a total of 16,500 pages.
8 UTD is a final disposition and does not mandate RCCL follow-up. 9 RTB and RO dispositions mean a “preponderance of the evidence” indicates abuse did or did not occur. “Administrative Closure” means “The operation is not subject to regulation; or the allegations do not meet the definition of abuse, neglect, or exploitation.” 10 Essentially, this information is not “searchable” for a caseworker. As a result, caseworkers may miss it. For example, named plaintiff D.I. was placed in a home with a 16year-old boy who had sexually abused a young boy several years earlier; D.I. was ultimately sexually abused by this same 16-year-old boy. The boy’s abuse history was not accessible to D.I.’s caseworker, and thus it was overlooked when making the placement decision.
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No. 18-40057 not included in the abuse rate/data DFPS provides to the federal government or the data that was provided to the district court.
Children “age out” of foster care when they reach the age of 18. Roughly 1,300–1,400 foster children “age-out” of the foster system annually. Of these, approximately 25–30% go back into extended foster care. Another small percentage with intellectual and developmental disabilities go into the guardianship of a separate program not maintained by DFPS. The rest, presumably, though it’s not clear from the record, find a permanent living arrangement, make use of shelters and other non-profit programs for youths aging-out of foster care, or end up homeless. DFPS offers independent living classes to foster children over the age of 16, though DFPS apparently does not know what percentage of children actually utilize the program.
Plaintiffs, minor children in the PMC, filed suit through next friends in March 2011, alleging that the State violated their substantive rights under the Due Process Clause of the Fourteenth Amendment. They sought injunctive relief against the Governor of Texas, the Executive Commissioner of the Texas Health and Human Services Commission, and the Commissioner of DFPS. The district court granted their motion for class certification under Federal Rule of Civil Procedure 23. Following the Supreme Court’s opinion in Walmart v. Dukes, 564 U.S. 338 (2011), this court vacated and remanded the certification. M.D. ex rel. Stukenberg v. Perry (M.D. I), 675 F.3d 832 (5th Cir. 2012). After a three-day hearing, the district court concluded that the requirements of Rule 23(a) had been met, and certified a general class—all children now, or in the future, in the PMC in Texas—and three subclasses: 1) Licensed Foster Care
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No. 18-40057 Subclass (“LFC”)11; 2) FGH subclass; and 3) Basic care GRO subclass12. The State’s interlocutory appeal of the certification order was dismissed as untimely. M.D. ex rel. Stukenberg v. Perry, 547 F. App’x 543 (5th Cir. 2013).
Following a two-week bench trial, the conscientious district court issued its liability opinion in December 2015. The district court ultimately found that DFPS’s policies and practices with respect to caseloads, monitoring and oversight, placement array, and foster group homes violated plaintiffs’ substantive due process rights. It ordered the State to “establish and implement policies and procedures to ensure . . . PMC foster children are free from an unreasonable risk of harm” and enjoined DFPS from placing children in FGHs that lack 24-hour awake-night supervision.
Over the course of the trial, the court heard from twenty-eight fact witnesses: 1) six next friends and attorneys ad litem, who have roughly 80 years of experience in the child welfare system between them and who have dealt extensively with PMC children and CVS caseworkers; 2) five former PMC foster children; 3) a non-profit leader who runs a shelter and transitional living program for youths aging-out of foster care in Texas and who has personally fostered 65 children over the last 16 years; 4) two former CVS caseworkers; and 5) 14 current DFPS officers13. The district court also heard testimony from twelve expert witnesses proffered by the plaintiffs and the State. It gave various weight to the experts’ testimony according to the district court’s credibility determinations. Ultimately, the district court disregarded the testimony of two proffered experts in their entirety as unreliable.
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11 LFC includes all members of the General Class in licensed or verified foster care placements, excluding verified kinship placements.
12 The Basic Care GRO subclass was later decertified as without adequate representatives.
13 Some of these officers have since left the agency.
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No. 18-40057 The court considered several reports detailing both independent and internal reviews of the Texas foster care system, including multiple reports that were commissioned by DFPS itself. The reports date back to 2004, and several of them reference earlier agency reviews and internal audits, most notably a report authored by the Governor’s Committee to Promote Adoption (“GCPA”) in 1996. Additionally, the district court considered national child welfare standards provided by the CWLA and the Council on Accreditation, and Child and Family Service Reviews (“CFSR”) performed by the United States Department of Health and Human Services. This court denied the State a stay pending appeal. The district court appointed Special Masters to address specific constitutional shortcomings at DFPS, and this court denied defendants’ petition for writ of mandamus requesting the court vacate the appointment. The Special Masters studied DFPS and its policies for nearly two years and submitted a final list of findings and recommendations to the district court. The district court entered a final order granting plaintiffs a permanent injunction in January 2018 and appointed a Special Monitor. The State appealed, and this court granted an administrative stay of the injunction, which was converted to a stay pending appeal by our panel on March 21. The State raises three primary objections to the district court’s liability determination and the injunctive order: 1) the district court erred in concluding that DFPS policies affecting the PMC class violate plaintiffs’ substantive due process right and, as such, plaintiffs are not entitled to injunctive relief; 2) the district court abused its discretion in certifying the general class and various subclasses; and 3) the scope of the district court’s injunction is improper.
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No. 18-40057 II. Standard of Review
Following a bench trial, this court reviews the district court’s conclusions of law de novo and its factual findings for clear error. Cerda v. 2004–EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). “The predicate findings of a substantial risk of serious harm and officials’ deliberate indifference to the risk are factual findings reviewed for clear error.” Ball v. LeBlanc, 792 F.3d 584, 592 (5th Cir. 2015); Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004); cf. Farmer v. Brennan, 511 U.S. 825, 842 (1994).14 Such findings are erroneous only if “[they are] without substantial evidence to support [them], the court misinterpreted the effect of the evidence, or this court is convinced that the findings are against the preponderance of credible testimony.” Ball, 792 F.3d at 592 (quoting Petrohawk Props., L.P. v. Chesapeake La., L.P., 689 F.3d 380, 388 (5th Cir. 2012)). Whether the facts as found establish a violation of the Due Process Clause is a “legal conclusion based on factual inferences” subject to de novo review. See Dalheim v. KDFW-TV, 918 F.2d 1220, 1226 (5th Cir. 1990).
The district court’s decision to certify a class is reviewed for abuse of discretion. Yates v. Collier, 868 F. 3d 354, 359 (5th Cir. 2017). This court recognizes “the essentially factual basis of the certification inquiry and [] the district court’s inherent power to manage and control pending litigation.” M.D. I, 675 F.3d at 836. “Nonetheless, this broad discretion must operate ‘within the framework of Rule 23,’ and we ‘review de novo whether the district court
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14 The State insists that the deliberate indifference finding is subject to de novo review. This contention is contradicted by Supreme Court and Fifth Circuit precedent. Certainly, we review the district court’s conclusions regarding the legal significance of the facts de novo. See Barrett v. United States, 51 F.3d 475, 478 (5th Cir. 1995). But this court has made clear that deliberate indifference is a factual finding reviewed only for clear error. See, e.g., Ball, 793 F. 3d at 592; Gates, 376 F.3d at 333.
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No. 18-40057 applied the correct legal standards.’” Yates, 868 F.3d at 360 (quoting M.D. I, 675 F.3d at 836).15
This court reviews the district court’s grant of a permanent injunction for abuse of discretion. Ball, 792 F.3d at 598. The district court abuses its discretion if it “(1) relies on clearly erroneous factual findings when deciding to grant or deny the permanent injunction[,] (2) relies on erroneous conclusions of law when deciding to grant or deny the permanent injunction, or (3) misapplies the factual or legal conclusions when fashioning its injunctive relief.” Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th Cir. 2014) (internal quotation omitted). III. Governing Law
We begin with an overview of the legal framework for evaluating plaintiffs’ claims. In order to state a claim for a substantive due process violation under § 1983, the plaintiffs must demonstrate: 1) they were deprived of a cognizable constitutional right, see Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006); 2) the State acted with “deliberate indifference” to the protected right, see Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F. 3d 872, 880 (5th Cir. 2004); and 3) the policies or practices complained of were the direct cause of the constitutional deprivation, see Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
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15 We note that the State failed to timely appeal the final class certification order. See M.D. ex rel. Stukenberg v. Perry, 547 F. App’x 543 (5th Cir. 2013). Consequently, this court granted the plaintiffs’ motion to dismiss the State’s petition for permission to appeal as untimely. See id. Nonetheless, because an interlocutory appeal is permissive rather than mandatory, the State retains the right to challenge the class certification following the ultimate disposition of the case on the merits. Cf. Hamilton Plaintiffs v. Williams Plantiffs, 147 F.3d 367, 381 (5th Cir. 1998); see also Yamamoto v. Omiya, 564 F.2d 1319, 1325 n.11 (9th Cir. 1977). Our liability findings, however, will essentially dispose of the question of whether the classes were properly certified in the first instance, and will obviate the need for a lengthy analysis of the certification issue.
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No. 18-40057 1. The Substantive Due Process Right As a general matter, the State is under no affirmative obligation to protect its citizens from private harm. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). The Supreme Court has recognized, however, that when the State assumes certain custodial roles with respect to an individual, it creates a “special relationship” that imparts to the State a limited duty to provide for that person’s safety and general well-being. See id. As the Court explained:
The rationale for [these protections] is simple enough: when the state by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. Id. at 200 (citing Estelle v. Gamble, 429 U.S. 97, 103–04 (1976); Youngberg v. Romeo, 457 U.S. 307, 315–16 (1976)). The Court has found that a special relationship exists between the State and prisoners, Gamble, 429 U.S. at 103– 04, involuntarily-committed mental patients, Youngberg, 457 U.S. at 315–16, and suspected criminals injured in the course of being apprehended by police, City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). In DeShaney, the Supreme Court found that no “special relationship” existed between the State and a child who had been placed in the temporary custody of a local hospital by an emergency court order. See DeShaney, 489 U.S. at 192–203. But, in holding that the State had no affirmative duty to intervene on the child’s behalf, the Court highlighted that “the harms [the child] suffered occurred not while he was in the State’s custody, but while he was in the custody of his natural father, who was in no sense a state actor.” Id. at 201. It qualified that, “[h]ad the State by the affirmative exercise of its power
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No. 18-40057
removed [the child] from free society and placed him in a foster home operated
by its agents, we might have a situation sufficiently analogous to incarceration
or institutionalization to give rise to an affirmative duty to protect.” Id. at 201
n.9.16
Following DeShaney, the Fifth Circuit held that a “special relationship”
exists between the State and children when the State “remove[s] them from
their natural home and place[s] them under state supervision.” Griffith v.
Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990).17 Having taken custody of a
child, the State “assume[s] the responsibility to provide for constitutionally
adequate care.” Id.; see also Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 856 (5th Cir. 2012); Hernandez, 380 F. 3d at 880.
This court has defined the substantive due process right enjoyed by
children in the custody of the State’s foster care system as a right to “personal
security and reasonably safe living conditions.” Hernandez, 380 F.3d at 880.18
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16 It noted that “several Courts of Appeals have held, by analogy to Gamble and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents.” DeShaney, 489 U.S. at 201 n.9 (citing Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134, 141– 42 (2d Cir. 1981); Taylor ex. Rel. Walker v. Ledbetter, 818 F.2d 791, 794–97 (11th Cir. 1987) (en banc)). Ultimately, the Court declined to express an opinion on “the validity of this analogy,” as that precise question was not before it. DeShaney, 489 U.S. at 201, n.9.
17 Virtually every other circuit agrees. See, e.g., Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842 (9th Cir. 2010); Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 175 (4th Cir. 2010); Lewis v. Anderson, 308 F.3d 768, 773 (7th Cir. 2002); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en banc); Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 891–93 (10th Cir. 1992); Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir.); Taylor, 818 F.2d at 794–97; Doe, 649 F.2d at 141–42 (2d Cir. 1981).
18 The district court formulated the substantive right as “the right to be free from an unreasonable risk of harm.” To the extent that formulation is merely “paraphrasing” the right as articulated in Hernandez, it is not inconsistent with this court’s precedent. The State contends that the district court’s formulation transforms the deliberate indifference culpability standard into a mere negligence standard. As plaintiffs point out, however, the district court’s use of the phrase “unreasonable risk of harm” pertains to the definition of the substantive right conferred by the Due Process Clause—not the requisite level of culpability necessary to hold the state liable for violating that right. (explaining that being exposed to
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No. 18-40057
Though the precise contours of “personal security” and “reasonably safe living
conditions” have yet to be fleshed-out at length, it is clear that foster children
are, at minimum, entitled to protection from physical abuse and violations of
bodily integrity. See, e.g., id. at 880–81. This court has not, however, required
the State to guarantee the individual’s betterment or unconditional stability.19
But there is a significant amount of daylight between physical abuse and
maximum personal psychological development, optimal treatment, or the most
appropriate care. The district court held that the substantive right
encompasses a right to protection from psychological abuse.20 We agree that
plaintiffs’ substantive right to “personal security and reasonably safe living
conditions” includes the very limited right to be free from severe psychological
abuse and emotional trauma—both of which are often inextricably related to
some form of physical mistreatment or deprivation. See DeShaney, 489 U.S. at
200; Youngberg, 457 U.S. at 317. Indeed, DeShaney notes that, in a custodial
setting, the State assumes at least “some responsibility” for both an
individual’s “safety” and his “general well-being.” Deshaney, 489 U.S. at 199–
200. Other courts have recognized that the State’s responsibility to protect
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an unreasonable risk of harm “is the legal injury”). The district court correctly identifies deliberate indifference as the appropriate culpability standard.
19 See, e.g., Griffith, 899 F.2d at 1439 (rejecting the contention that the State has a “responsibility to [] maximize[] [foster children’s] personal psychological development”); Drummond v. Fulton Cty. Dep’t of Family and Children’s Servs., 563 F.2d 1200, 1208–09 (5th Cir. 1977) (stating a child does not have a “right to a stable environment” or a right “not to be moved from home to home,” notwithstanding the “significant literature which indicates a traumatic effect of such moves on young children”); see also Feagley v. Waddill, 868 F.2d 1437, 1440 (5th Cir. 1989) (“[W]here the state does not provide treatment designed to improve a mentally [handicapped] individual’s condition, it deprives the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it is under no obligation to grant.”).
20 While we agree that a certain level of psychological harm is cognizable, the district court took this principle too far in the direction of “optimal treatment” and the “right to a stable environment” in some portions of its analysis. The overbroad interpretation of the right is discussed more thoroughly in Section VI, infra.
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No. 18-40057 foster children’s “general well-being” requires it “to take steps to prevent children in state institutions from deteriorating physically or psychologically.” See, e.g., K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990).21
We stress, however, that there are significant limits on the scope of the right to be free from certain forms of psychological harm. The Fourteenth Amendment does not entitle plaintiffs to receive optimal treatment and services, nor does it afford them the right to be free from any and all psychological harm at the hands of the State. See, e.g., Griffith, 899 F.2d at 1439; Drummond, 563 F.2d at 1208–09; Feagley, 868 F.2d at 1441. Many inherent features of the foster care system, such as the ambulatory nature of children’s placements, have negative psychological consequences. Such negative consequences are regrettable, but they are not the type of significant, abuse-related psychological damage the Constitution prohibits. In sum, egregious intrusions on a child’s emotional well-being—such as, for example, persistent threats of bodily harm or aggressive verbal bullying—are constitutionally cognizable. Incidental psychological injury that is the natural, if unfortunate, consequence of being a ward of the state does not rise to the level of a substantive due process violation.
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21 District courts generally assume a right to be free from both physical and psychological damage. See, e.g., Yvonne L., 959 F. 2d at 892 (noting with approval the language in K.H.); Connor B. ex rel. Vigurs v. Patrick, 985 F. Supp. 2d 129, 158–59 (D. Mass. 2013) (recognizing that the right to be free from psychological as well as physical deterioration); R.G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006) (stating that the liberty interest protected by the due process clause “encompasses a right to protection from psychological as well as physical abuse”); Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662, 675 (S.D.N.Y. 1996) (“custodial plaintiffs have a substantive due process right to be free from unreasonable and unnecessary intrusions into their emotional well-being”); B.H. v. Johnson, 715 F. Supp. 1387, 1395 (N.D. Ill. 1989) (stating the same).
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No. 18-40057 2. Deliberate Indifference In order to hold the State liable for violating plaintiffs’ substantive due process rights, plaintiffs are required to demonstrate that the State’s conduct “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The Supreme Court has explained that the Due Process Clause protects individual citizens from “arbitrary action of government,” and that under the “shocks the conscience” standard, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Id. at 845–46 (internal quotations omitted). “While the measure of what is conscience shocking is no calibrated yard stick,” id. at 847, it is not enough that the conduct “offend[s] some fastidious squeamishness or private sentimentalism.” Rochin v. California, 342 U.S. 165, 172 (1952). Most recently, the Court reiterated that the “‘shocks the conscience’ standard is satisfied where the conduct was ‘intended to injure in some way unjustifiable by any government interest,’ or in some circumstances if it resulted from deliberate indifference.” RosalesMireles v. United States, 138 S. Ct. 1897, 1906 (2018) (quoting Lewis, 523 U.S. at 849–50). Furthermore, “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849. “Consistent with [these] principles,” this court has required plaintiffs to show that the State “at a minimum acted with deliberate indifference toward the plaintiff.” Hernandez, 380 F.3d at 880 (quoting McClendon v. City of Columbia, 305 F.3d 314, 326 (5th Cir. 2002)).22 Demonstrating that the State
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22 There is some debate between the parties as to whether deliberate indifference is the appropriate standard of culpability in the foster care context. Both raise the possibility that Youngberg’s “professional judgment” standard should apply. See Youngberg, 457 U.S. at 321–23. Under this standard, the State is liable for decisions that constitute “substantial departure[s] from accepted professional judgment.” Id. at 323. “The compelling appeal of the argument for the professional judgment standard is that foster children, like involuntarily
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No. 18-40057
acted with deliberate indifference is “a significantly high burden for plaintiffs
to overcome.” Id. at 882 (citing Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 218
(5th Cir. 1998)). “To act with deliberate indifference, a state actor must
consciously disregard a known and excessive risk to the victim’s health and
safety.” Id. at 880 (citing Farmer, 511 U.S. at 837). Stated differently, “the
[State] must be both aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and [it] must also draw that
inference.” Id. at 881 (quoting Farmer, 51 U.S. at 837). This is “a degree of
culpability beyond mere negligence or even gross negligence; it ‘must amount
to an intentional choice, not merely an unintentionally negligent oversight.’”
James v. Harris Cty., 577 F.3d 612, 617–18 (5th Cir. 2009) (quoting Rhyne v.
Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992)). Moreover, the State is not
deliberately indifferent to a substantial risk of serious harm if, aware of the
risk, it “respond[s] reasonably . . . even if the harm ultimately was not averted.”
Farmer, 511 U.S. at 844.
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committed patients, are ‘entitled to more considerate treatment and conditions’ than criminals.” Yvonne L., 959 F.2d at 894 (quoting Youngberg, 457 U.S. at 321–22). The Tenth Circuit noted, however, that “[a]s applied to a foster care setting, we doubt there is much difference” between the deliberate indifference and the professional judgment standards. Id.
The parties’ dispute is of no real consequence, as it is settled law in this circuit that the court applies the deliberate indifference culpability standard to allegations that the State violated plaintiffs’ substantive due process rights. See, e.g., Hernandez, 380 F.3d at 880; Doe, 675 F.3d at 863. Nearly every circuit to decide the question also identifies deliberate indifference as the appropriate standard. See Tamas, 630 F.3d at 844 (9th Cir.); James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006); J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 792 (7th Cir. 2003); Nicini, 212 F.3d at 810–11 (3d Cir.); Meador, 902 F.2d at 476 (6th Cir.); Taylor, 818 F. 2d at 794–97 (11th Cir.); Doe, 649 F.2d at 141 (2d Cir.). But see Connor B., 774 F.3d at 162–63; Schwartz v. Booker, 702 F.3d 573, 583 (10th Cir. 2012). The State also baldly claims—without any case law support—that the “professional judgment standard is a “more stringent test.” This panel has found no cases indicating that professional judgment is a higher standard. Indeed, case law universally indicates that the standards are either roughly equal or that professional judgment is a more lenient culpability standard. See, e.g., Yvonne L., 959 F.2d at 894; Connor B., 771 F. Supp. 2d at 162 n. 4. The district court, out of an abundance of caution, analyzed the alleged violations under both the deliberate indifference and the professional judgment standards.
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No. 18-40057 Though deliberate indifference is a subjective standard of recklessness focusing on what the State actually knew, rather than what it should have known, McClendon, 305 F.3d at 326, “this court has never required state officials to be warned of a specific danger.” Hernandez, 380 F.3d at 881 (emphasis added). “[R]ather, it is enough that the [State] acted or failed to act despite [its] knowledge of a substantial risk of serious harm”—the plaintiffs need not show that the State anticipated the exact form the harm would take. Id. This court in Hernandez explained: “as a state official may not escape deliberate indifference liability by arguing that the risk of harm arises from a source not contemplated, a defendant also cannot avoid such liability by contending that the particular method of harm, i.e. how the abuse was carried out, was not envisioned.” Id. at 882. Accordingly, to overcome the culpability standard, the plaintiffs were required to demonstrate only that the State “knew of the underlying facts indicating a sufficiently substantial danger and that [it] did not believe that the risks to which the facts gave rise [were] insubstantial or nonexistent.” Id. (citing Rosa H v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 659 (5th Cir. 1997)). The Supreme Court has also explained that the deliberately indifferent state of mind can be inferred “from the fact that the risk of harm is obvious.” Hope v. Pelzer, 536 U.S. 730, 737 (2002); see also Farmer, 511 U.S. at 842. In other words, if the risk of severe abuse is sufficiently apparent, a court is entitled to find that the State was deliberately indifferent. See Hernandez, 380 F.3d at 881. Furthermore, plaintiffs may be protected against future harm not yet realized through a prospective injunction. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (stating that “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them[,]” and “a remedy for unsafe conditions need not await a tragic event”); see also Hoptowit v.
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No. 18-40057 Spellman, 753 F.2d 779, 783–84 (9th Cir. 1985) (Hoptowit II); Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir. 1974).
3. Causation In addition to establishing that they were deprived of a constitutional right and that the State acted with the requisite level of culpability, plaintiffs must show that the State is the “‘moving force’ behind the deprivation.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Piotrowski, 237 F.3d at 578. “[T]hus[] . . . the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Graham, 473 U.S. at 166. This court has cautioned that culpability and causation requirements “must not be diluted, for ‘[w]here a court fails to adhere to rigorous requirements of culpability and causation, [state entity] liability collapses into respondeat superior liability.’” Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 415 (1997)). Causation is, however, an “intensely” fact-bound inquiry. Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir. 1999). “Because the district court is better positioned [ . . . ] to decide the issue, our review of the . . . cause determination is deferential.” Brown v. Plata, 563 U.S. 493, 517 (2011) (internal quotations omitted). Establishing a “direct causal link between the [State] policy and the constitutional deprivation” is a “high threshold of proof.” Piotrowski, 237 F.3d at 580. “This connection must be more than a mere ‘but for’ coupling between cause and effect.” Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992) (citing City of Canton v. Harris, 489 U.S. 378, 388–89 (1989)). “It follows that each and any policy [or practice] which allegedly caused constitutional violations must be specifically identified by a plaintiff, and it must be determined whether each one is facially constitutional or unconstitutional.” Piotrowski, 237 F.3d at 579–80. Concerned with the distinction between an
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No. 18-40057 offending policy and isolated instances of violative conduct by individual bad actors, the court in Piotrowski emphasized the need to “disaggregate[]” the policies or customs causing the alleged constitutional deprivation. See id. at 581. Neither Piotrowski nor this court’s related precedent regarding the § 1983 causation requirement, however, suggests a plaintiff is required to demonstrate that a challenged policy or practice is the exclusive cause of the constitutional deprivation. See id.; Fraire, 957 F.2d at 1281; see also Graham, 473 U.S. at 166 (noting that the entity’s policy or practice “must have played a part in the violation of federal law” (emphasis added)).
The district court stated that, with respect to causation, it “[understood] Plaintiffs’ argument as saying that each policy and practice does not, on its own, have to result in a constitutional violation.” It pointed to this court’s opinion in Alberti v. Klevenhagen for the proposition that, “[i]n determining the constitutional question, we need not separately weigh each of the challenged institutional practices and conditions, for we instead look to ‘the totality of conditions.’” 790 F.2d 1220, 1224 (5th Cir. 1986) (quoting Ruiz v. Estelle, 679 F.2d 1115, 1139 (5th Cir.) (Ruiz VII), modified on other grounds, 688 F.2d 266 (5th Cir.1982); see also Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (“Conditions . . . alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities.”); Hutto v. Finney, 437 U.S. 678, 686–87 (1978) (stating that whether punitive isolation is unconstitutional will depend on the conditions of confinement). Alberti, Ruiz, and the related Supreme Court precedent stand for the logical proposition that, under the Eighth Amendment, the question of whether a particular policy or practice causes a constitutional violation necessarily depends on context—i.e., how that policy or practice is interacting with other prison conditions. A certain condition could amount to a constitutional violation in the Prison A environment, but not in the Prison B environment. See, e.g., Finney, 437 U.S. at 686–87.
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No. 18-40057 Requiring plaintiffs to identify with specificity the policies they allege directly cause constitutional harm is not irreconcilable with the idea that, in assessing the harm caused by a particular policy, the court may consider how other policies or practices exacerbate or ameliorate its effect. In an Eighth Amendment case from the Ninth Circuit, the court explained that, in applying the “totality of conditions” test, courts are not entitled to simply add together a number of conditions, “each of which satisfy Eighth amendment requirements,” and then “rely on a vague conclusion that the ‘totality of conditions’ violates the Eighth Amendment.” Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir. 1982) (Hoptowit I), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Instead, courts must consider whether each specific condition amounted to cruel and unusual punishment. See Hoptowit II, 753 F.2d at 783–84. The court went on, however, to explain that “[e]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions.” Hoptowit I, 682 F.2d at 1247 (internal quotations omitted). This does not absolve the reviewing court from having to identify individual, deficient conditions. See id. It is merely “a recognition that a particular violation may be the result of several contributing factors.” Id. In sum, the § 1983 causation component requires that the plaintiffs identify, with particularity, the policies or practices they allege cause the constitutional violation, and demonstrate a “direct causal link.” See Piotrowski, 237 F.3d at 580. We do not, however, read our precedent to require the court to consider each policy or practice in a vacuum. The court may properly consider how individual policies or practices interact with one another within the larger system. Though the district court apparently accepted the “totality of conditions” approach, it did address each of the State’s specific policies and
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No. 18-40057
practices on an individual basis. It also considered how the harmful effects of
some policies are exacerbated by others. For example, the district court
explained that DFPS’s refusal to track child-on-child abuse—a policy related
to monitoring and oversight—compounded the problem with excessive
caseworker workloads.
The State’s overarching causation argument essentially boils down to the
contention that, since most children are already “damaged” upon entering
foster care, it would be nearly impossible to prove that it was the State’s
policies or practices, rather than their experiences prior to State custody, that
inflicted the damage.23 It seems to argue that there is just no way to quantify
how much harm came before custody and how much harm was inflicted while
the children were in State care. But the State provides no support for the
proposition that in order to prove causation plaintiffs are required to measure
with absolute precision how much more damage was done before rather than
after children enter the foster system.24
First, Plaintiffs do not dispute that many, if not most, children enter the
foster care system having already experienced significant physical or
emotional trauma that may have a lasting impact on their psychological well-
being. It cannot be the case, however, that because a child has experienced
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23 The district court apparently recognized this potential problem, and instructed the plaintiffs at an early stage in the litigation that “somebody is going to have to tell me that they suffer[] more harm than what they had when they got there.”
24 The State also contends that plaintiffs cannot demonstrate causation because they never conducted a full “case read.” It is correct that case reads are a common and effective method of analyzing trends among a large representative sample of foster children. The State does not, however, suggest that case reads are required for an accurate finding on causation, and we have found no authority indicating that this method is mandatory. Moreover, the district court’s factual findings regarding the abysmal state of PMC children’s case files and CPS’s recordkeeping habits overwhelmingly support the plaintiffs’ contention that a full case read “just was not feasible.” The district court itself reviewed 20 case files—all of them incomplete—totaling 358,102 pages. This undertaking took 462 hours. Moreover, given that case files are often woefully fragmentary and scattered across multiple recordkeeping databases, it is unlikely that a case read would have been especially helpful or accurate.
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No. 18-40057 some form of abuse before the State intervenes, he is not capable of being further harmed by additional abuse or neglect while in foster care. It is illogical to argue that because a child comes in already “damaged” the State cannot be held liable for inflicting further harm that compounds that damage—even if it cannot be measured with mathematical certainty.
Furthermore, there was a wealth of evidence at trial establishing that many children experience some degree of concrete harm after entering the State’s care. For example, almost all of the named plaintiffs entered the system at a “Basic” level of care. By DFPS’s own standards, a “Basic” child is the least “damaged” an intake can be. Most saw their level of care increase markedly over the course of their time in PMC as a result of abuse and continued lack of permanency. Their experiences map the accounts of the former foster children who were presented as fact witnesses at trial and are consistent with testimony from attorneys ad litem, former DFPS caseworkers, and experts. Moreover, as noted in Section III(2), supra, plaintiffs need not show that every member of the class has actually been harmed while in State custody; they need only demonstrate that they face a risk of serious harm as a result of the State’s policies and that the State was deliberately indifferent to the risk. See Helling, 509 U.S. at 33.
Before examining the merits of the plaintiffs’ claims with respect to the individually challenged policies, we note globally that the State relies heavily, as it did in the district court, on its performance in a preliminary phase of the Child and Family Services Review (“CFSR”) conducted by the federal government in 2014 as evidence that foster children do not face significant safety risks in the State’s care. It notes that it outperformed the national standard on 6 of the 7 statewide safety and permanency indicators. But 2 of the 6 indicators in which Texas exceeded the standard do not incorporate any data for PMC children at all—they pertain only to children in TMC. The other
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No. 18-40057 4 contain both TMC and PMC data. The only indicator that uses exclusively PMC data is the one that the State failed.
Moreover, the CFSR the State cites was preliminary and based entirely on data the State provided to the federal regulators. In preparing its final report, federal regulators conduct an independent, on-site review. The results of that review were significantly less flattering. Texas failed all 7 outcome measures pertaining to child safety, permanency, and well-being, and it failed 4 out of the 7 statewide indicators. The report also noted that the independent review “raised numerous concerns regarding the quality of the state’s selfassessment of its case practices and the accuracy of case ratings.” IV. DFPS Policies and Practices
Plaintiffs’ claims regarding DFPS’s policies and practices fall into four overarching categories. Specifically, plaintiffs contend that DFPS’s policies and practices with respect to 1) caseload management, 2) monitoring and oversight, 3) placement array, and 4) foster group homes, violate their right to be free from an unreasonable risk of harm while in State custody. We will examine each challenged policy area in turn.
1. Caseloads: General Class DFPS concedes that caseworkers are critical to ensuring children’s safety and that “almost every day these caseworkers can make life and death decisions about the children in their care.” It also admits that “if [caseworkers] really are too busy” to do their job, it would create a safety risk. Notwithstanding that admission, DFPS does not impose any limit on caseloads, and it has not conducted a workload study to determine how many cases a caseworker can safely manage. Moreover, given the lack of reliable, upto date-statistics, it is not even clear from the record how many children, on average, caseworkers are responsible for. As the district court lamented,
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No. 18-40057 “caseworker caseloads are still something of an open question despite years of litigation and weeks of trial.”
Nonetheless, even by DFPS’s charitable estimates, most caseloads exceed the maximum recommended by professional standards and experts.25 The CWLA recommends a caseload range of 12 to 15 children, while the Council on Accreditation recommends a range of 8 to 15 children. The most recent, comprehensive count estimates that nearly half of CVS caseworkers carry caseloads of 21 children or more, 22% carry caseloads of 26 children or more, and nearly 10% carry caseloads of 31 children or more. And numbers supplied by DFPS undersell the scope of the problem.
The data is problematic for a host of reasons. To begin with, DFPS calculates caseloads in terms of “stages,” each representing a segment of a child’s care plan, rather than by the number of individual children for whom each caseworker is responsible. This makes it difficult to assess how many children each caseworker actually has. DFPS claims that, by its calculation, caseworkers are responsible for between 17 and 19 children. In calculating caseload distribution, however, DFPS counted secondary workers—who are not primary CVS caseworkers and some of whom never interact with the child face-to-face—as well as part-time caseworkers and non-human workers “created out of overtime.” Accordingly, the 17 to 19 estimate is exceedingly generous. Indeed, it is internally inconsistent: DFPS represented to the Texas Senate Committee on Finance in 2017 that additional caseworkers and salary increases were necessary to bring the caseload down to 26 children per
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25 The State objects to the use of professional standards to establish a constitutional violation. Of course, professional standards “do not establish the constitutional minima; rather, they establish goals.” Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979). They are, however, a relevant “normative backdrop” against which to evaluate DFPS policies. See Connor B., 985 F. Supp. 2d at 136.
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No. 18-40057 caseworker. The Assistant Commissioner of CPS, Lisa Black, stated at trial that she believes caseworkers carry an average caseload of 28.1 children.
Caseload figures reported by neutral outside auditors demonstrate that the numbers presented by the State at trial are artificially low. A report commissioned by the Texas Supreme Court states that “CPS caseworkers are routinely handling around 30 cases,” and “[i]n the larger urban jurisdictions, caseworkers are commonly assigned 40-plus cases at a time, and the ‘cases’ often involve multiple children from the same family.” The Adoption Review Committee estimated that caseloads were between 30 and 35 cases per caseworker, “often twice what is deemed best practice.” Former DFPS caseworker Beth Miller testified that she routinely carried 40 to 60 cases, “sometimes higher.” Her former colleague, Katrina Voelkel, similarly testified that she remembers regularly carrying between 30 and 50 cases. Significantly, caseload averages “do not reflect spikes in caseloads that can occur when a coworker goes on extended leave or quits.” In short, the record amply supports the district court’s finding that CVS caseloads are extremely high.
Oversized workloads are also the primary cause of the exceedingly high rate of caseworker turnover. Indeed, the State’s own expert on child welfare policy, Dr. Jane Burstain, authored an article in 2009 that stated there was “a fairly direct relationship . . . between caseloads and voluntary turnover.” This relationship has “remained consistent from year to year.” Over 25% of the roughly 2,000 CVS caseworkers leave CPS annually. More than 25% of caseworkers leave within their first year, and 43% leave within their first two years. And Burstain has said that turnover rates are likely understated, as they do not account for caseworkers who leave their positions for others within the agency. To keep pace with the attrition rate, DFPS has to hire approximately 500 new caseworkers every year just to maintain a full-capacity
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No. 18-40057 workforce of 1,000.26 DFPS struggles to hire and train workers quickly enough to fill all of the available positions. As a result, CPS has a high volume of positions that remain vacant.
Turnover is also an enormous fiscal burden for DFPS. The Sunset Commission estimated in 2014 that the loss of caseworkers over the prior year resulted in a $72.7 million impact to the agency. Experts estimate that retaining even a portion of lost workers for an extra year could save DFPS roughly $25 million. Turnover is not only costly, “[i]t also creates a negative environment that reduces productivity as well as feeds more turnover.” Internal DFPS reviews consistently reveal the general sentiment within CPS that management practices are “unfair, unsupportive, bullying, unreasonable, and fear-driven.” Agency employees even expressed concern about retaliation for their cooperation with an external review commissioned by the state legislature. Caseworkers feel that agency supervisors are singularly focused on ensuring that caseworkers meet arbitrary metrics rather than assessing whether they are making meaningful progress with their cases and providing quality services. The added stress of keeping up with the requirements of a purely numbers-driven management approach contributes to caseworkers’ feelings of hopelessness and frustration and reduces overall productivity. The vicious cycle is never-ending: unmanageable workloads and a caustic work environment lead to high rates of caseworker turnover; turnover further exacerbates caseworker burnout, low morale, and a negative agency culture, which feeds more turnover.
High turnover compounds the workload problem, as caseloads have to be redistributed as caseworkers leave. New caseworkers do not receive a full
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26 Only 1,000 caseworkers are fully “up to speed” on their caseload. The remaining 1,000 caseworkers will have been at CPS less than two years.
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No. 18-40057 caseload for at least six months after joining CPS. Accordingly, the remaining CVS caseworkers are forced to add additional cases to their already bloated caseloads in the interim. Of the new hires, one out of every six leaves within the first few months, and the process of hiring and training starts anew as DFPS scrambles to fill those slots. This means that DFPS cannot relieve veteran caseworkers of their additional “temporary” workload in a timely manner. New caseworkers that remain after the training process is complete face a daunting learning curve. Again, it took the district court 462 hours— eleven uninterrupted workweeks—just to read the 358,102 pages of casefiles for 20 PMC children. Reading the information containing in the casefile is, of course, only the beginning. All in all, DFPS estimates it takes roughly two years for a caseworker to get up to speed on a new case. The high rate of turnover year after year means that this arduous process is duplicated many times over.
The combination of unmanageable caseloads and high caseworker turnover creates a “cycle of crisis” that allows children to “fall through the cracks.”27 A comprehensive agency analysis commissioned by DFPS found that the workload level “is qualitatively reducing CPS caseworkers’ ability to keep children safe.” This conclusion is unsurprising. A logical result of inconsistent and perfunctory contact with caseworkers is that children don’t have material
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27 We wish to make clear that we do not question that CVS caseworkers are incredibly selfless, dedicated public servants. Caseworkers demonstrate unwavering commitment to the children in their care on a daily basis, often at great personal cost. We recognize that caseworkers’ jobs are often thankless. They are not in it for the money or the recognition— there is too little of either to go around. Caseworkers do this work because they want to make a difference in the lives of society’s most vulnerable children. We owe them an immense debt of gratitude. Our discussion of the issues plaguing DFPS is not an indictment of the individual men and women who do the hard work on the ground. The problems at DFPS are systemic. Notwithstanding caseworkers’ devotion to their work, DFPS policies and practices with respect to caseload management make it more difficult for caseworkers to do their jobs successfully.
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No. 18-40057 access to an advocate when something goes wrong in their placement. Attorneys ad litem and former foster children testified that caseworkers were often too busy to answer or return phone calls—even after repeated attempts to reach them. Former foster child Darryl Jackson testified that “it was just hard to get in contact” with his caseworker, “to even have a conversation with her, you know, tell her I needed things.” Colleen McCall, the Director of Field Operations at CPS, stated in an Action Memorandum that “[d]ue to the shortage of staff, required caseworker documentation, such as Child Service Plans and documentation of children’s medicals and dentals, are not being completed timely, if at all.” More than 55% of caseworkers report that “they do not have adequate time during the workday to successfully do their job.”
Caseworkers are routinely unable to make regular, face-to-face contact with their children; even when they are able to make visits, the contact is often “cursory.” As a result of high caseloads and administrative burdens, both of which are exacerbated by the abysmal state of DFPS’s recordkeeping systems, CVS caseworkers spend only 26% of their work hours actually interacting with foster children and families. “[T]his number is clear evidence that the agency is doing more compliance than care.” John Specia, the DFPS Commissioner at the time of trial, called this face-time figure “disturbing.”
Several named plaintiffs and former foster children testified that they would often go months without seeing their primary caseworker. When caseworkers do manage to visit their foster children in person, the interaction is likely to be extremely brief. As a reference point, one foster parent of seven years reported that caseworkers visiting the home typically spent no more than five minutes with each child. Though caseworkers are required to conduct faceto-face meetings with their children in private, foster children report that they are frequently interviewed in the presence of their caregiver and other children. As a result, reporting issues or abuse—already a difficult and
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No. 18-40057 intimidating task for vulnerable children—becomes near-impossible. Under these conditions, it is entirely unsurprising that children struggle to establish meaningful, productive relationships with their caseworkers. Children do not trust their caseworkers to follow-up on problems or to keep them safe.
Moreover, because of turnover, children are cycled through multiple caseworkers.28 In some cases, children do not even know who their caseworker is. This further inhibits the development of a trusting relationship in which children feel safe communicating their needs or reporting abuse. Former foster child Patricia Virgil, who had a total of 10 caseworkers throughout her seven years in DFPS custody, explained that because her caseworkers changed so frequently, “whenever I had issues in some of the homes, I didn’t know who to go to, I didn’t know who to trust and so I just—most of the time I just kept my mouth shut.” Though she attempted to report being sexually abused at one of her foster homes—apparently through some sort of central DFPS phone line rather than to her absent caseworker—no one from the agency ever followed up on the investigation, and her caseworker never once visited her at that placement.
In many instances, caseworkers lack the time to be thorough when evaluating the safety or appropriateness of a placement on the front-end. This means that important red flags may get overlooked. Even assuming that a “red flag” regarding a placement has been documented, a caseworker would have to navigate tens of thousands of pages of records that are scattered across multiple databases and paper files that are not consistently maintained chronologically in order to stumble upon it. And because records and case files are outdated and woefully incomplete, there is no guarantee the information
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28 Children exiting foster care in 2008 after spending three years or more in the PMC had an average of 6.39 caseworkers. There is no evidence that this number has been significantly reduced.
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No. 18-40057 caseworkers’ need was ever recorded in the first place. Caseworkers do not have the time to perform fundamental aspects of their job; clearly, they do not have the bandwidth to replicate a needle-in-a-haystack search several times over for each individual child every time they have to move him. This limited ability to rigorously evaluate placement choices and permanency plans substantially increases the chance that a child will be exposed to serious safety risks. The risk is further compounded by the fact that DFPS does not centrally track child-on-child abuse and that RCCL investigations have an exceedingly high error rate.
The evidence in the record establishes that the State is deliberately indifferent to the risks posed by its policies and practices toward caseload management. The State is well-aware that caseworkers have unmanageable workloads. It also knows that high caseloads—which are a direct cause of high turnover rates—have a negative impact on PMC children’s welfare. Numerous reports, internal audits, and comprehensive studies of the system conducted over several years—including some that were commissioned by DFPS itself— have informed the agency that caseloads are too high and that, as a result, children are at a greater risk of harm. The findings and recommendations have been replicated repeatedly over the past two decades. Every single one of the reports in the record identifies unmanageably high caseloads as one of the most urgent problems DFPS faces and explicitly warns that high caseloads compromise caseworkers’ ability to keep children safe.
DFPS has also been cautioned recurrently since 1996 that high turnover rates exacerbate the caseload problem and contribute to the agency’s inability to provide quality services to the children and families in its care. The reports themselves acknowledge that they tend to merely reiterate the problems and potential solutions that have been proffered to the agency time and time again.
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No. 18-40057 As the Texas Adoption Review Committee lamented,29 “[s]adly . . . many of the same problems identified in 1996 still exist in the current child welfare system in Texas,” and, as a result, “[m]any of our recommendations are, sadly, ones that have been made in prior years.”
DFPS has repeatedly acknowledged that high caseloads cause the quality of casework to suffer and put foster children at an increased risk of harm. Legislative appropriations requests regularly state that caseload increases result in “significant” child safety issues. Top DFPS officials, including former Commissioner Specia, admit that there is a causal connection between high caseloads and negative safety outcomes for children. DFPS is also aware that frequent turnover exacerbates the workload problem and further threatens child safety and well-being. The State does not contend that DFPS was unaware of the numerous reports in the record. Indeed, it cites two of them several times in its brief on appeal. Many reports were directly commissioned by the Texas legislature or the judiciary. Commissioner Specia himself was on the policy development team for the 2010 Texas Appleseed Report30 before he was appointed to lead DFPS.
The State contends that DFPS is actively managing caseloads and making improvements to its workforce. Reasonable steps to cure the problem, even if ultimately ineffective, would negate the district court’s finding that the State was deliberately indifferent to the risk of harm. See Farmer, 511 U.S. at 844. The State contends that DFPS has taken several steps to address the risks associated with high caseloads, including hiring more caseworkers, employing secondary workers and support staff, and initiating a new program to improve
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29 The Texas Adoption Review Committee was created by former Governor Rick Perry to take a “hard look” at the Texas foster care system.
30 Texas Appleseed is a nonprofit organization with a focus on child-welfare. The 2010 report was commissioned by the Supreme Court of Texas Permanent Judicial Commission for Children, Youth, and Families.
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No. 18-40057 caseworker training. Under the circumstances, none of these steps constitute a “reasonable” response to the systemic issues.
The most fundamental problem DFPS faces with respect to addressing the caseload issue is the lack of informative workload data or internal agency caseload standards. McCall—who is the individual tasked with ensuring that CVS caseworkers have manageable caseloads—admitted at trial that she had “no idea what size of child caseload [] conservatorship workers should have in order to do their jobs properly.” She conceded that she had never even attempted to count the number of children, on average, that each CVS caseworker is responsible for. Indeed, at the time of trial, DFPS had not performed a comprehensive workload study in over a decade. Despite being explicitly informed by the State Auditor’s Office in 2009 that the 2004 study was outdated and should be redone, “DFPS did not implement this recommendation and continues to use the 2004 information.”
In response to the district court’s 2015 liability opinion, DFPS provided the Special Masters with a limited workload survey conducted from August 2015 to March 2016 which purported only to estimate how much time was actually spent on casework during that time period. It made no attempt to quantify how much time caseworkers should be spending on casework or how many cases a caseworker could safely manage. Despite being reprimanded by the district court in 2015 for its inclusion of ISY workers in its workload estimates, DFPS again included ISY workers in its 2016 study. The Special Masters extrapolated from the data DFPS provided that an average caseworker has adequate time to manage 14 PMC cases at one time, to the exclusion of TMC cases. When the Special Masters asked DFPS to determine how many additional caseworkers it would need to achieve workloads of 14 children per caseworker, DFPS declined to provide the information, responding that it was “not feasible” to do so.
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No. 18-40057 The district court was prepared to consider caseload standards promulgated by the agency, but DFPS did not have any. The Special Masters were prepared to work with DFPS to develop standards, but DFPS declined to do so. DFPS’s response to inquiries regarding appropriate workload levels is, essentially, that the volume of cases an individual caseworker can shoulder is dependent on a number of different variables, including the complexity of the cases and the caseworker’s level of experience. This is undoubtedly true. But the fact that caseworkers’ workload capacities will vary, on an individual basis, according to the types of cases a caseworker is assigned does not obviate the need for general guidelines that identify an appropriate caseload range.31 The lack of agency standards colors the lens through which we view the steps DFPS claims it has taken toward addressing the caseload management problem. For example, the district court took judicial notice of the fact that the legislature approved DFPS’s request for additional caseworkers and salary increases. Considered in a vacuum, asking for more money to hire more people seems logical. But DFPS has included a request for more money to hire caseworkers in every appropriations request it has submitted to the legislature in the past two decades—it is a standard, boilerplate request. And, of course, DFPS has no choice but to continually hire more caseworkers every year. The number of children in DFPS custody is steadily increasing. Moreover, because of turnover, DFPS has to replenish roughly a quarter of its caseworker
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31 We agree with the State that DFPS should be afforded a fair amount of flexibility to vary caseloads on an individual basis based on factors such as case complexity and caseworker experience. For that reason, caseload caps are an ill-advised solution. Again, however, the need for flexibility does not absolve DFPS of the responsibility to determine how many cases, generally, an average caseworker is able to safely handle.
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No. 18-40057 workforce every year in addition to the staff necessary to accommodate the influx of more children.32
Simply adding more employees has continually proven ineffectual. Highvolume hiring is not a solution. Critically, because of the lack of internal standards, DFPS does not even know how many caseworkers it actually needs to reduce the caseloads to safe levels. Without a target number, the agency is hiring blind. Lastly, while DFPS focuses primarily on high-volume hiring to fill the gaps left by the mass exodus of caseworkers every year, it repeatedly fails to address the internal management issues that motivate many caseworkers to leave so quickly after joining CPS. Thus, not only is a portion of DFPS’s yearly budget allocated by the state legislature to hire more workers and reduce caseloads effectively wasted, but the underlying problem remains unsolved.
The State points to DFPS’s use of secondary workers as evidence that it has made a reasonable effort to alleviate the burden on caseworkers. The district court was entitled to find that the risks associated with overburdened caseworkers were not sufficiently mitigated by these secondary workers, particularly ISY workers.33 ISY workers are not nearly as intimately involved with an individual child’s case as is a primary caseworker. They do not participate in a child’s long-term placement plan nor are they required to do any follow up on the child’s needs. Many primary caseworkers have never met
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32 And DFPS generally requests the bare minimum: money for enough caseworkers to maintain current caseloads and preserve the status quo.
33 The other secondary workers the State points to are akin to support staff. Most of them have distinct roles within DFPS and perform some ancillary duties related to those performed by caseworkers. That DFPS employs a single “developmental disability specialist,” for example, may relieve the caseworker of the additional task of being a subject matter expert on certain developmental disabilities, but that single employee is not shouldering an appreciable portion of caseworkers’ workloads. Many secondary workers never interact with foster children at all. They are not performing the same functions as caseworkers, and they are an insufficient substitute.
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No. 18-40057 a single ISY worker face-to-face. Children will often have a different ISY worker every visit, and their primary responsibility is to make sure that the child “is still there.” Current and former foster children testified at trial that ISY workers’ visits were rarely private and frequently cursory and superficial. Rarely—if ever—do children establish a meaningful bond with an ISY worker. Moreover, ISY workers typically have 60 to 70 children on their caseload per month. Given this caseload volume, it’s a wonder ISY workers have time to show up everywhere they need to be on a given day and check an attendance box. It may be the case that ISY workers increase the odds that a foster child will encounter a “live” individual associated with DFPS on a semi-regular basis, but they are by no means an adequate or “reasonable” substitute for primary caseworkers.
The State also cites an initiative called “Transformation” as evidence that it has taken reasonable steps to address the problem associated with excessive caseloads and caseworker burnout. The district court’s refusal to credit Transformation as DFPS “action” negating deliberate indifference is entirely understandable. To begin with, Transformation was conveniently rolled out six weeks before trial—more than three years after this lawsuit was initiated and almost two decades after the 1996 GCPA report identified turnover and burnout as critical issues plaguing the agency. Unsurprisingly, at the time of trial, DFPS was able to provide the district court only an outline of its general plans for the program and could offer no data whatsoever on actual or even expected impact. Critically, Transformation does not include concrete plans for a comprehensive CVS workload study, nor does it contemplate establishing guidelines with respect to appropriate caseload ranges. Thus, Transformation self-consciously fails to address a fundamental problem plaguing caseload management: the lack of adequate data and standards.
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No. 18-40057
While Transformation apparently includes some sort of revamped
training programs for new caseworkers, testimony from DFPS personnel
intimately involved with the program indicates that the program was still in an embryonic stage.34 The CFSR final report that was issued a year after the
Transformation was initiated noted that “[g]iven the length of time the new
training has been in effect, there was limited data and information available”
regarding the program’s efficacy. It also stated, again after noting “numerous
concerns regarding the quality of the state’s self-assessment of its case
practices and the accuracy of its case ratings,” that “[c]rosscutting concerns . .
. include continued high rates of caseworker turnover.” When pressed by the
district court to explain why, when DFPS has had “internal reviews . . . for
years that have said the same thing and nothing was ever done,”
Transformation had suddenly appeared as an alleged magical solution, DFPS was unable to provide a clear explanation.35 Under the circumstances, the
district court’s skepticism was entirely warranted.
DFPS’s relative lack of responsiveness, which is well documented by the
district court, suggests it refuses to address a systemic deficiency in the way it
manages its caseworkers. Moreover, while it is aware merely adding more
caseworkers won’t treat the underlying issue, it wants to be able to point to a
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34 We note that the panel gave both parties the opportunity to file additional pleadings, including material regarding any progress DFPS has made toward remedying the district court’s concerns. See M.D. v. Abbott, 18-40057, Doc. No. 00514395622 (Order dated March 21, 2018). Presumably, the State now has some data regarding Transformation’s continued development. Neither party filed any new pleadings. M.D. v. Abbott, 18-40057, Doc. No. 00514395622 (Order dated March 21, 2018).
35 We note also that studies found DFPS’s approach to policy implementation highly problematic as a general matter. New policies originate from various parts of the agency and often lack adequate implementation instructions or a clear point of authority for overseeing the changes. There is no front-end process to assist employees in evaluating the urgency of implementing the new policy and no back-end process for evaluating its effectiveness. The several layers of new policies implemented since 2004 actually complicate caseworkers’ jobs, forcing them to navigate tangled and sometimes inconsistent compliance requirements.
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No. 18-40057 nominal fix. DFPS has repeatedly failed to adequately address the known caseload management shortcomings over the last several decades. The district court did not clearly err in concluding that DFPS’s response was not reasonable given its knowledge of the extent of the problem and that it was deliberately indifferent.
The State also contests the district court’s causation analysis, arguing that the quality and volume of the evidence was insufficient to establish: 1) that high caseloads cause an increased risk of serious harm; and 2) that DFPS caseloads are, in fact, too high. These arguments are disposed of by our lengthy discussion of the caseload management problems and their effects above. There is ample evidence in the record establishing that caseloads are extremely high and that there is a direct causal link between high caseloads and an increased risk of serious harm to foster children.
The State asserts, however, that the district court failed to adequately quantify the risk of harm. But the experiences of the named plaintiffs and testimony from former foster children, caseworkers, attorneys ad litem, and experts indicate that abuse is exceedingly common.36 Several witnesses also testified that because children don’t have meaningful, face-to-face access to their caseworkers, abuse frequently goes unreported or uninvestigated. If children face a legitimate risk of being abused in the system as a baseline matter, and this risk is significantly exacerbated by overworked caseworkers, unreliable abuse statistics, and high error rates for abuse investigations, the risk becomes “objectively intolerable.” Farmer, 511 U.S. at 846.
The district court had a mountain of evidence at its disposal, and it enjoys ample discretion to credit certain evidence and expert testimony. See,
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36 Moreover, any abuse statistics provided by the State are likely to be artificially low—after all, the rates do not account for the fact that abuse is underreported or for childon-child abuse.
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No. 18-40057 e.g., James, 577 F.3d at 619; Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). That a policy or practice of maintaining overburdened caseworkers directly causes all PMC children to be exposed to a serious risk of physical and psychological harm is adequately supported by the facts in the record. Moreover, the principle seems obvious: when workloads exceed caseworker bandwidth, caseworkers are not able to effectively safeguard children’s health and well-being. See Hope, 536 U.S. at 737. The State’s inadequate response in the face of these problems was a violation of its duty to the children in its care.
2. Monitoring and Oversight: LFC Subclass There are three critical problems with DFPS’s policies and practices regarding monitoring and oversight. First, deficient investigatory practices have yielded a high error rate in abuse investigations. Second, DFPS does not centrally track instances of child-on-child abuse. Lastly, RCCL maintains inadequate enforcement policies. All three problems contribute to an increased risk of serious harm to the LFC subclass. The record establishes that RCCL has an alarmingly high investigatory error rate.37 In 2014, PMU reviewed a random sample of physical abuse investigations that had occurred between 2012 and 2010 and that resulted in a UTD disposition. It found that 64.6% of the reviewed abuse cases were incorrectly determined to be UTD. Almost all of the dispositions had been reviewed by a superior, but 66.7% had been incorrectly approved. 35.5% of the incorrect UTD dispositions should have been RTB. A second review of a larger random sample of UTD dispositions found the rate of error to be even higher—
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37 Again, RCCL investigates any reports of neglect and abuse. The Performance Management Unit (“PMU”) is responsible for internal quality control for all of DFPS. Abuse investigations are ascribed one of four outcomes upon completion: 1) Reason to Believe (“RTB”); 2) Ruled Out (“RO”); 3) Unable to Determine (“UTD”); or 4) Administrative Closure.
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No. 18-40057 roughly 75%. Many of the incorrect dispositions involved injuries that required medical attention. Despite the fact that RCCL found several substantiated cases of abuse buried in the random sample of UTD dispositions, DFPS took no action to move any of the children, no penalties were enacted, and no licenses were revoked. Children were left in homes and facilities where DFPS knew there was a serious possibility they were being abused. Some of the incorrect UTD dispositions were related to “negligent supervision”—which is often DFPS code for an abuse allegation involving another child. 82% of these negligent supervision UTDs were incorrect.
Nonwithstanding its discovery regarding the UTD determinations, RCCL did not undertake to perform a similar audit of the investigations resulting in an RO or an RTB disposition. The vast majority of RCCL abuse investigations result in an RO disposition. As a comparator, during one expert’s tenure as a quality control director for social services in Tennessee, the percentage of investigations resulting in an RO disposition was between 20 and 30% lower than RCCL numbers. The State’s own licensing expert admitted that RCCL’s very low abuse substantiation rate was concerning and that it “raised questions” for her. The district court found the likelihood was high that RO dispositions suffer from an error rate comparable to the UTD pool. The Director of RCCL claimed that the RO dispositions are probably less worrisome because “preponderance is a little more clear cut than it is for a UTD finding.” As the district court correctly pointed out, however, “that explanation does not account for the fact that the investigators in question were failing to interview all of the necessary parties, ask pertinent questions, gather all evidence and key information, and address risks.”38 In other words, the main issue with the
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38 The district court also noted that, like CVS caseworkers, RCCL investigators are seriously overburdened. The number of investigators has steadily declined despite the fact that the number of investigations has remained relatively constant. Though the primary
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No. 18-40057 investigations was not merely that there was competing evidence or that reports were uncorroborated. Rather, the information gathering process was fundamentally flawed.39
Of course, the abuse investigation error statistics capture a problem that plagues the subset of instances in which abuse is actually reported and—at least nominally—investigated. But, again, the evidence in the record indicates that abuse is underreported. Several former foster children testified that they did not know how to report abuse or whom they should tell. Even if children knew whom to call, many are so distrustful of the system that they are unlikely to feel comfortable reporting abuse. Worse yet, reports of abuse may receive only cursory RCCL follow-up, and some are never investigated at all. This means that children could make an abuse outcry and then languish in the offending placement indefinitely. As former foster child Kristopher Sharp explained, “[w]e didn’t feel safe in placements and then nothing happened, and so—I mean, why—why would you go through the process of even thinking that something would happen if you were to report something like this?” Under these circumstances, it is unsurprising that many children choose the path of least resistance and stay silent.
The available abuse statistics are further warped by the fact that DFPS does not track child-on-child abuse. If DFPS receives a report that a child has been abused in some way by another foster child, the incident is investigated as “negligent supervision” on the part of the caregiver. This means that there
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cause of deficient investigations seems to be a substantial breakdown of the investigatory process at the procedural level, excessive workload is undoubtedly a contributing factor.
39 Attorney ad litem Anna Ricker testified at trial that she twice reported a foster care facility in Levelland, Texas for abuse and neglect after she observed several concerning injuries on her client and other children, many of whom were nonverbal and intellectually disabled. She also reported that the facility was filthy and ill-kept and that her client’s personal hygiene was seriously deficient. RCCL ultimately Ruled Out abuse and neglect without even contacting Ricker to follow-up on her observations.
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No. 18-40057 is no centralized record that tracks which children in DFPS custody have a history of physical or sexual abuse. The only place this information would potentially be recorded is in the casefile for that individual foster child. If caseworkers want to find out whether a child will be safe from abuse by another child in a particular home or facility, they would have to dig through thousands of pages of individual records to confirm that no one else at that placement has a history of abusing other children. And individual abuse records may be incomplete. For example, named plaintiffs J.S. and D.I. were both sexually abused by other children in their placements who had a history of perpetrating abuse. A later investigation into the individual records for one of the abusers revealed old notations of a previous, similar incident involving that child, but the other’s casefile noted only that he had suffered parental abuse before entering DFPS custody. In short, because the pertinent information was inaccessible or entirely unavailable, both J.S. and D.I. were unwittingly placed in foster homes in which there was a high probability that they would be exposed to sexual abuse by another child.
RCCL enforcement practices are also problematic. RCCL issues thousands of citations for violations per year. Of the 6,050 violations cited in 2013, however, only 12 resulted in a corrective action and only one resulted an adverse action. Only one facility has been closed in the last five years—the Daystar Facility, where four children had died. Between 1993 and 2002, there were three deaths due to asphyxiation that resulted from physical restraints. There were numerous reports of physical, sexual, and psychological abuse associated with the facility. But its license was not revoked until 2011, several months after a fourth child’s death was ruled a homicide by asphyxiation due to physical restraints.
Daystar is a particularly tragic example. Nevertheless, studies and reports that DFPS was indisputably aware of—the State cites them in its own
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No. 18-40057 briefing on multiple occasions—stated that its “collaborative” approach to compliance was simply not working. This is evidenced by the fact that there is a very high rate of repeat violations, as licensees do not perceive that they will be held accountable for their malfeasance. Repeat violators are not a new phenomenon. In 2011, PMU found that 65.6% of residential care facilities had been cited for repeat deficiencies. By 2012, that number had leapt to 77.6%. And the collaborative approach can take up to a year or longer to achieve compliance. As a result, children are left in facilities that repeatedly violate standards while the state attempts to “collaborate” with the facility. As the Sunset Commission explained, “to go slow on enforcing regulations designed to protect children from safety risks out of concern that some providers may have trouble meeting such protective standards is essentially to accept a level of risk to the children simply because the state needs providers, regardless of their quality.” Most of the repeat violations occurred on the highest-risk standards, such as criminal history check requirements.
The State had knowledge of these problems. Moreover, that high error rates in abuse investigations and inadequate enforcement policies place children at a substantial risk of serious harm seems painfully obvious. See Hope, 536 U.S. at 737; Farmer, 511 U.S. at 842. Reports regarding RCCL’s investigatory shortcomings date back over a decade. These deficiencies have been periodically reiterated to the agency. The Director of RCCL participated in the review of the UTD dispositions. The Assistant Commissioner of CCL confirmed that the error findings were reported all the way up the chain of command to Commissioner Specia. The State has elsewhere relied in part on various reports that include critiques of its enforcement practices throughout the litigation.
Yet DFPS has not done any significant work to improve on these deficiencies. DFPS apparently held a mandatory one-day meeting to impress
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No. 18-40057 upon its staff the importance of maintaining high standards for investigations, but RCCL policies and procedures apparently remained unchanged. Similarly, reports have consistently flagged inadequate oversight in licensing and enforcement as a critical problem area. But DFPS rarely heeds the advice of risk analysts to impose administrative penalties and ignores recommendations from the internal quality control experts at PMU to revoke licenses at noncompliant facilities.
In short, DFPS is aware of the systemic deficiencies plaguing its monitoring and oversight practices. It also knows that these deficiencies pose a significant safety risk for foster children. Despite this knowledge, DFPS has not taken reasonable steps to cure the problems. Indeed, it is not clear that it has taken any steps at all. The district court correctly found that the State was deliberately indifferent to a substantial risk of serious harm to the LFC subclass as a result of its insufficient monitoring and oversight, and that these deficiencies are a direct cause of the constitutional harm.
3. Placement Array: LFC Subclass The district court noted that, because of what amounted to practical limitations on placement availability, children are frequently placed out of region or are separated from their siblings. Furthermore, children are placed in facilities that are not necessarily appropriate for their service level or needs. Sexually aggressive children are not always placed in single-child homes or highly supervised environments.40
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40 The State is not constitutionally required to place every child that has been sexualized through abuse or otherwise in a single family home. Indeed, many of them may benefit from a structured GRO environment or from therapeutic treatment at an RCL. To the extent children are being blindly placed with sexually aggressive children that pose a serious risk to their bodily integrity because caseworkers don’t have the time or the information they need to make an informed placement decision, the issue is more aptly addressed through DFPS’s policies toward caseloads and caseworkers and the failure to flag child-on-child abuse appropriately.
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No. 18-40057 Certainly, placing a child in-region, in a placement ideal for his service level and personal needs, or with his siblings when appropriate would be good practice. Plaintiffs have failed to demonstrate, however, that failing to do so in most or all circumstances puts children at a risk of harm serious enough to amount to a deprivation of their substantive due process rights. There is no “responsibility to [] maximize[] [foster children’s] personal psychological development,” Griffith, 899 F.2d at 1439, and children have no “right to a stable environment” or a right “not to be moved from home to home,” despite the “significant literature which indicates a traumatic effect of such moves on young children.” Drummond, 563 F.2d at 1208. Even accepting the district court’s—undoubtedly correct—finding that out-of-region placements and suboptimal placement settings can have negative effects on a child’s psychological health, those negative effects are not constitutionally cognizable harms. See, e.g., Feagley, 868 F.2d at 1441. Unlike severely overburdened caseworkers or inadequate investigations and placement licensing, inadequate placement array does not unacceptably increase the risk that a child will be exposed to serious physical or psychological harm. Importantly, the availability of foster homes, particularly those that provide the most “home-like,” “least-restrictive” environments, is something uniquely out of the State’s control. Of course, an increase in funding that would allow DFPS to pay more potential foster families and may improve recruitment efforts, but DFPS cannot force people to volunteer. Regional availability in particular is affected by the population sizes of the counties in that region, the volume of children being removed from their homes in a particular county or region, and the ratio of rural to urban communities. Moreover, as the district court noted in Connor B., “neither bolstering the administrative ranks nor obtaining the requisite number of foster homes will resolve the ongoing
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No. 18-40057 placement challenges related to ensuring a child’s unique fit with a prospective placement.” 985 F. Supp. 2d at 144.
Even if the policies toward its placement array were somehow constitutionally infirm, the district court erred in concluding that the State was deliberately indifferent. Specifically, the State has evinced at least some concerted effort to remedy the problem. “Foster Care Redesign” (“Redesign”), which was initiated in 2010, does away with the “open enrollment” system previously in place with DFPS’s private providers. While “open enrollment” essentially allows private providers to run operations wherever they choose, Redesign contracts with Single Source Continuum Contractors which provide a full range of services tailored to meet the needs of a particular geographic area. According to the State, Redesign will allow DFPS more control over the geographic distribution of its placements, and will be responsive to service needs in a specific region.
In finding that Redesign did not suffice to demonstrate that the State responded reasonably to the risk, the district court stated that it was “encouraged by the idea . . . but discouraged by its results.” It noted that, at the time of the final order, Redesign was operating in less than 2% of Texas. It is true that Redesign has taken a while to get off the ground, and the pilot contract with the first service provider was unsuccessful. Since then, however, the State has entered into new contracts that have adjusted for some of the issues the State encountered in its pilot roll-out. The legislature recently granted DFPS authorization to expand Redesign to three new regions.
Redesign is still a fairly new and innovative program. But slow roll-out of an unprecedented style of managing private contractors makes sense for a number of reasons. As the plaintiffs themselves noted in their comments regarding the Special Master’s Implementation plan, it is difficult to know whether the model—which increases reliance on private contractors—will
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No. 18-40057 maintain sufficient safeguards. Consequently, slow, measured, implementation with adequate time to assess the program’s ability to properly safeguard children’s welfare is prudent. Additionally, rolling out the program in stages allows the agency to adapt to provider feedback and improve implementation in other areas.
That Redesign has been met with limited success is of no moment. Cf. Farmer, 511 U.S. at 844. Limited placement array is a uniquely complicated problem. The State is thinking creatively and attempting to address the issue with placement distribution. Redesign may not be the answer, but it’s hardly what the district court called a “half-baked” attempt to remedy a complex problem.
Accordingly, the district court erred in concluding that inadequate placement array causes constitutionally cognizable harm to the LFC subclass and that the State was deliberately indifferent to a substantial risk of serious harm.
4. Foster Group Homes: FGH Subclass The district court found that a combination of a lack of policies against mixing children of various ages, sexes, and service levels and insufficient oversight rendered FGHs intolerably unsafe. In many cases, FGHs contain more children than traditional foster family homes and could be “hectic.” FGHs generally have the same number of caregivers as foster family homes. The district court found that the “most egregious problem” was that FGHs lacked 24-hour awake-night supervision. Essentially, the district court reasoned, FGHs “simultaneously provide[] fewer benefits than foster family homes and fewer safeguards than congregate care facilities.” There are several issues with the district court’s analysis. To begin with, there is a critical causal flaw. The district court does not, for example, identify
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No. 18-40057 how mixing ages, sexes, and service levels41 in FGHs is significantly different from doing so in foster family homes—other than that there were more children to keep track of and the ratio of supervisors to children is lower in FGHs. It notes that DFPS allows for young girls and teenage boys to be placed together, but again does not explain how this is different from its policies toward foster family homes, which are not constitutionally defective. Moreover, plaintiffs’ expert’s analysis was flawed. It focused on the risk present when a number of unrelated children are placed together; indeed, this was a key qualifier of her opinion on the risk of harm in FGHs. But the data she used did not indicate whether some of the data on FGH age ranges could be accounted for by the fact that sibling groups were placed together. Notably, it is undisputed that FGHs are a critical placement option for large sibling groups DFPS is attempting to keep together.
DFPS has also remedied what the district court called the “most egregious” problem with FGHs. When the State appealed the district court’s initial grant of injunctive relief, this court construed the district court’s mandate narrowly to demand DFPS require 24-hour supervision in FGHs and denied the stay. There is no dispute that the State appears to be complying with that mandate. The emphasis on awake-night monitoring indicates that the primary concern is not the “mixing” component; instead, lack of adequate supervision makes the mixing of age, sex, and service levels a less safe practice.
In sum, plaintiffs’ have failed to articulate how and to what degree the mixing of children of different ages and service levels—a policy that is constitutionally tolerable in similar circumstances—amplifies the risk of harm
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41 Again, to the extent children are being blindly placed with sexually abusive children that pose a serious risk to their bodily integrity because caseworkers don’t have the time or the information they need to make an informed placement decision, that issue is more closely related to DFPS’s policy toward caseloads and caseworkers, insufficient monitoring and oversight, and the failure to flag child-on-child abuse appropriately.
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No. 18-40057
to children absent the corresponding problem regarding supervision. Though
there may be risks to combining children with different needs in a single living
space, doing so is not per se unconstitutional—all states do so in a variety of
different settings in a way that avoids violating children’s rights. To the extent
that the lack of awake-night supervision may have sustained a constitutional
claim under the circumstances, the remaining policies and their effects do not
cause FGH children an amplified risk of harm sufficient to overcome the
threshold hurdle.
V. Class Certification
The State devotes half a page in its nearly 100-page brief to its class
certification argument. It incorporates by reference its general claim that
plaintiffs have failed to demonstrate class-wide harm and thus that the district
court abused its discretion in certifying the General and Subclasses. The State
does not brief any other Rule 23-specific arguments. While the State mentions
in passing “the unavailability of appropriate single-stroke injunctive relief” it
references only prior sections in its brief that recount its unrelated objections
to the sufficiency of the evidence and the district court’s fact-finding.
Accordingly, this and other Rule 23-specific arguments are waived for failure
to adequately brief them. See United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989).42
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42 For example, the State does not contend that the named plaintiffs are no longer viable class representatives. In any case, the district court did not abuse its discretion in determining that the other requirements of Rule 23(b)(2) had been met. Its finding that plaintiffs had satisfied commonality because their claims “depend[ed] upon a common contention . . . that is capable of classwide resolution” is adequately supported by the record. See M.D. I, 675 F.3d at 838 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Similarly, there was sufficient evidence establishing the individual plaintiffs’ claims were “typical of the class claims.” Dukes, 564 U.S. at 353 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157–58 (1982)). Lastly, the district court correctly concluded that the named plaintiffs were adequate representatives who would “take an active role in and control the litigation to protect the interests of the absentees.” Stirman v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002).
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No. 18-40057 We understand the State to be primarily arguing that certification was improper because the class members have not been “harmed in essentially the same way.” Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir. 2007). Because we conclude that the State’s policies with respect to caseload management, monitoring, and oversight violate plaintiffs’ right to be free from a substantial risk of serious harm on a class-wide basis, we hold that the General Class and the LFC subclass were properly certified. However, the district court erred in concluding that foster group homes violate plaintiffs’ due process right and that the FGH subclass suffers class-wide constitutional harm. Accordingly, the FGH subclass must be decertified. Our liability findings obviate the need for further discussion of the class certification issue. VI. The Remedy The district court entered an expansive injunction mandating dozens of specific remedial measures. While the district court was entitled to grant the plaintiffs injunctive relief, the injunction is significantly overbroad. Accordingly, we VACATE the injunction and REMAND with instructions to remove the remedial provisions related to placement array and FGHs, and to strike provisions that are not necessary to achieve constitutional compliance. It is axiomatic that “federal courts must vigilantly enforce federal law and must not hesitate in awarding necessary relief.” Horne v. Flores, 557 U.S. 433, 450 (2009). This responsibility includes, when appropriate, issuing permanent injunctions mandating institutional reform. See id. at 448–50. In general, however, institutional reform injunctions are disfavored, as they “often raise sensitive federalism concerns” and they “commonly involve[] areas of core state responsibility.” Id. at 448. Indeed, a sweeping permanent injunction here “commit[s] this Court to the near-perpetual oversight of an
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No. 18-40057 already-complex child-welfare regime.” Connor B., 985 F. Supp. 2d at 157. An intrusion of this scale should not be taken lightly.43
The Supreme Court has explained that remedies fashioned by the federal courts to address constitutional infirmities “must directly address and relate to the constitutional violation itself,” and “federal court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.” Milliken v. Bradley, 433 U.S. 267, 282 (1977). The district court may not, therefore, “order[] relief beyond what [is] minimally required to comport with the Constitution’s” prohibition on arbitrary deprivation of plaintiffs’ substantive due process right. Gates, 501 F.2d at 1303. Accordingly, injunctions must be “narrowly tailor[ed] . . . to remedy the specific action which gives rise to the order.” Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 586 (5th Cir. 2013) (internal quotation omitted).
But “[i]t is well-settled that, under the fourteenth amendment, a court may require remedial measures that the Constitution does not of its own force initially require.” Ruiz VII, 679 F.2d at 1155. Moreover, an injunctive remedy “does not fail narrow tailoring simply because it will have positive effects beyond the plaintiff class.” Brown v. Plata, 563 U.S. 493, 531 (2011). Accordingly, if certain mandated provisions are necessary to achieve constitutional compliance, they are not per se improper on the basis that they achieve “collateral” benefits not directly related to the appropriately identified systemic defect. See id.
While courts are required to afford the State deference in administration of its state systems and “the [first] opportunity to correct [its own] errors,” Lewis v. Casey, 518 U.S. 343, 362 (1996), these principles are less applicable
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43 Nor do we suggest the conscientious district judge took it lightly.
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No. 18-40057 where, as here, the State has had ample opportunity to cure the system’s deficiencies. The State has been aware of the district court’s concerns for several years, and the State cannot claim that the court’s mandate was unclear. It has repeatedly refused to work with the court-appointed Special Masters in creating corrective policies and largely ignored the district court’s orders that it implement policies and procedures to minimize the risk of harm to the PMC class. Moreover, the State has had a wealth of information at its disposal detailing the structural deficiencies in its foster care system since long before plaintiffs filed this lawsuit, and it has failed to take meaningful remedial action. The district court was entitled to worry about the State’s motivation to self-correct and was justified in doubting that it would achieve compliance independently.44
We understand the district court’s frustration, and we agree remedial action is appropriate. The current injunction, however, goes well beyond what is necessary to achieve constitutional compliance. Gates, 501 F.2d at 1303. And it is far from narrowly tailored. Daniels Health, 710 F.3d at 586. Many of the injunction provisions fail to address the specific problems giving rise to the constitutional violation. Others, while more closely hewed to the violative practices, aim too high. These provisions may reflect the “best practices” of the child-welfare community or the policy preferences of the district court, but they go far “beyond what [is] minimally required to comport with the Constitution’s” prohibition on arbitrary deprivation of plaintiffs’ substantive due process right. Gates, 501 F.2d at 1303.
For ease of reference, we will discuss the injunction in five “sections.” The first two sections will review injunction provisions that are directly related
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44 We note also that the State has been granted nearly one-billion dollars in additional DFPS funding. This alleviates many funding-related concerns about the injunction.
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No. 18-40057 to the caseload management and the monitoring and oversight violations. Some of these provisions are valid, but many constitute judicial overreach. The next two sections will review provisions that target the alleged placement array and foster group home violations. These provisions must be struck, as we conclude that neither of these alleged deficiencies constitutes a due process violation. The final section will discuss what can be described as “crossover” provisions, which address more than one violation simultaneously or are aimed at remedying other general ailments of the system that the district court identified. Only those crossover provisions narrowly tailored to address the caseload management and monitoring and oversight violations are proper.
Caseloads The primary issue with DFPS’s management of its caseworker caseloads is the lack of adequate data and standards. Accordingly, it is reasonable for an injunctive remedy to require the agency to generate reliable data regarding current caseloads and to establish internal guidelines that identify a flexible range of caseloads that the agency determines caseworkers can safely manage. DFPS should hire with the determined caseload range in mind. Additionally, provisions that are calculated to remedy the caseworker turnover problem are generally proper. The following provisions directly address the caseload management violation and are therefore valid: 1. Effective immediately, DFPS shall track caseloads on a child-only
basis, as ordered by the Court in December 2015. Effective immediately, DFPS shall report to the monitor(s), on a quarterly basis, caseloads for all staff, including supervisors, who provide primary case management services to children in the PMC class, whether employed by a public or private entity, and whether full-time or part-time. Data reports shall show all staff who provide case management services to children in the PMC class and their caseloads. In addition, DFPS’s quarterly reporting shall include the number and percent of staff with caseloads within, below and over the
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range of 14 to 1745 children, by office, by county, by agency (if private) and statewide. Reports will include the identification number and location of individual staff and the number of PMC children and, if any, TMC children to whom they provide case management. Caseloads for staff, as defined above, who spend part-time in caseload carrying functions and part-time in other functions must be pro-rated accordingly. The caseload range for staff with mixed caseloads, for example caseworkers serving both PMC and TMC children, shall be 14 to 17 children’s cases, and each TMC child is to be afforded the same weight as a PMC child. Reporting will be by office, by county, by agency (if private) and statewide. 2. Effective May 2018, DFPS shall ensure statewide implementation of the CPS Professional Development (CPD) training model, which DFPS began to implement in November 2015. 3. Effective May 2018, DFPS shall ensure statewide implementation of graduated caseloads for newly hired CVS caseworkers, and all other newly hired staff with the responsibility for primary case management services to children in the PMC class, whether employed by a public or private entity. One of the most controversial injunction items is the district court’s
designation of a “caseload cap.” Given the lack of internal DFPS standards and
the agency’s failure to supply the Special Masters with a caseload range it
deemed appropriate and safe, the district court essentially adopted national
caseload standards and imposed a mandatory caseload range of 14 to 17
children. While caseload caps strike at the heart of the workload problem, we
agree with the State that they are too blunt a remedy for a complex problem.
They constitute “relief beyond what [is] minimally required” to remedy the
constitutional violation. Gates, 501 F.2d at 1303
To begin with, caps would only exacerbate DFPS’s staffing crisis in the
short-term. Setting aside the fact that imposing a ceiling is logistically
impossible given the staffing constraints, it would also generate a deluge of
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45 For reasons that will be explained more thoroughly below, references to a caseload cap or an enforced caseload range are improper. To the extent otherwise valid provisions reference caseload caps, these caps shall be deleted from those provisions.
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No. 18-40057 paperwork and force DFPS to rapidly redistribute cases among its caseworkers. This would undoubtedly be destabilizing for all of the parties involved, including the children in DFPS’s care. Caps also fail to account for the fact that two caseloads that each consist of, say, 16 children can generate vastly different amounts of work. A more flexible method of distributing caseloads that takes into account the complexity of the cases and the experience of the caseworker (and taking into consideration, inter alia, a long list of possible factors such as travel distances and language barriers) is, as a general matter, a sound policy. DFPS absolutely should determine how many cases, on average, caseworkers are able to safely carry. Based on its determination, DFPS should establish generally applicable, internal caseload standards. These standards should serve as a rough guide for supervisors who are handling caseload distribution, and they should inform DFPS’s hiring goals. But a hard cap on caseloads would completely hamstring DFPS’s ability to approach caseload distribution in a holistic, nuanced way. In short, mandatory caps are not only an extreme remedy, they are imprecise.
Several other caseload-specific injunction provisions are also improper, as they either exceed what is required to achieve constitutional compliance or do not directly address the problems giving rise to the caseload management violation. Moreover, some provisions would unnecessarily add to the volume of work for which caseworkers are responsible, and would increase the time spent managing paperwork and compliance and administrative burdens. The following provisions are invalid:
1. Effective June 2018, DFPS shall ensure that the full-time staff, including supervisors, who provide case management services to children in the PMC class, whether employed by a public or private entity, have a caseload within or below the range of 14 to 17 children. Caseloads for staff must be pro-rated for those who are less than fulltime. Caseloads for staff who spend part-time in caseload carrying work and part-time in other functions must be pro-rated accordingly. 55

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The caseload range for staff with mixed caseloads, for example caseworkers serving both PMC and TMC children, will also be 14 to 17 children’s cases, and each TMC child’s case will be afforded the same weight in the caseload calculation as a PMC child. 2. Effective immediately, DFPS shall commence recruiting, hiring and training staff, and ensuring any private entities that are charged by DFPS to provide case management services to children in the PMC class do the same, to ensure that staff who provide case management services to children in the PMC class, whether employed by a public or private entity, have a caseload within or below the range of14 to 17 children. 3. Effective May 2018, DFPS shall ensure that before any new CVS (or private agency) caseworker assumes primary case management responsibility for a full caseload range of 14 to 17 children, they successfully complete a comprehensive training program for new workers and pass a competency examination. 4. Effective immediately, DFPS shall ensure that monthly face-to-face visits between caseworkers and children in the PMC class occur as required. The caseworkers’ visits with children in the PMC class must include time with the child separate from the caregiver(s) and other children, if the child is verbal. Effective immediately, DFPS shall ensure that caseworkers document monthly, private meetings with eachverbal PMC child in their care, unless the reason for noncompliance is fully documented in the child’s electronic case record. 5. Effective immediately, DFPS shall ensure adequate training on its child visitation policies for all caseworkers responsible for visiting children in the PMC class. 6. Effective immediately, DFPS shall track caseworker-child visits and report quarterly to the monitor(s) on the number of monthly caseworker-child visits required and the percent and number that occurred.46 DFPS shall report for all referenced visits whether they involved face-to-face time with the child separate from the caregiver(s) and other children, if the child is verbal. 7. Effective immediately, DFPS shall ensure caseworkers who conduct visits with PMC children follow the agency’s contact guidelines, which they must document in the child’s electronic case record based on monthly visits with a child. The guidelines must require caseworkers, at least, to complete an assessment of the child’s safety, including an
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46 Notably, it appears DFPS already tracks this statistic.
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assessment of the placement; a confirmation that the child was interviewed individually, separately and privately from the caregiver and other children, if the child is verbal; a discussion of the form(s) of discipline being used in the placement; and a documented review of the child’s medical, mental health, dental and educational progress and needs. 8. DFPS shall ensure that supervisors who oversee caseworkers managing the cases of children in the PMC class have no more than seven workers assigned to them. Supervisory workloads must be prorated for supervisors who are less than full-time. Workloads for supervisors who spend part-time in supervisory work and part-time in other functions, which includes carrying a case, must be pro-rated accordingly. 9. Supervisors who oversee caseworkers serving PMC children shall not directly carry a caseload unless there is a documented emergency requiring the supervisor to do so. 10. Within 30 days of the Court’s Final Order date, DFPS shall eliminate the use of I See You secondary workers and designate all secondary workers as primary caseworkers.47
Monitoring and Oversight
Most of the injunction provisions relating exclusively to the monitoring
and oversight violation are reasonably targeted toward remedying the
identified issues. The following provisions are valid:
1. DFPS shall ensure that reported allegations of child abuse and neglect involving children in the PMC class are investigated; commenced and completed on time consistent with the Court’s Final Order; and conducted taking into account at all times the child’s safety needs. The monitor(s) shall periodically review the statewide system for appropriately receiving, screening and investigating reports of abuse
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47 We do not understand the logic of this provision. The district court made clear that secondary workers were inappropriate substitutes for caseworkers because they had significantly less responsibilities and carried large caseloads. Furthermore, it is not clear that all of these workers are equipped to be caseworkers (or even that they want to). It seems somewhat bizarre to force DFPS to absorb all of its secondary caseworkers onto its primary team.
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and neglect involving children in the PMC class to ensure the investigations of all reports are commenced and completed on time consistent with Items 9-16 of this Section of the Court’s Final Order and conducted taking into account at all times the child’s safety needs. 2. Effective May 2018, DFPS shall ensure that all caseworkers and caregivers are trained to recognize and report sexual abuse, including child on child sexual abuse. 3. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with existing DFPS policies and administrative rules, initiate Priority One child abuse and neglect investigations involving children in the PMC class within 24 hours of intake. (A Priority One is by current policy assigned to an intake in which the children appear to face a safety threat of abuse or neglect that could result in death or serious harm.) 4. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with existing DFPS policies and administrative rules, initiate Priority Two child abuse and neglect investigations involving children in the PMC class within 72 hours of intake. (A Priority Two is assigned by current policy to any CPS intake in which the children appear to face a safety threat that could result in substantial harm.) 5. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with DFPS policies and administrative rules, complete required initial face-to-face contact with the alleged child victim(s) in Priority One child abuse and neglect investigations involving PMC children as soon as possible but no later than 24 hours after intake. 6. Effective March 2018 and ongoing thereafter, DFPS shall, in accordance with DFPS policies and administrative rules, complete required initial face-to-face contact with the alleged child victim(s) in Priority Two child abuse and neglect investigations involving PMC children as soon as possible but no later than 72 hours after intake. 7. Effective March 2018 and ongoing thereafter, DFPS shall track and report all child abuse and neglect investigations that are not initiated on time with face-to-face contacts with children in the PMC class, factoring in and reporting to the monitors quarterly on all authorized and approved extensions to the deadline required for initial face-toface contacts for child abuse and neglect investigations. 8. Effective March 2018, DFPS shall, in accordance with DFPS policies and administrative rules, complete Priority One and Priority Two child abuse and neglect investigations that involve children in the PMC class within 30 days of intake, unless an extension has been
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approved for good cause and documented in the investigative record. If an investigation has been extended more than once, all extensions for good cause must be documented in the investigative record. 9. Effective March 2018 and ongoing thereafter, DFPS must track and report monthly all child abuse and neglect investigations involving children in the PMC class that are not completed on time according to this Final Order. Approved extensions to the standard closure timeframe, and the reason for the extension, must be documented and tracked. If an investigation has been extended more than once, all extensions for good cause must be documented in the investigative record. 10. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, observe or interview the alleged child victims in Priority One child abuse or neglect investigations within 24 hours of intake. 11. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, observe or interview the alleged child victims in Priority Two child abuse or neglect investigations within 72 hours of intake. 12. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete Priority One and Priority Two child abuse and neglect investigations within 30 days of intake, consistent with DFPS policy. 13. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete Priority Three, Priority Four and Priority Five investigations within 60 days of intake, consistent with DFPS policy. 14. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete and submit documentation in Priority One and Priority Two investigations on the same day the investigation is completed. 15. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, complete and submit documentation in Priority Three, Priority Four and Priority Five investigations within 60 days of intake. 16. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, finalize and mail notification letters to the referent and provider(s) in Priority One and Priority Two investigations within five days of closing a child abuse and neglect investigation or completing a standards investigation.
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17. Effective immediately, the State of Texas shall ensure RCCL investigators, and any successor staff, finalize and mail notification letters to the referent(s) and provider(s) in Priority Three, Priority Four and Priority Five investigations within 60 days of intake.
18. By July 2018, RCCL, and/or any successor entity charged with inspections of child care placements, will identify, track and address concerns at facilities that show a pattern of contract or policy violations. Such facilities must be subject to heightened monitoring by DFPS and any successor entity charged with inspections of child care placements and subject to more frequent inspections, corrective actions and, as appropriate, other remedial actions under DFPS’ enforcement framework.
19. Effective immediately, RCCL and/or its successor entity, shall have the right to directly suspend or revoke the license of a placement in order to protect children in the PMC class.
20. Effective immediately, RCCL, and any successor entity charged with inspections of child care placements, must consider during the placement inspection all referrals of, and in addition all confirmed findings of, child abuse/neglect and all confirmed findings of corporal punishment occurring in the placements. During inspections, RCCL, and any successor entity charged with inspections of child care placements, must monitor placement agencies’ adherence to obligations to report suspected child abuse/neglect. When RCCL, and any successor entity charged with inspections of child care placements, discovers a lapse in reporting, it shall refer the matter to DFPS, which shall immediately investigate to determine appropriate corrective action, up to and including termination or modification of a contract.
21. Effective March 2018, DFPS shall implement within the child’s electronic case record a profile characteristic option for caseworkers or supervisors to designate PMC and TMC children as “sexually abused” in the record if the child has been confirmed to be sexually abused by an adult or another youth.
22. Effective March 2018, DFPS shall document in each child’s records all confirmed allegations of sexual abuse in which the child is the victim.
23. Effective immediately, all of a child’s caregivers must be apprised of confirmed allegations at each present and subsequent placement.
24. Effective immediately, if a child has been sexually abused by an adult or another youth, DFPS must ensure all information about sexual
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abuse is reflected in the child’s placement summary form, and common application for placement. 25. Effective immediately, all of the child’s caregivers must be apprised of confirmed allegations of sexual abuse of the child at each present and subsequent placement. 26. Effective immediately, DFPS shall ensure a child’s electronic case record documents “child sexual aggression” and “sexual behavior problem” through the profile characteristic option when a youth has sexually abused another child or is at high risk for perpetrating sexual assault. 27. Effective immediately, if sexually aggressive behavior is identified from a child, DFPS shall also ensure the information is reflected in the child’s placement summary form, and common application for placement. 28. Effective immediately, DFPS must also document in each child’s records all confirmed allegations of sexual abuse involving the child as the aggressor. 29. Effective immediately, all of the child’s caregivers must be apprised at each present and subsequent placement of confirmed allegations of sexual abuse involving the PMC child as the aggressor. 30. Within 90 days of the Court’s Final Order, DFPS shall create a clear policy on what constitutes child on child sexual abuse. Within 6 months of the Court’s Final Order, DFPS shall ensure that all staff who are responsible for making the determinations on what constitutes child on child sexual abuse are trained on the policy. 31. Effective March 2018, DFPS shall ensure that all abuse and neglect referrals to the 24-hour hotline48 regarding a foster home where any PMC child is placed, which are not referred for a child abuse and neglect investigation, are shared with the PMC child’s caseworker and the caseworker’s supervisor within 48 hours of DFPS receiving the referral. Upon receipt of the information, the PMC child’s caseworker will review the referral history of the home and assess if there are any concerns for the child’s safety or well-being, and document the same in the child’s electronic case record.
The monitoring and oversight provisions pertaining to the establishment
of the 24-hour hotline are in need of revision because they do not address the
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48 The injunction provision requiring the establishment of a new 24-hour hotline is invalid for reasons discussed below. It is, however, proper for the district court to require that RCCL promptly communicate allegations of abuse to the child’s caseworker.
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discrete issues underlying the violation: the manner in which RCCL
documents and investigates allegations of abuse. To the extent that the court
is worried about underreporting, this can be remedied by mandating that
caseworkers provide children with the appropriate point of contact for
reporting issues. The problem with RCCL follow-up is sufficiently addressed
by other valid provisions.
Other hotline-related provisions unnecessarily increase the time spent
managing administrative burdens. Mandated RCCL caseload caps are
misguided for substantially the same reasons that caseload caps are ill-advised
in the primary caseworker context. Again, however, it would be reasonable for
the court to require a comprehensive workload study and the establishment of
internal guidelines for caseload ranges based on what DFPS determines RCCL
investigators can safely manage. Lastly, requiring the State to publish all
licensing inspections on its public website is not only unnecessary, but it also
implicates confidentiality concerns. Accordingly, the following provisions are
invalid:
1. Effective immediately, DFPS shall ensure that it maintains a statewide, 24-hour hotline accessible by PMC children in DFPS custody to report abuse and neglect. The hotline shall receive, screen and assign for investigation reports of maltreatment of children in the PMC class.
2. In order to ensure that PMC children have access to the 24-hour hotline to report abuse and neglect, within 30 days of the Court’s Final Order, DFPS shall either require all foster homes and therapeutic foster homes housing PMC children to maintain a landline phone accessible to the child in the home, with the toll-free hotline number appended to the landline or, in the alternative, DFPS shall present an alternative plan to the Court within 30 days of the Court’s Final Order to ensure PMC children have access to the hotline to report abuse and neglect.
3. Effective March 2018, and ongoing thereafter, DFPS shall ensure the central case record of every child in the PMC class includes documentation confirming the method(s) discussed with the child for
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notifying DFPS if the child needs to report abuse or neglect. For children who are verbal, the documentation must include the date the reporting methods were discussed with the child and confirmation of their level of understanding. The discussion with the child must occur within 48 hours of entering any new placement. 4. Within 60 days of the Court’s Final Order, all calls to the DFPS 24hour hotline shall be recorded. All recorded calls shall be stored for at least two years using a call recording system. Recordings shall be made available to the monitor(s) for monitoring and verification purposes. 5. Effective March 2018, and ongoing thereafter, DFPS shall ensure that a well trained, experienced and qualified supervisor reviews and approves all screening decisions at the 24-hour hotline involving children in the PMC class. The monitors will conduct routine audits of screened-out reports involving children in the PMC class to confirm that DFPS conducted a complete review of the available record (including past intake reports involving the child and the placement) and due consideration was given to the risks to children when determining whether to assign a matter for investigation. 6. Effective immediately, DFPS shall ensure foster caregivers and other placement providers immediately report all allegations of sexual abuse by a child against another child to the 24-hour hotline established by DFPS to screen referrals of abuse and neglect. 7. Effective March 2018, DFPS shall document, track and report quarterly to the monitor(s) all referrals of child-on-child sexual abuse involving children in DFPS custody made to the 24-hour hotline established by DFPS to screen referrals of abuse and neglect. 8. Effective immediately and ongoing thereafter, DFPS shall report quarterly to the monitor(s) and confirm that all reports of child on child sexual abuse involving children in DFPS custody that have been referred to the 24-hour hotline have been assigned for investigation for, at minimum, neglectful supervision by the placement caregiver(s). 9. Effective May 2018, the State of Texas shall ensure the staff who investigate allegations of abuse and neglect of children in the PMC class have caseloads of no more than 14 investigations, consistent with the median caseload of investigations found in the Workload Study. Although this is twice the number of investigations the Workload Study concluded was reasonable for child abuse and neglect investigators in light of the amount of time they expend on their cases, 14 investigations shall serve as the top of their workload range.
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10. Effective immediately, DFPS shall ensure that investigations of abuse and neglect of PMC children while they are in licensed placements are conducted by staff whose caseload is exclusively focused on child maltreatment investigations.
11. Effective May 2018, the State of Texas shall ensure that the staff who conduct licensing standards investigations for alleged violations involving children in the PMC class have caseloads of no more than 14 standards investigations, consistent with the maximum caseload of standards investigations found in the Workload Study. Although this is nearly three times the number of standards investigations the Workload Study concluded was reasonable for inspectors in light of the amount of time they expend on their cases, 14 standards investigations shall serve as the top of their workload range. Caseloads for staff shall be pro-rated for those who are less than fulltime. Caseloads for staff who spend part-time in investigative work and part-time in other functions must be pro-rated accordingly.
12. Effective March 2018 and ongoing thereafter, the State of Texas shall publicly post on its website all licensing inspections by RCCL, and/or its successor entity, redacting child identifying information and other information deemed confidential under state and federal law and regulation. The posted information shall include the full narrative inspection report, the outcome of the inspection, inspection violations and whether RCCL, and/or its successor entity, implemented corrective or adverse action as a result of the violations. The posted information shall also include all corrective action plans required by RCCL and/or other successive entities and the dates RCCL and/or other successive entities accepted corrective action plans submitted by violating agencies and the status of those corrective action plans.
The injunction provisions aimed specifically at remedying the alleged
placement array and foster group home deficiencies must be struck, as the
court has determined that neither practice violates plaintiffs’ substantive due
process rights. The following provisions are invalid:
Placement Array
1. DFPS shall immediately implement a policy that establishes singlechild homes as the presumptive placement for all sexualized children, either as the aggressor or the victim. The policy also will allow for exceptions, including: placement in a therapeutic setting for treatment; placement with siblings when the safety of all children
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involved can be closely monitored and secured; a thorough and documented assessment certifies that it is in the child’s best interest to be placed in a home with other children and the safety of all children involved can be closely monitored and secured. Any exceptions applied under this policy must be approved and documented by a senior DFPS manager. 2. DFPS shall ensure it has at least as many foster home placements for children, by catchment area, by the end of FY 18 as the agency found it requires to meet the needs of children in its January 2017 Foster Care Needs Assessment, Table 5. DFPS shall report quarterly to the monitor(s) on the available supply of foster homes for children by catchment area as of the last date of the quarter. 3. By June 2018, DFPS shall complete and submit to the Court an update of its January 2017 Foster Care Needs Assessment, and include:
a. A review and assessment of the placement needs of sibling groups that are separated into different placements and children who have been identified as sexually aggressive or whose IMPACT records document their having been sexually abused.
b. Data on the number of foster homes in each county that could be readily designated as single-child homes.
c. Data on the number of homes in each county available for the placement of sibling groups of various sizes.
d. An analysis of the number of homes in each county and region that have a deficit or surplus of single-child homes to meet the needs of children from the same counties and regions who are sexually aggressive or have been sexually abused.
e. An analysis of the number of homes in each county and region that have a deficit or surplus of homes that can meet the placement needs of sibling groups from the same counties and regions or catchment areas.
4. Effective immediately, DFPS shall immediately establish a tracking mechanism to identify how many children are in all placements where a PMC child resides, including foster, biological, non-foster and adoptive children, as well as each placement’s licensed capacity. By May 2018, DFPS shall publish this information on its website and update the information quarterly.
5. Effective June 2018, DFPS shall establish and implement a policy that requires a transition plan of no less than two weeks to change a PMC child’s placement if the disruption is due to a change in the
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child’s level of care. The policy shall require a documented assessment to determine if the child should remain in the same placement for an extended period if the assessment determines the child’s behavioral or emotional challenges are likely to re-escalate if the placement is changed. 6. Beginning in June 2018, DFPS shall report to the monitor(s) semiannually on PMC children's placement moves, and ensure that all such moves, and the reasons for the placement moves, are documented in the child’s electronic case record. Foster Group Homes
1. Effective immediately and ongoing thereafter, no PMC child may reside in a Foster Group Home placement.
2. Effective immediately and ongoing thereafter, no PMC child may reside in any family-like placement that houses more than six children, inclusive of biological, adoptive, non-foster and foster children. Family-like placements include non-relative foster care, tribal foster care, and therapeutic foster care.
The remaining injunction provisions are “crossover” provisions, which
address multiple violations or which target other alleged DFPS deficiencies.
Again, only those crossover provisions that are narrowly tailored to remedy the
caseload management and the monitoring and oversight violations are proper.
Specifically, the provisions mandating DFPS update and integrate its record-
keeping system are relevant to both violations. An improved record-keeping
practice will reduce caseworkers’ overall workloads. It would also centralize
and make accessible data that is critical to making safe placement decisions.
Lastly, access to comprehensive medical information, mental health records,
and placement history for individual children would assist RCCL in making an
informed assessment about abuse allegations. The following provisions are
valid:
1. Within four months of the Court’s Final Order, DFPS shall submit to the Court a plan for an integrated computer system, with specific timeframes, that contains each PMC child’s complete records, including but not limited to a complete migration of all medical,
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dental, educational, placement recommendations, court records, mental health and caseworker records. The mental health, dental and medical information shall include all visits to the provider with detailed examinations, diagnoses, test results, immunizations, medications (including the reasons for each), history of abuse, treatment plans, and any other information necessary for the safety of the children. DFPS shall have this system fully functional within one year of the Final Order date. 2. Within four months of the Court’s Final Order, DFPS shall submit to the Court a plan for an integrated computer system, with specific timeframes, that contains each PMC child’s complete records, including but not limited to a complete migration of all medical, dental, educational, placement recommendations, court records, mental health and caseworker records. The mental health, dental and medical information shall include all visits to the provider with detailed examinations, diagnoses, test results, immunizations, medications (including the reasons for each), history of abuse, treatment plans, and any other information necessary for the safety of the children. DFPS shall have this system fully functional within one year of the Final Order date.
The crossover provisions related to placement array and foster group
homes must be struck. Additionally, provisions designed to remedy what the
district court believed to be additional, related problems with the foster care
system are improper. These provisions are not calculated to remedy an
identified constitutional violation. They may reflect “best practices” or the
personal policy preferences of the district court, but they are not necessary to
achieve constitutional compliance. Moreover, many of these provisions only
increase caseworkers’ administrative burdens. The following provisions are
invalid:
1. Effective immediately, the electronic case record of each child in the PMC class must include the child’s photograph that is not more than one year old, except as provided in paragraph three, below.
2. Effective immediately, when a child enters the PMC class, DFPS shall ensure that a photograph is taken of the child within 48 hours and uploaded into the child’s electronic case record promptly. DFPS shall
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ensure the date of the photograph is recorded in the child’s case record. 3. Effective immediately, with respect to all PMC children under the age of three years, DFPS shall ensure that photographs are taken and uploaded to the child’s IMPACT case record at least semi-annually and the date of the photograph must be recorded in the child’s case record. 4. Effective immediately, DFPS shall ensure adequate training to all caseworkers on how to use the appropriate technology to photograph a child and upload the photograph to the child’s electronic case record. 5. Effective immediately, DFPS shall ensure and document that all youth in the PMC class, aged 16 or older, receive copies of their birth certificate and social security card upon turning 16. 6. Effective immediately, DFPS shall ensure and document that all youth in the PMC class, prior to aging out of care, receive copies of their birth certificate, social security card, most current high school transcript, copies of their last physical health and dental examinations, copies of their immunization record, and copies of identifying information needed for Medicaid. DFPS must document an acknowledgment of receipt, along with a short description of the youth’s plan for safekeeping the documents, signed by the youth and their caseworker in the electronic case record prior to the youth aging out of care. Prior to the youth aging out of care, DFPS shall take all reasonable steps, including the filing of an application, to assist the youth in signing up for either Former Foster Care Children’s Medicaid or Medicaid for Transitioning Foster Care Youth, and shall document those steps in the child’s electronic record. Each of these programs requires an affirmative act to change from the under-18 Medicaid to the over-18 previous foster care Medicaid. 7. Effective within three months of the Court’s Final Order and ongoing thereafter, DFPS shall identify all PMC youth aged 14 and older who have not yet received the following DFPS independent living preparation services: the life skills assessment, a Circles of Support (COS) or Transition Plan Meeting (TPM), and a recently updated (within six months for youth 16 and older and one year for youth 14 and older) transition plan. DFPS shall ensure that all PMC youth who have been identified immediately above receive these services and that the PMC youth’s transition plan is developed. 8. Effective June 2018, DFPS shall ensure all 14- and 15-year-old youth in the PMC class receive DFPS’ Preparation for Adult Living (PAL) services.
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9. Effective June 2018, DFPS shall ensure that if a PMC youth’s disability is a barrier to participation in PAL services or supports, appropriate accommodations shall be identified that allow the youth to meaningfully participate, and DFPS shall document any accommodations in the child’s electronic case record.
10. Effective June 2018, DFPS shall ensure PMC youth receive a lifeskills assessment within 45 days of turning 14, and are reassessed annually, and that the results of these assessments are documented and available in the child’s electronic case record.
11. Effective June 2018, DFPS shall ensure that PMC youth receive DFPS’s Circles of Support (COS) or Transition Planning Meeting (TPM) within 45 days of turning 14 years old, and then receive either COS or TPM in conjunction with the child’s permanency planning meeting every four months, until the youth ages out or attains permanency. The purpose of such meetings is to develop a youth’s transition plan with an eye toward building skills to support a youth’s specific strengths and address needs in preparation for independence.
12. Effective March 2018, DFPS shall ensure that primary caseworkers assigned to PMC children develop a plan, in consultation with the child’s attorney ad litem, to facilitate the sealing or expungement of any eligible criminal or juvenile records for offenses for which the youth was adjudicated or convicted prior to the youth aging out of care. DFPS shall ensure the efforts to do so are documented in the child’s electronic case record.
13. Effective March 2018, DFPS shall ensure that the caseworker puts a plan in place prior to a PMC youth turning 18 years of age, documented in the case record, detailing how the youth will access benefits the youth is eligible to receive once they leave DFPS care, including the DFPS transitional living allowance, Social Security Disability Insurance benefits, the DFPS aftercare room and board assistance, and DFPS’s Education and Training Vouchers.
14. Effective June 2018, DFPS shall ensure driver’s education classes are provided to all PMC youth who are old enough to receive a learner’s permit and choose to take driver’s education. DFPS may create exceptions for PMC youths who are not developmentally or medically able to safely participate in driver’s education.
15. Effective immediately, DFPS shall ensure that prior to exiting care, each PMC youth age 14 and older is assisted in creating e-mail accounts so that they may receive encrypted copies of personal documents and records, in addition to receiving copies of originals.
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16. Effective immediately, DFPS shall request the appointment of an Attorney ad litem for all PMC children from each court in which a suit is pending in which a PMC child does not have Attorney ad litem representation, citing the Court’s Final Order.
17. Within 30 days of the Court’s Final Order, DFPS shall present a plan to the Court to ensure reimbursement to Attorneys ad litem in those courts that do not currently provide Attorneys ad litem for PMC children. If DFPS fails to present a plan, DFPS shall reimburse those fees necessary to provide Attorneys ad litem in those courts that do not currently provide Attorneys ad litem for PMC children.
18. DFPS shall institute and incorporate caseworker training (minimally into the Conservatorship Specialty Track) about child health that describes: a. The health vulnerabilities of foster youth (pages 1 and 2 of the American Academy of Pediatrics “Fostering Health: Healthcare for Children and Adolescent in Foster Care”); b. Specifically, how to use child and family visits to obtain and update healthcare information; c. The utility of children’s electronic case record, for improving the health of foster youth.
19. Effective immediately, DFPS shall make every effort to obtain and make available a child’s medical records within 24 hours of the child entering the custody of DFPS. Caseworkers shall document their efforts to obtain and make available children’s medical records within 48 hours of children entering DFPS custody.
20. Effective June 2018, DFPS will ensure that every PMC child has a medical home. The medical home is a health care delivery model led by a health care provider to provide comprehensive and continuous medical care and care management to patients with a goal to obtain positive health outcomes. The medical home shall be obliged (by policy and contract): a. To maintain and update all medical fields of the child’s central electronic record; b. To coordinate care for routine and emergency healthcare needs; c. To ensure timely evaluations and assessments for all health needs, including behavioral health (including psychotropic oversight), dental care, and chronic health conditions.
21. Effective June 2018, DFPS shall ensure children in the PMC class receive a specific developmental assessment of at least one of the following screenings within 90 days of each child’s birthday:
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a. Birth to 10 years: Ages and Stages Questionnaire, Ages and Stages Questionnaire: Second Edition, or the PEDS developmental screening and assessment;
b. 11 years to 21 years: the Pediatric Symptom Checklist (PSC)35, the Youth Pediatric Symptom Checklist (Y-PSC), the Patient Health Questionnaire-9 (PHQ-9), or the CRAFFT screening test)
c. If DFPS does not believe any of these tests to be reliable, it may propose its own developmental assessments to the Court within 30 days of the date of this Order. Screening results from the developmental assessment, including follow-up/red flag items, shall be inputted into the child’s electronic case record within 72 hours;
22. Effective June 2018, DFPS shall ensure the child’s central electronic case record has functional internal (red flag) alerts notifying caseworkers of: a. Follow up needed; b. Assessments/screening required or indicated; c. Evaluations required or indicated; d. Immunizations required or indicated; and e. Appointments missed or cancelled.
23. Effective May 2018, DFPS shall institute a policy that uses the caseworker visits to verify and report on health status by answering and documenting in the PMC child’s electronic case record these questions: a. Are there outstanding red flag items for this child? i. Greater than 20 days? ii. Greater than 90 days? b. Has this child visited a healthcare practitioner in the last 90 days? c. Can this child (over 11) name his/her health care needs?
24. Effective March 2018, DFPS shall implement a policy that requires that no unrelated children more than three years apart in age be placed in the same room. The policy may also establish exceptions, including a thorough and documented assessment that certifies it is in the child’s best interest or that no risk of harm would result from placing any unrelated children more than three years apart in the same room. Any exceptions applied under this policy must be approved and documented in the child’s electronic record by the DFPS county director.
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25. Effective March 2018, DFPS shall implement a policy that requires that no unrelated children with different service levels be placed in the same room. The policy may also establish exceptions, including a thorough and documented assessment by DFPS that certifies it is in the child’s best interest or that no risk of harm would result from placing any unrelated children of different service levels in the same room. Any exceptions applied under this policy must be approved and documented in the child’s electronic case record by the county director.
26. Effective immediately, DFPS may not place a child in the PMC class in an office overnight, and must track all instances if it does so, and report the same to the monitor(s) monthly. If, under any circumstance, a child in the PMC class spends the night in an office, DFPS staff must document that fact, and the reason, in an electronically available log maintained by DFPS in each county. These logs shall be submitted on the first day of every month to a designated senior manager in DFPS’ central office and to the monitor(s). The designated DFPS senior manager shall review these logs monthly and take immediate follow up action to identify and address problems encountered at the county level with respect to securing minimally adequate, safe placements for children in the PMC class.
27. Within six months of the Court’s Final Order, all PMC children under two years of age shall be placed in a family-like setting, including nonrelative foster care, tribal foster care, kinship foster care and therapeutic foster care. DFPS may make exceptions to family-based placements for sibling groups of four or more children who cannot otherwise be placed together, children whose individual needs require hospitalization, treatment and/or medical care or young children who are placed with their minor parent in the PMC class and who may require services provided in a non-family-like placement. All exceptions must be approved by a supervisor and documented in the child’s electronic case record.
28. Within 12 months of the Court’s Final Order, all PMC children under six years of age shall be placed in a family-like setting, including nonrelative foster care, tribal foster care, kinship foster care and therapeutic foster care. DFPS may make exceptions to family-based placements for sibling groups of four or more children who cannot otherwise be placed together, children whose individual needs require hospitalization, treatment and/or medical care or young children who are placed with their minor parent in the PMC class and who may
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No. 18-40057 require services provided in a non-family-like placement. All exceptions must be approved by a supervisor and documented in the child’s electronic case record. 29. Within 24 months of the Court’s Final Order, all PMC children under the age of 13 shall be placed in a family-like setting, including nonrelative foster care, tribal foster care, kinship foster care and therapeutic foster care. DFPS may make exceptions to family-based placements for sibling groups of four or more children who cannot otherwise be placed together, children whose individual needs require inpatient psychiatric hospitalization, treatment and/or medical care or young children who are placed with their minor parent in the PMC class and who may require services provided in a non-family-like placement. All exceptions must be approved by a supervisor and documented in the child’s electronic case record. VII. Conclusion For the foregoing reasons, we AFFIRM in part and REVERSE in part the district court’s findings on substantive due process liability, and VACATE and REMAND the permanent injunction for modification consistent with this opinion. This is a limited remand. Accordingly, should either party seek appellate review following modification of the injunction by the district court, the appeal will be assigned to this panel. See United States v. Cessa, 861 F.3d 121, 143 (5th Cir. 2017) (citing Wheeler v. City of Columbus, 686 F.2d 1144, 1154 (5th Cir. 1982)).
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No. 18-40057 PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring as to Parts I, II, III, IV.1–2, and otherwise dissenting:
The care of our children has long been a concern of society and state, with vivid images of Charles Loring Brace’s “orphan trains” shipping children from the streets of New York to the Midwest in the 1850s, to the development of the modern institutions of child welfare. Today, we add another page to that ongoing narrative.
In 2011, PMC children challenged the constitutionality of their conditions, and, after seven years of litigation, received ongoing relief in the form of an injunction, ordering changes to remediate the denial of the children’s constitutional rights. The majority disassembles that remedy, scrapping elements it deems superfluous, along the way reversing the district court’s liability determinations regarding Licensed Foster Care placement arrays and Foster Group Home policies. I concur in the majority’s affirmance of liability as to the general class’s claim and the Licensed Foster Care subclass’s oversight claim, but cannot join its reversals of the liability rulings regarding the placement-array and the Foster Group Home claims. Nor can I join its disaggregation of the district court’s injunction and vacatur of substantial portions of that remedy.
Underlying the doctrinal missteps in the majority’s evaluation of liability and remedy is a refusal to abide by the standard of review of the district court, replacing it with an indulgent deference to DFPS. This approach belies the recognition—emphasized by the district court—that DFPS has, for two decades, hobbled the capacity of its caseworkers to care for PMC children and countenanced the abuse, physical endangerment, and permanent psychological debilitation of thousands of children under its care. It is significant that the panel is unanimous in affirming the finding of the district
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court that DFPS was deliberately indifferent to the liberty interests of PMC children. We disagree over the remedial response to these ills.
I begin against the backdrop of an account of one child, which the district court found to be typical of the thousands of PMC children—a factual account that compelled the affirmance of the district court’s finding of liability. At fourteen, Texas foster child S.A. “denied that any happy things [had] ever happened to her.” At five, S.A. became a ward of the State when her mother was arrested. Four months into foster care, S.A. reported being sexually abused by an older child in her foster home. DFPS sent no agency staff to interview S.A., and there is no record that anyone from the agency followed up with the private company to which it had outsourced the investigation. When she entered permanent conservatorship roughly half a year later, S.A.’s behavior had changed: she was aggressive and self-abusive, and later suicidal. DFPS eventually moved S.A. from her first foster home. Over the coming years she was moved between thirty-three placements, attended sixteen different schools, and was assigned to a “revolving door” of twenty-eight different caseworkers. S.A. was diagnosed with a growing list of mental-health problems, and received therapy for further instances of potential sexual abuse. Her caseworkers failed to update her records, and, as a direct consequence of these failures, S.A. missed at least two possible adoption opportunities— opportunities of which S.A. was aware. At the time, she told a psychologist that she “felt so sad that she no longer wanted to live.” On turning eighteen, S.A. “aged out” of foster care. By then, her intellectual functioning had severely deteriorated and she had regressed emotionally, unable to trust others or build relationships. Indeed, S.A. appears to have lost basic elements of her identity and individuality: she could no longer recount a chronology of her life or remember where she had lived. The five-year-old girl DFPS had taken under
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its protection left the State’s care thirteen years later psychologically scarred,
deprived of capacities for citizenship and productive adult life. S.A.’s experience is typical for PMC children.1 She is but one of
thousands of children DFPS has “shuttled throughout a system where rape, abuse, psychotropic medication and instability are the norm.”2
I.
Within DFPS, frontline work with PMC children is primarily delegated
to caseworkers. “[C]aseworkers are foster children’s lifeline, their connection to everything.”3 Once a child enters permanent conservatorship, courts often
dismiss the child’s attorney ad litem and court-appointed advocates, leaving
the DFPS caseworker as the child’s sole advocate.4 Caseworkers’ duties include
monitoring a foster child’s welfare within the foster-care system, intervening
to protect the child’s interests, and working towards the achievement of
permanency. PMC children are dependent upon their caseworkers. As amicus
National Association of Social Workers puts it, “[t]he effective caseworker
serves as a ‘smoke alarm’ for the child in care . . . sounding a warning when
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1 M.D. v. Abbott, 152 F. Supp. 3d 684, 737 (S.D. Tex. 2015) (“S.A.’s experience is ‘typical . . . of the entire foster care system in the State of Texas,’ especially in the PMC.”); see also Brief of Disability Rights Texas as Amicus Curiae at 2 (“[B]ased on our experiences representing over 800 PMC children in 46 counties, Plaintiffs’ tragic experiences are far too typical.”).
2 M.D., 152 F. Supp. 3d at 828. 3 Id. at 776 (internal quotation marks omitted). As Amicus National Association of Social Workers puts it, “[t]he State’s ability to provide the best of care for these children pivots on the effectiveness of its caseworkers who fulfill a critical role in these children’s lives and ultimate outcomes.” Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as Amicus Curiae at 5. 4 M.D., 152 F. Supp. 3d at 782 (“[W]hen a child enters PMC, courts often dismiss the child’s attorney ad litem and CASA, leaving the child with fewer stable relationships and advocates. This makes the child’s relationship with his or her caseworker that much more important.”).
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anything is amiss.”5 To be effective, “each caseworker must have the time and resources to devote to each child who forms a part of the caseworker’s caseload.”6 According to the Child Welfare League of America (CWLA), the nation’s oldest and largest membership-based child welfare organization,7 a caseworker can handle up to 15 cases effectively—any more compromises the effectiveness of the worker, and the welfare of the children under the worker’s care.8 The Council on Accreditation, another national child-welfare professional organization, similarly recommends that caseloads not exceed 15 children per worker, not as an ideal, but as a minimum necessary protection— protection that our Constitution guarantees.
The record demonstrates that DFPS has undermined caseworkers’ abilities to fulfill their duties. DFPS caseworkers handle, on average, 28 children’s cases at a time, with caseworkers at the upper end of the distribution handling 40, sometimes 60. More than 55% of DFPS caseworkers lack the time to do their jobs. With primary caseworkers unable to attend to PMC children, DFPS created the role of “I See You” workers, secondary “caseworkers” whose task is to confirm that children are still present at placements.9 The district court found that the cursory interactions “I See You” workers have with foster children cannot substitute for the sustained and focused care of a primary caseworker. “[C]hildren intuitively know that this person is just fulfilling a
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5 Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as Amicus Curiae at 12. 6 Id. at 14. 7 M.D., 152 F. Supp. 3d at 701. 8 Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as Amicus Curiae at 14– 15. 9 Following trial, DFPS renamed the position “Local Permanency Specialist.”
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service or a requirement by looking in on them.”10 Indeed, the district court surmised that DFPS’s use of “I See You” workers served primarily to boost rates of face-to-face meetings with children, a precondition to the agency receiving millions of dollars in federal funds.11
The record demonstrates that casework at DFPS takes place under conditions of administrative chaos. The agency keeps voluminous records for PMC children—so lengthy that, given their caseloads, caseworkers cannot realistically familiarize themselves with them. In preparation for trial, the district court read the case files of twenty PMC children, that is, 70% of a single DFPS caseworker’s average caseload: it took the court 462 hours to read these files, 358,102 pages in total. Notwithstanding their length, children’s records are in many cases incomplete. They are also “incredibly disorganized,”12 divided among several uncoordinated digital databases, and numerous paper files, the latter spread across placement homes, placement-agency offices, DFPS caseworker offices, and medical-service provider offices. Often files are inaccurate, for example, including documentation of caseworker visits that never occurred. Buried in this administrative morass, caseworkers spend only 26% of their time directly working with children and families. The balance is devoted to administrative and clerical tasks.
DFPS is also characterized by a dysfunctional institutional culture. Internally, the agency is anything but open to improvement. Caseworkers described management practices as “unfair, unsupportive, bullying, unreasonable, and fear-driven.” They do not “feel safe to raise concerns or make
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10 M.D., 152 F. Supp. 3d at 783 (internal quotation marks omitted). 11 If fewer than 95% of foster children are visited by a caseworker, DFPS would not qualify for tens of millions of dollars in federal aid. 12 M.D., 152 F. Supp. 3d at 781.
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complaints, fearing retaliation or punishment.”13 The agency lacks a formal system for anonymous complaints. To avoid accountability, caseworkers unnecessarily pass decisions up to supervisors, exacerbating operational paralysis. Where they cannot avoid accountability, caseworkers focus their energy on tasks on which they are more easily judged by superiors, shifting their efforts away from PMC children.14 Unsurprisingly, DFPS experiences extraordinary turnover among caseworkers. Around 16% of caseworkers leave in their first six months, 25% in their first year, and 43% in their first two years. These figures are likely understatements, only accounting for those caseworkers who leave their jobs but stay within the agency. Turnover drains the agency of institutional memory and strains the agency’s budget.15 More importantly, as DFPS concedes, turnover “threatens the well-being and safety of clients,” that is, children. A PMC child has on average 6.39 caseworkers in any three-year period. Many PMC children are unable to identify their caseworker.
For PMC children, DFPS’s dysfunction has led to an “epidemic of physical and sexual abuse.” Sexual abuse is not merely “too prevalent,” it is “the norm.” An experienced attorney ad litem testified that almost all of the over 150 PMC children she had represented were sexually abused under DFPS care. A former PMC child testified from his experience that “abuse [is] happening all of the time.” DFPS caseworkers often do not intervene to prevent abuse, nor to mitigate consequences once abuse has occurred. The agency is unable to isolate potential victims from sexual abusers, particularly in
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13 Id. at 796-97. 14 Id. at 782 (“[O]verextended caseworkers prioritize TMC children who have more deadlines and concretely tracked benchmarks.”). 15 Caseworker turnover costs Texas $72 million per year.
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connection with child-on-child abuse, in large part because it does not track sexually abusive children. The agency frequently places PMC children within the same home as potential abusers even where it is clear—and conceded by DFPS officials—that abuse is likely to result. In Foster Group Homes, up to 12 foster children of all ages, genders, and service levels can be indiscriminately mixed, without a requirement of 24-hour supervision. In 64% of these homes, teenaged foster children shared homes, even bedrooms, with far younger children. In such circumstances, abuse is to be expected.16 Each incident of sexual abuse begins a cascade of harm and suffering, because abuse can “sexualize” victims, increasing the probability that they will become abusers.17
DFPS’s inability to prevent abuse is exacerbated by its incompetence in responding to incidents once they have occurred. Where DFPS had notice of potential abuse, “children [we]re not timely (or ever) examined by doctors to determine if they had been assaulted. . . . Injuries went untreated. Necessary medical follow-up did not occur.” There is evidence that DFPS’s response is to dampen the mental and emotional symptoms of trauma. The district court found pervasive administration of psychotropic drugs to PMC children, a marker of a “warehousing” approach to children.18 In these circumstances,
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16 M.D., 152 F. Supp. 3d at 819 (“Carpenter testified that, in foster group homes that mix younger children with older children, sexual abuse ‘is usual rather than unusual.’ . . . Beyond the examples cited, the record is full of physical abuse, sexual abuse, suicide attempts, and poor supervision at foster group homes.”).
17 Id. at 732 (“Expert and fact witnesses for both parties testified that once children are sexually abused, or ‘sexualized,’ that behavior is ongoing and destructive to themselves as well as to the other children with whom they come in contact.”).
18 The district court voiced “continuing concern over foster care children who enter care at a Basic needs level and age out from a residential treatment center on multiple psychotropic drugs, indicative of warehousing children.” Concerns about excessive administration of psychotropic drugs to foster children go back at least to the Texas Comptroller’s 2004 report.
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PMC children learn not to seek meaningful help from DFPS, because they doubt that anyone will respond to their calls.
Where children have reported abuse or neglect to the agency, investigations are inadequate. The typical error rate for child-welfare agency investigations is 2% to 3%. DFPS’s error rate is 75%.19 That is, three out of every four cases of abuse are erroneously resolved—numbers that push beyond deliberate indifference. DFPS investigators are not encouraged to complete investigations quickly, leaving children in potentially dangerous situations. Staff fail to interview parties, review evidence, or address continuing risks to children. And failed investigations endanger PMC children by leaving them in placements where abuse is ongoing; perpetrators are left to continue abuse within the system with “nothing in their record indicating a risk.” As former foster child Kristopher Sharp testified regarding his experience after being sexually abused at a residential treatment center in Denton, Texas, “even if I did get the chance to tell somebody . . . . [n]obody certainly would do anything. I’d have to stay here . . . . We didn’t feel safe in placements and then nothing happened and so—I mean, why—why would you go through to the process of even thinking that something would happen if you were to report something like this?” DFPS effectively teaches children that victimization is a tolerable aspect of foster care, not to be redressed, let alone prevented.
Harms inflicted on PMC children “have widespread ripple effects throughout society.”20 Every year, on turning eighteen, around 1,300 to 1,400
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19 M.D., 152 F. Supp. 3d at 799. 20 See Brief of Disability Rights Texas as Amicus Curiae at 4 (“The harms suffered— while DFPS was entrusted with the children’s protection as the legal ‘parent’—cascade, multiply, and manifest long into adulthood. . . . [T]hese harms have a ripple effect throughout the child’s life, and how that exacts a steep toll both on the individual and on society.”).
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PMC children age out of foster care. These individuals leave without basic skills to survive, often poorly educated. Though 70% of foster children aspire to attend college, PMC children rarely age out with a high-school diploma,21 and only 3% will receive a college degree.22 “Statistically, they are at extreme risk of poverty and homelessness, victimization and criminal involvement, illness, early childbearing, and low educational attainment.” Around 27% end up in the criminal-justice system.23 About one third will be homeless.24 Once homeless, one out of three will become involved in prostitution.25 Amicus curiae Disability Rights Texas reports that “the Texas child welfare system is effectively supplying the sex-trafficking industry with current and former foster youth.”26 Among female former-PMC children, 49% become pregnant within a year of aging out; 70% of their children enter the same foster-care system.
This debacle cannot be understood without the parallel chronicle of bureaucratic intransigence, at least two decades old. As early as 1996, the Committee to Promote Adoption, a body assembled by then Governor George W. Bush, concluded that Texas’s caseworkers bore excessive caseloads. In 2004, the Texas Comptroller issued a report describing the same problem, as well as the associated risk of child-on-child sexual abuse. In a 2007 follow-up
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21 Id. at 14. 22 Id. 23 Id. at 8; M.D. v. Abbott, 2017 WL 74371, at *8 (S.D. Tex. Jan. 9, 2017) (citing Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 4:37:50). 24 Brief of Disability Rights Texas as Amicus Curiae at 8. 25 Id. 26 Id. at 7.
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study, the non-profit Texas Appleseed Project observed that the caseload problem had become worse, and that, as a result, “children in the system are harmed.” In 2009, Governor Rick Perry tasked the Adoption Review Committee with taking a “hard look” at the Texas foster-care system. Reporting back a year later, the Committee observed that “sadly . . . many of the same problems identified in 1996 still exist in the current child welfare system.” The Committee noted “increasing evidence that our foster care system is sometimes doing more harm to our children than good.” These efforts continued even after the district court’s liability determination. In 2016, as the Special Masters worked to develop a remedial plan, Governor Greg Abbott remonstrated against the “unacceptable” status quo, and insisted on an “overhaul” of the “broken system.” Together with Lieutenant Governor Dan Patrick, he warned DFPS that “we will not tolerate inferior residential foster care operations.”
These efforts yielded few results. During the 2009 to 2013 period caseloads were not reduced—they increased.27 In place of reform, DFPS doctored statistics to downplay the problem. When asked to report on average caseloads—total cases divided by caseworkers—DFPS included in the denominator not only primary caseworkers, “I See You” workers, and workers on leave, but also “CPU workers who never interact with children” and even imaginary caseworkers “created out of all the overtime that these other caseworkers with such big caseloads were having to put in”—resulting in a lowballed quotient. The agency’s resistance did not change with the liability determination. In its December 2015 decision, the district court held that DFPS’s treatment of PMC children subjected them to an unreasonable risk of
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27 M.D., 152 F. Supp. 3d at 791–92.
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harm with deliberate indifference, violating their Fourteenth Amendment rights. The agency became defiant. The district court ordered DFPS to “ensure that all children who need single-child homes are place[d] in such homes,” which would require the agency to track such homes. DFPS responded that it “ha[d] no plans to track single child homes.” DFPS also “stonewall[ed]” when the court-appointed Special Masters sought recommendations for a remedial plan. The Special Masters sought a timeline for implementing relief—the agency did not respond. When the Special Masters requested input on improving recordkeeping, the agency responded that it “[wa]s not making such changes to the . . . system.” Similarly, when the Special Master requested draft plans for PMC-children’s landline phone access, DFPS insisted it “neither has nor will be developing such a policy.”
It was in this context that the district court had no choice but to proceed to a Final Order, responding to DFPS’s resistance with a studied injunction. For twenty years, DFPS had successfully resisted the efforts of a series of State administrations, including three of Texas’s longest serving governors, beginning with the tandem of Governor Bush and Bob Bullock, widely considered to be the strongest of Texas’s lieutenant governors. The agency ignored the dissatisfaction of its frontline caseworkers and accepted the dysfunctional chaos that characterized its day-to-day operations. That is, DFPS was deliberately indifferent to the ongoing abuse of thousands of children under its care. Only in January of this year, following years of litigation, did Judge Jack order the State to discharge its constitutional duty to protect the thousands of Texas children taken into its custody.
II. In place of the discipline imposed by the district court’s order, the majority inexplicably affords what it terms a “prudent” and “creative[]”
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bureaucracy the flexibility to set its own course and to proceed at its own pace—ignoring that this is what DFPS has been doing for twenty years—and, Janus-faced, turns away from our unanimous finding of deliberate indifference to the children’s constitutional rights. The majority’s reversals on the placement-array and Foster Group Home liability determinations, and its vacatur of key provisions in the district court’s injunction, not least the imposition of caseload requirements, flout applicable standards of review and sow confusion in our doctrine. It raises the flag of federalism, but flies it upside down. But facts matter. I would affirm the district court’s holdings in full.
A. The majority errs in reversing the district court’s liability finding with respect to DFPS’s placement array for the Licensed Foster Care subclass. The majority is correct that, as the district court put it, “[p]laintiffs do not have a constitutional right to be placed in the least restrictive, most family-like placement, or placed with their siblings, or placed close to their home community.”28 PMC children, however, have a right to be free from an unreasonable risk of harm. Where DFPS’s placement array generates such a risk, it violates the Fourteenth Amendment. The majority’s reversal is no more than a crude inversion of remedy and wrong. The district court identified a number of deficiencies in DFPS’s placement array, which, taken together, subjected children to an unreasonable risk of harm. First, the court found that, due to the geographic imbalance of foster homes, 60% of children were placed outside of their home county. The result was a lack of stability and attachments that harmed children psychologically. Second, the district court found that DFPS’s inadequate
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28 Id. at 808.
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placement array resulted in the separation of 35% of siblings, separations widely understood—including by DFPS—to have deleterious emotional and psychological effects. Third, the district court found that DFPS relied upon “congregate care facilities,” institutions housing 12 or more children, notwithstanding their “poor developmental outcomes” and lack of safety. Fourth, the district court found that DFPS’s placements did not isolate sexually abusive children in single-child homes, effectively enabling child-onchild sexual abuse. Taking these four effects together, the district court determined DFPS’s placement array posed an unreasonable risk of harm to PMC children. It found that DFPS had “known about these problems for years,” but made no reasonable response. It held DFPS violated the plaintiffs’ rights under the Fourteenth Amendment.
The majority reverses, finding that the district court overreached. DFPS’s placement array may depart from best practices, the majority finds, but it “does not unacceptably increase the risk that a child will be exposed to serious physical or psychological harm.” DFPS has “no responsibility to maximize foster children’s personal psychological development.” The placement array may be “suboptimal,” but its deficiencies do not rise to the level of constitutional harm.
But, again, it is not a question of maximizing PMC children’s welfare: it is one of turning back DFPS practices that are collectively and indisputably inflicting injuries on them, injuries found by the district court and described here. The majority’s declarations rest on a blinkered apprehension of the facts and a disregard for our standard of review. In the place of the district court’s comprehensive factual findings, it isolates discrete policies, and treats them standing alone. For example, it focuses upon DFPS’s relocation of children out of their home counties, but fails to grapple with practices of locating young
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children in homes where they will live—even share bedrooms—with known sexual abusers, or separating children from siblings, the only family they may have, terming these practices “suboptimal.” This is wordplay. By the majority’s view, Swann was wrongly decided, because children have no constitutional right to free transportation to public schools.29 In a footnote, the majority offers that sexualized children can be treated in therapeutic environments (not only single-child homes) and that the problem of child-on-child abuse is better addressed via policies towards caseloads. But this discussion is at best misplaced: these arguments are deeply flawed, and, in any event, can only be germane to relief, not liability.
The majority insists that, “[e]ven if the policies . . . were somehow constitutionally infirm,” DFPS took “concerted effort to remedy the problem” when it initiated the Foster Care Redesign scheme. The district court found that in the five years that program had been active, it grew to cover 2% of Texas, and a total of 800 children—less than ten percent of the subclass.30 The district court determined that “[t]he only data available shows that Foster Care Redesign has made Texas’s placement array worse.” Without identifying any misstep in this fact determination, the majority claims to know better: DFPS’s actions are well-considered, allowing “adequate time to assess the program’s ability to properly safeguard children’s welfare.”
“The predicate findings of a substantial risk of serious harm and officials’ deliberate indifference to the risk are factual findings reviewed for clear error.”31 Such findings are clearly erroneous only if the court reached them
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29 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 30 (1971). 30 M.D. v. Perry, 294 F.R.D. 7, 38 (S.D. Tex. 2013) (“On August 11, 2011 there were 8,174 children in the Licensed Foster Care Subclass.”). 31 Ball v. Leblanc, 792 F.3d 584, 592 (5th Cir. 2015).
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without substantial evidence, on the basis of a misinterpretation of the effect of the evidence, or if they are against the preponderance of credible testimony.32 Here, the evidence supports the district court’s liability holding as to the placement-array claim, and there is no indication that the district court misinterpreted or made findings contrary to the preponderance of the evidence. As elsewhere, “[t]he district court had a mountain of evidence at its disposal,” and so it should “enjoy[] ample discretion to credit certain evidence and expert testimony.” The majority instead reverses, substituting its conclusory assertions for the district court’s studied findings. This is not clear error review. I would affirm.
B. The majority also errs in reversing the district court’s liability holding as to DFPS’s Foster Group Home (FGH) policies. The district court found that the child-supervisor ratio in FGHs (up to eight children per supervisor) taken together with placement of children in FGHs, lack of training, and lack of 24hour supervision, contributed to unreasonable risk of harm. Experts testified to the difficulty of a supervisor “monitor[ing] that many kids.” High childsupervisor ratios often resulted in medication errors and missed appointments, including court hearings. Former foster children described the inability of FGH caretakers to monitor and attend to children, with the result that “child-onchild physical and sexual abuse is a common thing in the bigger homes.”33 “[T]he record is full of physical abuse, sexual abuse, suicide attempts, and poor supervision at foster group homes.”34 Drawing upon this evidence, the district
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32 Id. 33 M.D., 152 F. Supp.3d at 819 (internal quotation marks omitted). 34 Id.
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court determined that “DFPS’s policies and procedures for operating [FGHs] amount to a structural deficiency that causes an unreasonable risk of harm to the FGH Subclass.”35 This finding was well substantiated. The majority reverses on two grounds, both in error.
1. First, the majority identifies a “causal flaw” in the district court’s finding, reasoning that, because Texas foster-family homes are constitutionally sound, and FGHs do not significantly differ, FGH policies also must be constitutionally sound. The assertion that these two kinds of placement have no relevant differences comes without explanation or basis in the record. Even if it were accurate, it would only matter if the Texas foster-family home offered a standard of constitutional compliance. It does not. The constitutionality of policies specific to foster-family homes was not before this court, it was not addressed by the district court, and it was not briefed by the parties. Indeed, the constitutionality of foster-family home policies is not addressed in the majority’s opinion beyond its comparison in a five-word relative clause. Both premises in this sequence are wrong, and so too its conclusion.
2. Second, the majority reverses on the basis of its assertion that FGHs have been fixed. The district court identified the lack of 24-hour supervision as “the most egregious problem” in FGHs,36 which, taken together with other FGH policies, created risks of child-on-child sexual abuse. In its Liability Order, the district court required DFPS to “immediately stop placing PMC foster children in unsafe placements, which include foster group homes that
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35 Id. at 819–20. 36 Id. at 818.
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lack 24-hour awake-night supervision.”37 Today, the majority finds “no dispute that the State appears to be complying” with the district court’s order to provide 24-hour supervision in FGHs. It reasons, therefore, that “[t]o the extent that the lack of awake-night supervision may have sustained a constitutional claim under the circumstances, the remaining policies and their effects do not cause FGH children an amplified risk of harm sufficient to overcome the threshold hurdle.” The majority thus reverses the district court’s liability holding, and decertifies the FGH subclass.
The majority’s analysis is doctrinally and factually flawed. It suggests that the “appear[ance]” of post-judgment remedial action eliminates liability. Appearances do not have this effect. Nor does actual remediation. If ongoing constitutional wrongs were eliminated pending the appeal, the issue would be whether the FGH subclass’s claim was mooted. This is not what the majority finds. Rather, it reasons that, in light of post-judgment remediation, we must reverse the district court’s original finding of liability and decertify the plaintiff subclass. The majority cites no doctrine supporting this counterintuitive proposition—indeed, there is none.
Doctrinal confusion aside, the majority misapprehends the facts, specifically in asserting that there is “no dispute” as to DFPS’s compliance with the 24-hour supervision order. Appellees point out that, after the Liability Order, when “the special masters visited eight randomly-selected homes . . . [o]nly one had a workable plan for 24-hour supervision.” The district court similarly concluded earlier this year that “[t]he actions currently being taken concerning Foster Group Homes do not follow the spirit of the Court’s [Liability] Order, and do not cure the multitude of harms present in Foster
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37 Id. at 823.
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Group Homes.” The majority ignores these facts. There is no error in the district court’s findings, clear or otherwise. I would affirm the district court’s decision on this claim.
C. Perhaps the most misguided aspect of today’s decision is the majority’s repudiation of the remedy that the district court constructed to address DFPS’s constitutional wrongs.38 The injunction, the majority holds, “goes well beyond what is necessary to achieve constitutional compliance.” This is a conclusion flawed on review of the record, the district court’s reasoning, and the operative law. Running through the majority’s opinion is the mantra that the district court has “overreach[ed],” intruding into sensitive areas of State policy making. Of course, remedial orders that affect the operation of state governmental institutions are not to be taken lightly. State officials may be generally “better equipped than a single federal judge to make the day-to-day policy . . . and funding choices,” and to gather the localized knowledge in support of such decisions.39 Courts may crowd out political processes and, in so doing, violate principles of federalism and the separation of powers. No one questions these tenets of the constitutional order—but they are not implicated here. It bears mention that federal law is not foreign to the State, rather it is the State’s law.40 Here, the district court only ordered what the State failed for years to do—to enforce the law to which the majority concedes the State was
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38 Based on its liability determination reversals, the majority vacates all provisions remediating violations based on Foster Group Home policies and the Licensed Foster Care placement array policies. The majority’s liability determinations are in error, and so are its decisions to vacate the corresponding remedial provisions.
39 Missouri v. Jenkins, 515 U.S. 70, 131–32 (1995) (Thomas, J., concurring). 40 Testa v. Katt, 330 U.S. 386, 391 (1947) (“[T]he policy of the federal Act is the prevailing policy in every state.”).
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deliberately indifferent. In fairness, I would add that the Appellants did not discriminate against federal authority: DFPS also failed to reform pursuant to commands of the State’s administrations—a failure this court can redress here because the agency denies the constitutional rights of children.
It is beyond dispute that there was no effective political process for the district court to displace. The state agency here defied the efforts of three of Texas’s longest serving governors. The challenged conduct flows from systemic and structural defects, and the rights-bearers are children who cannot vote or directly participate in the political process. PMC children, as we describe elsewhere, lack caseworker representatives or other advocates to assert their basic physical and psychological needs—for example, protection from repeated sexual abuse and neglect. In short, DFPS’s unconstitutional practices defied political processes, and well-intentioned State administrations have come and gone struggling to impose order on DFPS. At least as early as 1996, DFPS was unmoved by the first of the “twenty years of studies conducted or commissioned by the State.” The administration of Governor Perry returned to DFPS’s problems in 2010, pointing out that the agency had still not fixed the problems identified almost fifteen years earlier. Most recently, the district court noticed the current commissioner’s exhortations to reform at DFPS, and his acknowledgments that, as yet, the agency was overwhelmed: “our workers are outnumbered by the opponent—child abuse and neglect.”41 In its Liability Order, the district court observed that the State had appointed its “seventh commissioner since 2004, each of whom was surely ushered in with promises
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41 M.D., 2017 WL 74371, at *4 (quoting Letter from Commissioner Whitman, Oct. 27, 2016).
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that this time it will be different.”42 More than “[t]wo years and one legislative session” after the liability determination, the constitutional deprivations remained unaddressed. The “foster care system of Texas [was still] broken,” but DFPS insisted still that it “operated a constitutionally sound system.”
1. On appeal we do not evaluate the district court’s choices relative to our conception of the optimal remedy. We review for abuse of discretion, reversing only where the district court has relied on clearly erroneous factual findings, erroneous conclusions of law, or a misapplication of factual or legal conclusions.43 As with all exercises of equitable power, “the nature of the violation determines the scope of the remedy.”44 While the remedy must be in this sense narrowly tailored—it must fit the violation—the district court otherwise has broad discretion to develop a remedy.45 Here, no provision was superfluous to the remedy, the whole of which was narrowly tailored to address DFPS’s constitutional violation.46 In constructing its order, the district court drew upon seven years of methodical work to understand DFPS and the predicaments of thousands of PMC children subject to its authority. The district court reviewed the named plaintiffs’ case files, the testimony of 28 fact witnesses (including several former foster children) and 12 expert witnesses, and more than 400 exhibits (totaling over 390,000 pages), and presided over a two-week bench trial. It issued a 255-page
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42 M.D., 152 F. Supp. 3d at 828. 43 Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th Cir. 2014). 44 Swann, 402 U.S. at 16. 45 Id. at 15 (“[B]readth and flexibility are inherent in equitable remedies.”). 46 The State gains relief from the injunction by coming into constitutional compliance other circumstances creating a need for relief from any of its provisions.
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Liability Order on December 17, 2015, and then considered, selected, and appointed two special masters, Professor Francis McGovern of Duke University Law School and Kevin Ryan, a former commissioner of New Jersey’s child welfare agency, to develop a plan effectuating the court’s order.47 Over the following months, the Special Masters “review[ed] hundreds of thousands of pages of documents” and met with the parties repeatedly. During this process, DFPS was repeatedly provided opportunity to participate, to deliberate over the appropriate form of the remedy, and to contribute its perspective and insights. It declined these opportunities. The Special Masters submitted their report to the district court on November 4, 2016. The district court then “hear[d] discussion and clarification” of issues raised by the parties, and issued an interim order on January 9, 2017, directing yet further work to inform development of the remedy. The Special Masters accordingly retained experts from the University of Texas at Austin for workload studies regarding “I See You” workers and DFPS investigators. Finally, a year later, on January 19, 2018, the district court issued a 116-page Final Order defining the remedy.
2. The majority pronounces unnecessary the remedy’s requirement that a PMC child’s caseworker have no more than 14–17 cases at a time (“the caseload requirement”), because “the primary issue with DFPS’s management of its caseworker caseloads is the lack of adequate data.” It vacates a corresponding requirement for DFPS investigators for similar reasons. It does so without identifying clearly erroneous factual premises, or other abuse of discretion. The record provides ample evidence that the caseload requirement was an essential
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47 On November 22, 2017, the parties agreed to appoint Francis McGovern as mediator, terminating his appointment as Special Master.
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part of the remedial plan. Although caseloads had been a longstanding problem well known to DFPS, the agency refused to act. As the majority states elsewhere, the record provides “ample evidence” that PMC children do not receive requisite care because their caseworkers’ “caseloads are extremely high” and that “there is a direct causal link between high caseloads and an increased risk of serious harm to foster children.” DFPS understood the deficiency of its caseloads going back at least to 1996, when the Committee to Promote Adoption identified excessive caseloads. Despite this information, as of January 2017, the problem remained.48 Not surprisingly, the district court made a factual finding that this trend would continue: “unless directed otherwise . . . studies and testing will continue, no remediation will occur and the dangerous conditions will continue to exist.”
Following this reasoning, the district court defined a minimum requirement for caseworker commitments to each PMC child: that no child have a caseworker handling more than 14–17 cases at a time. The district court also ordered DFPS to end the use of “I See You” workers as substitutes for primary caseworkers. The district court’s remedial choice to impose the caseload requirement was directly related to a factual finding about how DFPS operated and the need to ensure an end to its history of recalcitrance: “[T]he burden has always been on the State to provide constitutional safeguards to children over whom they have custody. The refusal by the State to accept this burden . . . brought us to this point.”49
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48 The district court explicitly “note[d] the decades of reports aimed at fixing DFPS, and the lack of meaningful attempts at improvement.”
49 M.D., 2017 WL 74371 at *7.
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The majority acknowledges the agency’s intransigence. It concedes that DFPS “had ample opportunity to cure the system’s deficiencies . . . . long before plaintiffs filed this law suit,” but had nonetheless “failed to take meaningful remedial action.” While the majority states as a general matter that, in light of DFPS’s conduct, principles of deference to state authority are “less applicable,” when it comes to remedial provisions with any teeth—here, the caseload requirement—it demands “[a] more flexible method.” Far from identifying clear error, the majority wanders into error itself. It holds that the caseload requirement is “beyond what [is] minimally required to remedy the constitutional violation,” reasoning that the district court “essentially adopted national caseload standards.” The majority finds that professional standards define best practices, but not constitutional thresholds, and that DFPS may have compelling reasons for failing to conform to them.
The majority errs both in its understanding of these professional standards as well as in its understanding of the basis of the district court’s caseload requirement. The professional standards relevant to child-welfare caseloads are not aspirational “goals”; rather, they define the levels of care necessary for the minimal protection of children’s interests. While these professional standards do not directly establish constitutional requirements— and the district court did not so find—they provide a frame of reference for evaluating a state agency’s practices.50 This is especially so in Texas, where the Legislature has incorporated professional standards into law. Under Texas
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50 M.D., 152 F. Supp. 3d at 701–02 (“A failure to meet CWLA and COA standards is not a per se constitutional violation. Professional standards, however, can be evidence for or against a constitutional violation. . . . Courts generally find that while neither standard imposes legal obligations on child welfare agencies, both are reflective of the bar to which child welfare agencies are generally expected to measure up.” (internal quotation marks omitted)).
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law, if DFPS promulgates caseload standards for its caseworkers, the agency must ensure that they are “consistent with existing professional standards,” such as those established “by an authority or association, including the Child Welfare League of America.”51 The Child Welfare League of America determined that caseworkers could effectively handle no more than 15 cases: a caseload any larger would compromise the caseworker’s ability to protect children’s interests. Amicus National Association of Social Workers explains that CWLA’s national standard contemplates that caseworkers require time both for administrative responsibilities and to build relationships with each child under their protection, as well as with the adults in the children’s lives.52 In defining a minimum of acceptable care for children, national professional organizations consider that an excessive caseload compromises the worker’s ability to follow a child’s progress and undermines the possibility of a relationship with the child, both because the caseworker lacks time to spend with the child, and because the child in turn ceases to perceive the caseworker as a trusted advocate.53 DFPS’s response to the Texas statute was to adopt no standards.
More to the point, the remedial order’s caseload requirement is consistent with professional standards defining the minimum number of caseworkers necessary, but it does not originate from them. Rather, it derives from DFPS’s own estimation of what caseworkers can handle. The Special Masters explained that, after trial, DFPS produced a Work Measurement
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51 Texas Gov’t Code §§ 531.048, 531.001(5). 52 Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as Amicus Curiae at 15– 16. 53 Id. at 15–19.
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Study, which concluded that “DFPS caseworkers expended an average of 9.7
hours per month on case profiles most often associated with PMC children, and
that these workers had an average of 137.9 hours per month to spend on their
casework.” Dividing the average time available (137.9) by the average time per case (9.7), each PMC caseworker could handle a caseload of 14 children.54 On
the basis of the DFPS Study, the Special Masters recommended that the
district court order DFPS to implement a caseload standard in the range of 14
to 17 PMC cases per caseworker. The Special Masters explained this
conclusion again in a follow-up advisory document submitted to the district
court in December 2016:
DFPS caseworkers had an average of 137.9 hours per month to spend on their casework. . . . [I]t took DFPS caseworkers an average of 9.7 hours per month to work on a PMC case. . . . [D]ividing the average amount of time available to caseworkers per month (137.9 hours) by the average number of hours they used each month to work on a PMC case (9.7 hours) yields the average number of PMC cases that caseworkers have time to serve, based on the amount of time available to them: 14 cases.
The district court repeated this analysis when it adopted the recommendation in its January 2017 Interim Order,55 and did so again in its January 2018 Final
Order:
The study’s author reported that the study’s findings mean that each caseworker (as defined above) has time to serve an average of 14 PMC children each. . . . [T]he Court accepts the Work Study as providing the
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54 The majority describes this study, but fails to understand it as the basis of the remedy’s caseload requirement.
55 M.D., 2017 WL 74371 at *10.
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definitive number of PMC children that a CVS caseworker can physically handle.
As the district court summarized in its Final Order it “relie[d] on DFPS’s own study to determine, with overtime, how many children a caseworker can safely handle.” The majority ignores these numerous explanations, identifying no clear error in the factual basis for the caseload provision, and no abuse of discretion in the district court’s adoption of this provision.56
It makes a corresponding error regarding limits for DFPS investigators. In vacating these limits, it reaches its own “appellate finding” that it “would be reasonable for the court to require a comprehensive workload study” for investigators. Indeed, the district court already did so. Pursuant to the court’s January 2017 Interim Order, a workload study was conducted by a team of experts from the University of Texas Austin, which had been retained by the Special Masters. This study concluded that the median average caseload for DFPS investigators and inspectors was 14 and 7 cases, respectively,57 higher than what the experts thought was a reasonable level. The district court’s Final Order mandates that investigators and inspectors handle no more than 14 cases at a time. The majority’s vacatur of these key remedial provisions is unjustified and inexplicable.
3. The majority removes other provisions from the injunction, without regard to the integrity of the remedial scheme. These include important
________________________
56 It bears emphasis that the district court’s order imposed a caseload requirement that the Texas legislature would have imposed on DFPS had the agency elected to adopt standards, which it has refused to do. See supra note 51 and accompanying text.
57 To determine the caseload level typical for investigators and inspectors, the Study used the median of workers’ average daily caseloads.
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institutional changes that the district court found necessary, such as the abolition of the makeshift “I See You” worker role.58 It also vacates smaller but important practical elements, equally necessary to the overall remedy, such as the requirement that caseworkers meet monthly with their assigned children. Each of these provisions is an element of a remedy with interacting parts, which as a totality redresses the constitutional wrong, itself not a single act but a collection of practices that together inflict injuries on PMC children. The majority’s excisions are unexplained, presenting as conclusory generalizations about these individual elements being unduly burdensome or unnecessary.
For example, the majority eliminates the requirement that DFPS include a recent photo of each PMC child within that child’s record. The district court imposed the requirement after it determined that DFPS was unable to respond effectively to the frequent incidence of runaways in the absence of photos. More generally, the photo requirement addresses the troubling inability of DFPS caseworkers to recognize the individuals under their care. In vacating this provision, the majority does not pause to consider that it embodies in concrete, practical form the principled demand that Texas children under PMC care be treated as individuals, not administered as things. Treating a child as an individual—protecting his or her identity as an individual—has long been the
________________________
58 The majority “do[es] not understand the logic of this provision.” It should have considered the district court’s findings regarding the relative capacities of workers in the caseworker and “I See You” worker roles. The district concluded that, not only were “I See You” workers inadequate substitutes for primary caseworkers, but also that DFPS’s use of such workers “hinders primary caseworkers' ability to protect their children” by undermining trust between children and agency staff. M.D., 152 F. Supp. 3d at 783. Based on information gathered by the Special Masters, the district court also determined that “all caseworkers . . . could only handle 14 PMC cases.” In its Final Order, the district court required that DFPS caseworkers have a caseload within or below the range of 14 to 17 children. Given that the agency’s use of “I See You” workers contributed to the constitutional violation, the district court found it necessary to eliminate that role.
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concern of human rights conventions,59 a concern that also lies at the core of the liberty guaranteed in the Fourteenth Amendment.
In another cursory statement, the majority extracts the requirement that PMC children have landline phones accessible in their foster placements. In disposing of the provision, the majority opines that, to the extent underreporting of abuse is a problem, it “can be remedied by mandating that caseworkers provide children with the appropriate point of contact for reporting issues.” The imposition of a landline requirement, the majority finds, would unnecessarily burden DFPS with additional administrative work. Here, the majority ignores the record. The district court included this provision as part of the remedial response to PMC children’s inability to report abuse during infrequent and often non-private meetings with caseworkers. PMC children had been unable to utilize the existing abuse hotline, and meetings with caseworkers afforded insufficient opportunities to permit communications with advocates at DFPS. It was essential to ensure PMC children’s access to personnel in the agency. The district court cited evidence of difficulties faced by PMC children in contacting caseworkers; it also cited evidence of children often lacking access to adult figures who were not coworkers of abusers. The record also shows that “DFPS does not have a means of tracking which PMC children are placed in care with access to a phone to report abuse and neglect.” As a result, “children were subject to serious physical and sexual abuse that was not reported to the DFPS toll-free, 24-hour child abuse and neglect hotline.” In these circumstances, a dedicated landline was a necessary part of the remedy. As with all other aspects of the injunction,
________________________
59 See United Nations Convention on the Rights of the Child, arts. 7–8, 19, Nov. 20, 1989, 28 I.L.M. 1448 (“The child . . . shall have the right from birth to a name . . . . States Parties undertake to respect the right of the child to preserve his or her identity”).
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the landline was one part of a whole: “the Court did not hold that the Constitution requires that all foster children nationwide must have access to a landline phone.” Recall the 75% error rate in dispositions of reported abuse. The district court found that “Texas’s overall foster care system has unconstitutionally exposed PMC children to an unreasonable risk of harm,” and that “providing PMC children access to a phone is a necessary ‘measure[] that safeguard[s] against recurrence’ of that constitutional violation.” The provision is a rifle shot at a deserving target. Inability to report facilitates abuse. The presence of a phone is an ever-present warning to abusers, a lifeline to an unprotected child.
The majority’s crude vacatur of remedial provisions enervates an injunction carefully constructed in an exhaustive effort spanning years to address the constitutional violation, with remedies fashioned by experts— remedies necessary to respond to the constitutional injury visited upon thousands of children of Texas. These were not, as the majority suggests, the “personal policy preferences” of a federal judge. As the record resoundingly demonstrates, this was a remedy necessary in response to an agency the State has been unable to tame for more than twenty years. DFPS has seized the liberty of children in their formative years then turned them out, unprepared to cope with the world, and argues here that it has not denied the constitutionally secured liberty interest of the children—an argument unanimously rejected today. The majority’s pull down of the remedies found necessary by the district court fails to comprehend the injury responded to. I end where I began. Read again the account of foster child S.A. No abuse? There is no judicial activism afoot here, at least not of the able district judge, who only enforced the constitutional rights of PMC children—rights penned for the
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No. 18-40057 Court twenty-nine years ago by Chief Justice Rehnquist, from which no Justice dissented.60 I cannot join.
III. I would affirm the district court’s determinations on liability and remedy in full.
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60 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989) (“[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”); id. at 201 n.9 (describing without holding, that state foster care may implicate the liberty interests and corresponding due process rights of children in state custody). Three Justices dissented, not from the Court’s adopted standard, but because they would have had the Court go further, extending constitutional obligations to children beyond the custodial relationship. Id. at 203–12 (Brennan, J., dissenting).
103

 
 Case: 18-40057 Document: 00515024789 Page: 1 Date Filed: 07/08/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 18-40057

July 8, 2019 Lyle W. Cayce

Clerk

M. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B. Morrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer Talley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J. Ricker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela C. Vasquez; A. R., by next friend Tom McKenzie, individually and on behalf of all other similarly situated,

Plaintiffs - Appellees

v.

GREG ABBOTT, in his official capacity as Governor of the State of Texas; COURTNEY PHILLIPS, in her official capacity as Executive Commissioner of the Health and Human Services Commission of Texas; HENRY WHITMAN, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas,

Defendants - Appellants

Appeals from the United States District Court for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge:
This case returns to us after a limited remand. After our opinion in M.D. by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237 (5th Cir. 2018), the district court was tasked with modifying its injunction remedying certain constitutional deficiencies in Texas’s foster-care system. The State now asks
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No. 18-40057 us to vacate many of the modified injunction’s provisions. For the following reasons, the modified injunction is affirmed in part, affirmed with modification in part, and vacated in part.
I. This case’s underlying facts are thoroughly laid out in Stukenberg I, 907 F.3d at 243–47. In short, this case is about the constitutionality of Texas’s foster-care system. Plaintiffs are a certified class of minor children in the permanent management conservatorship (PMC) of the Department of Family Protective Services (DFPS). We previously found that DFPS’s policies violated Plaintiffs’ substantive-due-process rights in two ways: (1) by maintaining overburdened caseworkers who are responsible for the children in the PMC; and (2) by failing to adequately monitor and oversee the children in the licensed foster care (LFC) subclass. Id. at 256–68. But we reversed the district court’s other two liability findings. Id. at 268–70. We did not believe that DFPS’s placement array or the foster group homes—in and of themselves— created a constitutionally cognizable harm to the children. Id. Based on these findings, we evaluated the district court’s extensive injunction, which mandated dozens of specific remedial measures. Id. at 271– 87. We noted that an injunction must be narrowly tailored to cure the specific constitutional violations at issue and must not go beyond what is “minimally required” to bring the State into constitutional compliance. Id. at 272. With this standard in mind, we validated and invalidated many of the injunction’s specific provisions. Id. at 271–87. We concluded by remanding the case to modify the permanent injunction “consistent with this opinion.” Id. at 288. The remand was a limited one. Id. After Stukenberg I issued, the district court promptly requested briefing on how to comply with Stukenberg I. And in November 2018, the district court
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No. 18-40057 issued the modified injunction. The State now appeals, unhappy with the district court’s revisions.
II. Whether a modified injunction comports with a remand order is reviewed de novo. See Ball v. LeBlanc, 881 F.3d 346, 350–51 (5th Cir. 2018). The district court must “implement both the letter and the spirit of the appellate court’s mandate and . . . not disregard the explicit directives of that court.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). It cannot reopen issues expressly or implicitly decided by the appellate court. Gene & Gene, LLC v. BioPay, LLC, 624 F.3d 698, 702 (5th Cir. 2010). At the same time, the grant of a permanent injunction is reviewed for an abuse of discretion. Stukenberg I, 907 F.3d at 248.
III. The State argues that many of the modified injunction’s provisions are improper, either because they are inconsistent with Stukenberg I, are outside the scope of the limited remand, or are substantively problematic. The specific provisions at issue are: (1) the 24-hour-supervision provisions; (2) the face-toface-meeting provision; (3) the workload-study provisions; (4) the integratedcomputer-system provisions; (5) the missing-medical-records provision; (6) the Monitor provisions; and (7) the termination provisions. We take them in that order.
A. In its 2015 liability opinion, the district court prohibited the State from placing children in “foster group homes that lack 24-hour awake-night supervision.” We did not disturb that ruling in Stukenberg I. On remand, the district court expanded the supervision requirement to apply to all PMC placements housing more than six children. The State urges that this expansion improperly exceeds the scope of the limited remand.
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No. 18-40057 In making this argument, the State misconstrues ODonnell v. Goodhart (ODonnell II), where this court considered whether a modified injunction dealing with Texas’s bail system complied with the mandate rule. 900 F.3d 220 (5th Cir. 2018). In a previous case, we had vacated the original preliminary injunction over the bail system and remanded so that the district court could “craft a revised injunction—one that is narrowly tailored to cure the constitutional deficiencies the district court properly identified.” ODonnell v. Harris Cty. (ODonnell I), 892 F.3d 147, 166–67 (5th Cir. 2018). In ODonnell II, this court found that a particular provision fell “outside the confines of [the] narrow remand” because it addressed a problem not “originally identified” by the district court. 900 F.3d at 225. This court continued: “Remand is not the time to bring new issues that could have been raised initially.” Id. Such is not the case here. In Stukenberg I, we recognized that the 24hour-supervision requirement had remedied the “most egregious” problem with the foster group homes: a “lack of adequate supervision.” 907 F.3d 237, 270. The district court’s original injunction addressed that violation, albeit in an overbroad manner. Indeed, we invalidated the original provision prohibiting “any family-like placement that houses more than six children” because we failed to see why—absent the supervision problems—the conditions in the foster group homes unconstitutionally amplified the risk of harm to the children. Id. at 270, 282. In contrast, rather than outright banning placements housing more than six children, the modified injunction simply requires 24-hour-supervision. In doing so, it hews more closely to the violation identified in Stukenberg I: the lack of proper supervision. Thus, this case is unlike ODonnell II, as the district court has not attempted to rectify a newly identified problem. In addition to its primary argument, the State also notes that the modified injunction’s 24-hour-supervision requirement would apply not only to
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No. 18-40057 LFC placements but also to unlicensed placements, such as kinship placements in which a child is placed with a relative. This would be problematic. Plaintiffs do not object to modifying the requirement to clarify that it applies only to LFC placements. So we do exactly that. The 24-hour-supervision requirement is affirmed with the modification that it applies only to LFC placements, not unlicensed placements.
B. In Stukenberg I, we invalidated many “caseload-specific injunction provisions.” 907 F.3d at 274. We did so because they “exceed[ed] what [was] required to achieve constitutional compliance or [did] not directly address the problems giving rise to the caseload management violation.” Id. Among the provisions struck down for these reasons was one prohibiting DFPS from using I-See-You (ISY) workers.1 Id. Despite our elimination of this provision, the district court reinserted a similar one in the modified injunction. The injunction now requires that all monthly face-to-face meetings with the PMC children be conducted by primary caseworkers, not ISY workers. The State argues that the new provision is a reincarnation of the invalidated one banning the use of ISY workers. While nominally allowing ISY workers to exist, the new face-to-face provision eliminates their primary responsibility. Thus, the State argues that it is inconsistent with Stukenberg I. In response, Plaintiffs exclaim that the face-to-face provision is one of the modified injunction’s most important. On their account, it “directly addresses the fundamental problems with the State’s existing practices with regard to secondary caseworkers.” They then spill much ink pointing out the
1 ISY workers are secondary caseworkers who help the primary caseworkers. 907 F.3d at 245. They do so mainly by conducting in-home visits and confirming that the child “is still there.” Id.
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Case: 18-40057 Document: 00515024789 Page: 6 Date Filed: 07/08/2019
No. 18-40057 deficiencies of ISY workers when it comes to conducting face-to-face visits with the PMC children and the virtues of requiring primary caseworkers (who have more training and experience) to conduct all face-to-face visits.
While Plaintiffs are correct that the State’s use of ISY workers has many problems, their argument fails to acknowledge that we did not find those problems constitutionally suspect in Stukenberg I. We discussed the insufficiency of ISY workers solely to show that DFPS’s use of them did not show a reasonable effort to alleviate the substantial risks associated with overburdened primary caseworkers. 907 F.3d at 262–63. It was the crushing workload on primary caseworkers—not ISY workers’ face-to-face visits—that we held violated Plaintiffs’ substantive-due-process rights. Id. at 264–65. And it is in relation to that violation that the district court was supposed to revise the injunction.
With this violation in mind, the modified injunction’s face-to-face provision cannot stand. Imposing on primary caseworkers the additional duty of conducting all face-to-face visits no more “directly address[es] the problems giving rise to the caseload management violation” than does the invalidated provision eliminating ISY workers. Id. at 274. In fact, it would likely increase their workload. It appears that this provision was the district court’s wellintentioned attempt to fix the problems with ISY workers’ face-to-face visits. But eliminating those problems was not what the district court was charged with doing on remand.
The face-to-face provision is vacated as being inconsistent with Stukenberg I.
C. The first time around, we struck down the caseload caps on primary caseworkers and the Residential Child Care Licensing (RCCL) investigators, but we also made clear that DFPS should “determine how many cases, on
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No. 18-40057 average, caseworkers” and RCCL investigators can safely manage and should then establish internal guidelines for caseload ranges. Stukenberg I, 907 F.3d at 274, 279. On remand, the district court implemented this recommendation by ordering DFPS to conduct workload studies as to both types of workers. Yet it did not leave the studies’ planning and execution solely in the hands of DFPS. Instead, it stated that “DFPS, in consultation with and under supervision of the Monitors, shall propose [workload studies]” at which point the court would “convene a hearing to review the proposal[s].”
The State contends that by requiring the workload studies to be done under the Monitors’ and the court’s supervision, the district court deviated from Stukenberg I’s instructions. The Stukenberg I opinion makes clear, the State says, that DFPS should be able to determine—all on its own—how many cases, on average, caseworkers and RCCL investigators can safely carry.
We reject the State’s argument. The district court undoubtedly has the equitable power to oversee compliance with its own injunction. The supervision requirement over the workload studies simply makes explicit that implicit power. We do not read Stukenberg I as forbidding the court from exercising control and supervision over the workload studies—especially when the State has a history of conducting them inadequately. See 907 F.3d at 261. Moreover, despite the supervision and input from the Monitors and the district court, DFPS will still be involved in designing and conducting the workload studies, and reaching conclusions from them. All this is to say, the district court’s supervision requirement is faithful to the spirit of Stukenberg I and does not do clear violence to its letter.2 See Lee, 358 F.3d at 321 (noting that the district
2 The State also complains that it is impossible to design and conduct the studies within the 60-day timeframe the district court imposed. Should that be the case, the State can always move for an extension, which the court should generously consider.
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Case: 18-40057 Document: 00515024789 Page: 8 Date Filed: 07/08/2019
No. 18-40057 court must “implement both the letter and the spirit of the appellate court’s mandate”).
D. Next, we turn to the integrated-computer-system requirement. We previously upheld the original injunction’s provision demanding the creation of an “integrated computer system” containing the PMC children’s “complete records, including but not limited to a complete migration of all medical, dental, educational, placement recommendations, court records, mental health and caseworker records.” Stukenberg I, 907 F.3d at 282–83. The district court reincorporated this provision into the modified injunction and also included a provision giving all relevant personnel access to the complete records in the integrated computer system.3 The State does not deny that the district court faithfully adhered to Stukenberg I by reincorporating these provisions. Nor could it. Rather, it seeks to reargue on the merits that the integrated-computer-system requirement should be invalidated because it is unprecedented, tremendously expensive, and maybe even impossible to accomplish. We treat the State’s request as a quasi-motion for reconsideration on this issue.4 And after careful review, we see that our initial decision upholding the integrated computer system was erroneous. It is inconsistent with the broader
3 In Stukenberg I, we did not expressly validate the requirement that all personnel have access to the complete records. We inadvertently listed the provision creating the computer system twice, instead of listing the accompanying access provision. 907 F.3d 282– 83. No one disputes that Stukenberg I intended to validate the access provision as well.
4 We can do so because the mandate has not issued in Stukenberg I; the remand was limited, and we retained jurisdiction. But by saying the mandate never issued, we do not mean to suggest that the district court was free to disregard Stukenberg I. It was not. Consequently, it is appropriate—as we have done throughout this opinion—to use the mandate rule (technically not quite on point) to evaluate the district court’s compliance with Stukenberg I. We hold only that we, as the appellate panel that issued Stukenberg I, can reconsider our own prior holdings after a limited remand when the mandate never issued.
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No. 18-40057 remedial principles we laid out in Stukenberg I. The multimillion-dollar computer-system overhaul—while maybe a best practice—goes well beyond what is minimally required to remedy the caseload and oversight violations. Indeed, we find it (just like the caseload cap) to be “too blunt a remedy for a complex problem.” 907 F.3d at 274. An integrated computer system, which at most two other States use, cannot represent the constitutional floor for recordkeeping.
Accordingly, we now invalidate the integrated-computer-system requirement and the accompanying access provision. The goal is a constitutionally effective foster-care program, not a specific kind of computer system used to help achieve that goal.
E. Invoking our expressed validation of the integrated computer system, the district court ordered DFPS on remand “to address and remediate missing and nonexistent medical and mental health care records.” According to the district court, a comprehensive computer system “would not be effective for preventing an unreasonable risk of serious harm if medical records were missing or nonexistent.” Because we have invalidated the integrated computer system, there is no longer a justification for this provision. Therefore, it is vacated as well.
F. Next up are the Monitor provisions. The original injunction contained 13 provisions appointing and listing the Monitors’ duties. We did not address those provisions in Stukenberg I. The modified injunction includes those 13 original provisions plus 3 new ones. The new provisions (1) give the Monitors remote access to the electronic systems DFPS uses to store data about the PMC children, (2) compel DFPS to “supply the Monitors [with] raw data relevant to the 2015–2016 workstudy conducted by DFPS” and all the available data
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No. 18-40057 “relevant to all previous third-party studies,” and (3) command the State to pay the Monitors. The State lodges both procedural and substantive attacks against these provisions.
On the procedural side, the State argues that the limited remand is not the time to impose new requirements that could have been included in the original permanent injunction. For support, the State again draws on ODonnell II. But once more it is distinguishable. The problematic injunctive provision in ODonnell II was substantive. It attempted to remedy a constitutional deficiency the original injunction did not identify. 900 F.3d 220 at 225. The Monitor provisions, on the other hand, are administrative. They do not attempt to solve a new constitutional puzzle originally left unaddressed by the district court; they simply represent the district court’s revised attempt to ensure that the State fixes the constitutional problems it identified (and we affirmed) in the original injunction.
As the State’s procedural argument is unavailing, we now turn to its substantive objections, which concern the remote access and third-party data.5
First, the State argues that the new provision providing the “Monitors, their staff[,] and consultants with unrestricted, routine and ongoing remote access” to DFPS’s electronic systems is a serious confidentiality risk and could result in the inadvertent alteration or destruction of vital records. The State is primarily concerned with giving such unrestricted access to the staff and consultants without requiring them to keep the information confidential. As the State correctly points out, they may not be qualified to handle such sensitive information. The district court’s failure to address these legitimate confidentiality concerns was an abuse of discretion. So while we affirm the
5 The State has no substantive complaints about the provision compelling it to compensate the Monitors.
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No. 18-40057 remote-access provision, we modify the injunction to require that any of the Monitors’ staff and consultants who have unrestricted, remote access to DFPS’s systems be qualified to handle the information (including screening for criminal history), be taught how to use the systems, and be given confidentiality agreements to sign.
Second, the State argues that requiring DFPS to turn over “all available raw data relevant to all previous third-party studies” is overly burdensome, wasteful, and has no conceivable benefit. Plaintiffs do not contest this point in their brief. And we agree that requiring the State to turn over this data was an abuse of discretion. The district court made no findings justifying such an expensive and time-consuming production. Nor did it state what the purpose of doing so would be. We vacate the injunctive provision dealing with the previous third-party studies. This vacatur does not apply to the data relevant to the 2015–2016 workstudy to which the State has no objection.
G. Finally, the State objects to the modified injunction’s termination provisions. These same provisions were in the original injunction, yet we heard nothing from the State about them in the original appeal. The State cannot now challenge these provisions. It is too late for that. The State’s arguments are waived. See Med. Ctr. Pharmacy v Holder, 634 F.3d 830, 834 (5th Cir. 2011) (“The waiver doctrine bars consideration of an issue that a party could have raised in an earlier appeal in the case.” (quotation omitted)).
IV. As an administrative matter, Plaintiffs would like the stay lifted in full. We decline to do so, and the stay will remain in place until the final mandate issues.
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Case: 18-40057 Document: 00515024789 Page: 12 Date Filed: 07/08/2019 No. 18-40057 * * *
For the foregoing reasons, we AFFIRM in part, AFFIRM with MODIFICATION in part, and VACATE in part. The case is remanded to the district court to begin implementing, without further changes, the modified injunction with the alterations we have made.
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No. 18-40057 PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting as to parts III.D and III.E, and otherwise concurring.
I cannot join the majority’s continued erasing of relief carefully constructed by the district court to remedy DFPS’s recognized constitutional violations.1 With this agency the devil is in the details, and the district court structured a remedy with particularized provisions, responsive to its detailed factual findings and focused study by its appointed Special Masters. This panel unanimously upheld several important and strong directives, but the majority simultaneously removed others that were essential to remediating the State’s deliberate indifference. In doing so, the majority did not engage the district court’s detailed factual findings underlying its remedial relief. It rather dispatched groups of provisions as superfluous and not narrowly tailored to the constitutional wrong with no deference to those findings.2
Today, I turn to the most recent of the majority’s excisions, affecting an area of overarching importance: a records system, not a backwards-looking retention of data, but rather a forward-looking process that would empower enfeebled caseworkers and bring needed administrative transparency, serving a role not unlike medical records in a hospital—a necessity. Indeed, with its first myriad excisions of remedies targeting specific problems—not least vacatur of the caseload cap requirement, addressing the core problem of overloaded caseworkers—the majority left the record system in place, leaving it to play an even greater role, one central to the remedy for the found constitutional wrong. And now the majority strikes even the provisions for creating an integrated record keeping process.
1 The attached Appendix sets out the previously excised remedial provisions, along with the majority’s rationale for each removal. See Appendix, infra.
2 See M.D. by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237, 297–303 (5th Cir. 2018) (Higginbotham, J., concurring in part and dissenting in part).
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No. 18-40057 With respect, in vacating provisions ordering DFPS to create an integrated computer system to rationalize record keeping for PMC children, the majority completes its walk away from the district court’s interlaced remedial scheme, taking away provisions essential to its success. Simply put, these removed injunctive provisions would strike at DFPS’s administrative chaos and inefficiency, problems at the heart of the agency’s failure to protect the thousands of PMC children entrusted to its custody. Recognizing this, we unanimously affirmed their inclusion in Stukenberg I. Nothing has changed in law, fact, or argument, yet the majority vacates these provisions today, a decision flawed by the evidence and controlling legal principles.
I. The State did not previously challenge our decision in Stukenberg I. To the contrary, we remanded “for modification [of the injunction] consistent with th[e] opinion.”3 On remand, determined to protect its earlier successful efforts to strip many injunctive provisions in Stukenberg I, the State reminded the district court that the scope of the remand was “narrow,” and that,
The Court should address only the language and provisions in the Final Order that the Fifth Circuit identified as requiring modification . . . adher[ing] strictly to the Fifth Circuit’s directives and reasoning when modifying the remedial provisions. . . . Issues or arguments that are not expressly addressed in the Fifth Circuit’s non-dispositive opinion are beyond the scope of a limited remand. Our remand order contemplated that these same limitations of scope would apply to any further appeal from the remand, for the review would be only of the district court’s modifications of the injunctive relief, that is, for
3 Id. at 288 (majority opinion).
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No. 18-40057
compliance with our remand order. So, when the State filed its notice of appeal,
we stayed implementation of the district court’s order, stating,
The district court’s original injunctive order included provisions that were not challenged, provisions that were challenged and upheld, and provisions that were challenged and invalidated by this court. Although the appellants’ brief has not yet been filed, we assume that the issue on this new appeal is whether the ordered modifications were implemented. The State then filed its brief urging error in the district court’s
implementation of our modifications. Consistent with its efforts to preserve its
earlier success, it had not objected to the integrated computer system
provisions in the district court on remand. Now, it timorously asks this court
to “reevaluat[e]” the integrated computer system provisions, tacking on a new
argument in six pages of a 55-page brief. At oral argument, the State’s counsel
concentrated on modification issues, only asking that we revisit the record-
keeping request with a nigh off-the-cuff contention that Stukenberg I had
demanded “best practices,” that, to counsel’s knowledge, no other state uses
such an integrated digital system. Plaintiffs’ counsel responded that at least
three other states have used integrated systems for years—with no argument
to the contrary from the State’s counsel in reply.4 For example, in Tennessee,
4 Texas does not stand alone in currently facing litigation over its foster care system based in part on deficient record-keeping. See Complaint at 59–61, McIntyre ex rel. M.B. v. Colyer, No. 18-cv-2617 (D. Kan. Nov. 16, 2018), ECF No. 1 (describing data failures in Kansas’s foster care system, including failure to adequately document children’s mental health needs and information about monthly visits); First Amended Complaint at 29–34, M.B. by Eggemeyer v. Tidball, No. 2:17-cv-4102-NKL (W.D. Mo. July 3, 2017), ECF No. 22 (describing the Missouri foster care system’s failure to maintain centralized medical records for children in its care). Indeed, since the 1990s, courts have played a role in requiring states to update their digital record-keeping in response to litigation over constitutional inadequacies in their foster care systems. See Modified Final Order at 64–73, LaShawn A. by Moore v. Dixon, No. 1:89-cv-01754-TFH (D.D.C. Nov. 18, 1993) (requiring a “unitary computerized information system that will record and report information sufficient to permit Department social workers and administrators to achieve compliance with relevant
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No. 18-40057
one of the states the plaintiffs named, a modernized digital records system has
contributed significantly to the turnaround in that state’s child welfare system.5 The majority, in a complete about-face, vacates the integrated
computer system provisions. This without a change in law or fact since the
filing of our opinion in Stukenberg I, and where the reexamination of these
provisions is plainly beyond the crafted scope of our remand order.
Limited remands play a useful, but restricted, role. We grant a limited
remand where we task a district court to answer a discrete question necessary
for resolution of an issue before us. We retain jurisdiction to enable a return for resolution of those issues yet pending before us.6 That is not this case. Stukenberg I finally decided the issues before us on that appeal. It “remand[ed]
the permanent injunction for modification consistent with th[e] opinion,”
providing that “should either party seek appellate review following
modification of the injunction by the district court, the appeal will be assigned to this panel.”7 There was no supplemental finding the district court needed to
make or explanation to give for Stukenberg I to become final. If neither party
had appealed, the implementation of Stukenberg I—the only issue before the
provisions of District of Columbia law and with all the provisions of this Order”); Consent Decree at 109–12, Juan F. by Lynch v. O’Neill, No. 2:89 CV 859 (SRU) (D. Conn. Jan 7, 1991), ECF No. 90 (establishing a committee to develop a “single statewide networked computer system” that would include case file information for each child).
5 See Kim Coleman & Jim Coleman, Years of System-Wide Reform Results in Massive Turnaround for Tennessee’s Child Welfare System, HIGH GROUND NEWS (Aug. 9, 2017), available at http://www.highgroundnews.com/features/HistoricRulingDCS.aspx.
6 See, e.g., United States v. Gomez, 905 F.3d 347, 354–56 (5th Cir. 2018) (granting a limited remand for the district court to state whether it wished to modify its sentence given Supreme Court authority it had not appeared to consider); Sultana Entm’t, L.L.C. v. Gutierrez, 740 F. App’x 81, 82 (5th Cir. 2018) (per curiam) (for the district court to explain its balancing of factors in dismissing a case for forum non conveniens); United States v. Cessa, 861 F.3d 121, 133 (5th Cir. 2017) (for the district court to make further findings on the suppression and materiality elements of a Brady claim); United States v. Rocha, 164 F. App’x 481, 481 (5th Cir. 2006) (per curiam) (for the district court to make findings regarding how to classify a defendant’s offense of conviction for sentencing purposes).
7 See Stukenberg I, 907 F.3d at 288.
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No. 18-40057 district court—would not have returned to this court. We did not intend to retain jurisdiction over this case beyond the directive that any appeal promptly lodged should be assigned to this panel.
The majority asserts that the mandate did not issue in Stukenberg I, and it is free to treat the State’s arguments against the integrated computer system provisions as a “quasi-motion for reconsideration.” Whatever that may mean, even if the mandate did not issue—a matter of considerable uncertainty—the State elected to put its substantial success in attacking the district court’s order in its pocket, not to be revisited. It filed no petition for rehearing with this court and carefully insisted upon the narrow issues the remand order put before the district court. We have a settled process for reconsideration of panel decisions before the mandate issues in the form of a petition for panel rehearing. That process requires a litigant to “state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended.”8 Concerns about timeliness aside,9 the State does not argue that Stukenberg I “overlooked” or “misapprehended” a point of fact or law concerning the integrated computer system provisions. Nor can it. The State’s initial argument against those provisions in Stukenberg I was only a brief statement that the provisions were among several injunctive provisions unsupported by expert testimony and an even more conclusory statement that the plaintiffs have no constitutional right to an integrated computer system. It is telling that the majority makes no effort to justify its decision to reconsider beyond concluding that “after careful review,” it is convinced the relevant
8 FED. R. APP. PROC. 40(a)(2); see Boeta v. Fed. Aviation Admin., 736 F. App’x 453, 457 (5th Cir. 2018) (per curiam) (explaining that the proper mechanism for challenging a remand directive is to petition for panel rehearing, not to appeal from an order on remand).
9 See, e.g., Uranga v. Davis, 893 F.3d 282, 286 n.20 (5th Cir. 2018) (declining to consider a claim in a habeas litigant’s opening brief because it was essentially an untimely attempt to seek reconsideration of the ruling on his motion for a certificate of appealability).
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No. 18-40057 portion of Stukenberg I was “erroneous.” The majority abuses Stukenberg I’s mistaken label of a “limited remand.”
II. The decision to vacate the integrated computer system provisions is misguided. Each element of the injunction must be viewed not in isolation but as a part of a broad “remedy with interacting parts, which as a totality redresses the constitutional wrong, itself not a single act but a collection of practices that together inflict injuries on PMC children.”10 The integrated computer system provisions originate in the district court’s years of study of DFPS, aided by the Special Masters. In its December 2015 liability opinion, the district court attributed PMC children’s epidemic of physical and sexual abuse to, among other factors, DFPS’s organizational and administrative chaos.11 The court found the agency’s records “incredibly disorganized,”12 retained in numerous uncoordinated digital databases, as well as in paper files located with children’s residences, placement agencies, caseworker offices, and medical service providers. Records addressing abuse and neglect investigations are maintained separately from case files, in a database to which caseworkers do not always have access.13 The court found that DFPS’s “outdated” digital system “impede[s] caseworkers’ ability to review important electronic case file information” because it is “not in sync with current versions of forms that are used [by caseworkers]”—the inconsistencies “force[] arbitrary workarounds and repetitive entry of data.”14
10 Stukenberg I, 907 F.3d at 302 (Higginbotham, J., concurring in part and dissenting in part).
11 M.D. v. Abbott, 152 F. Supp. 3d 684, 780 (S.D. Tex. 2015). 12 Id. at 781. 13 Id. 14 Id. (internal quotation marks omitted).
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Case: 18-40057 Document: 00515024789 Page: 19 Date Filed: 07/08/2019
No. 18-40057 The district court’s December 2015 liability opinion observed that DFPS’s record keeping leaves caseworkers ignorant of children’s status, with harmful results for the children. “[C]aseworkers continuously fail to maintain complete, timely, and accurate documentation,”15 generating “opportunities for important safety-related tasks to fall through the cracks, especially when cases are transferred between workers.”16 Caseworkers—children’s “lifeline [and] connection to everything”17—spend nearly three quarters of their time in administrative work, and only the remainder working with families and children.18 Even where a caseworker has time to care for a child, the inaccessibility of information limits the help a caseworker can provide, for example, where records leave caseworkers unaware that a child is a survivor of sexual abuse. The situation of the plaintiff S.A., whose story opened my opinion in Stukenberg I, is illustrative. It presents a narrative the district court found representative of the ongoing failures in DFPS’s care for 12,000 PMC children, an exercise we found to be the product of more than a decade of deliberate indifference—a denial of fundamental constitutionally secured rights. As related before, within four months of entering Texas’s foster care system, S.A. made her first sexual abuse outcry.19 In response, the State requested an investigation by her private placement agency. But following the investigation, the private placement agency retained the report and no copy was deposited in DFPS’s casefile.20 As a result “no subsequent caseworker would have this information,”21 meaning that S.A.’s caseworkers made
15 Id. 16 Id. (internal quotation marks omitted). 17 Id. at 776 (internal quotation marks omitted). 18 Id. at 780. 19 Id. at 731. 20 Id. at 732. 21 Id.
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No. 18-40057 decisions regarding her housing, medical care, education, and general physical well-being while potentially uninformed of the life-changing trauma she experienced under DFPS care. It was in this context that the opinion concluded that “DFPS[’s] paperwork and electronic filing system . . . must become more efficient [and each] child should have a readily accessible and organized case file, comprised of all records pertaining to that child.”22
Pursuant to the district court’s liability opinion, the court-appointed Special Masters Kevin Ryan and Francis McGovern studied DFPS recordkeeping practices. In July 2016, the Special Masters reported DFPS’s representations that the agency’s modernization of its IMPACT system was close to unifying PMC children’s records, and that the agency was requesting appropriations to complete this work. While the Special Masters recognized this modernization effort may not completely address the district court’s concerns regarding record-keeping, they were “encouraged that the State . . . [wa]s on the right path here.” DFPS indicated that it was on track to report the establishment of a centralized system by the Fall of 2016.
That hope was dashed, and in November 2016 the Special Masters submitted recommendations to the district court, including that
DFPS submit a plan with specific timeframes, subject to Court approval, to ensure that DFPS staff and contractors working with PMC children have access to all the case information they need to serve children in one centralized place. . . . The DFPS plan should ensure that DFPS caseworkers and supervisors serving PMC children, as well as CASA staff and volunteers . . . have access to an integrated, current, complete, and accurate case record for PMC children on their caseloads . . .
22 Id. at 825.
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No. 18-40057 In response, the State objected to every one of the Special Masters’ recommendations, including the integrated computer system provisions, arguing they were “not . . . tailored to remediate a constitutional violation because there is no reliable evidence that DFPS’s existing systems for maintaining and accessing PMC children’s case records pose a substantial, class-wide risk of depriving PMC children of personal security and reasonably safe living conditions and no reliable evidence shows that adopting the Special Masters’ recommendation will eliminate that purported constitutional harm.” The State further “object[ed] because of the logistical challenges of implementing the full recommendation,” stating:
It is not practical or fair to require third parties such as [child placing agencies], who operate much smaller businesses without the same level of IT capabilities, to completely change their software to match that of DFPS. DFPS depends on the highest level quality [child placing agencies] and does not wish to impose unnecessary disincentives on these often small, faith-based, and/or non-profit organizations. The State also objected on the grounds that the comingling of records might compromise confidentiality and run afoul of, for example, federal laws protecting substance-abuse treatment records. Responding to this new impasse, in January 2017, the district court entered an interim order addressing the Special Masters’ recommendations and the State’s objections, determining that “[f]urther studies and consultations between the Special Masters, the Court, and the State are necessary before a final order can be entered.” Relevant here, the district court ordered the Special Masters “to work with DFPS to create and submit to the Court a plan for a comprehensive central databank for PMC children” and to “report the progress of the central databank creation to the Court within three months from the date of this Order.”
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Case: 18-40057 Document: 00515024789 Page: 22 Date Filed: 07/08/2019
No. 18-40057 In March 2017, following a status conference at which the parties and Special Master discussed the “availability of records regarding medical, dental, mental health, and educational issues,” DFPS agreed “to provide complete responses to the Special Masters from its IT Department concerning the modernization of the IMPACT system, including but not limited to the capacity to include all the children’s records in one system.” In the following months the Special Masters’ team corresponded and met with DFPS staff to discuss record keeping and to test the existing systems by examining a random sample of PMC children’s records. Through these tests, the Special Masters found that health data and casefile records “did not align nearly half the time.” DFPS’s healthcare vendor, Superior Healthcare, maintained children’s health records in a database “not compatible with, or linked to” the DFPS’s casefile system. Neither DFPS nor its vendor’s systems were capable of uploading and storing documents such as birth certificates medical, dental, and psychological evaluations. Instead, paper files were supposedly retained in the child’s placement, private placement agencies, the caseworker’s office, schools, or medical providers’ places of business. But when the Special Masters visited a random sample of Foster Group Homes, they found that for many children records that should have been maintained on site were not available for inspection. The Special Masters presented findings and proposed solutions in a December 2017 final report to the court. This report corroborates the district court’s observations:
DFPS maintains PMC children’s records among numerous electronic and paper files, stored in different locations and maintained by distinct custodians. As the Court determined, the trial record, including exhibits, revealed evidence of children’s records missing information, containing incomplete information and reflecting information that was
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Case: 18-40057 Document: 00515024789 Page: 23 Date Filed: 07/08/2019
No. 18-40057 inconsistent with information in other files. The Special Masters’ examination of these case records among the trial exhibits, and other children’s records as described below, confirmed that PMC children’s records are currently stored in different locations with different custodians. Based upon their examination, the Special Masters proposed that “[w]ithin four months of the Court’s Final Order, DFPS . . . submit to the Court a plan for an integrated computer system” including complete medical, dental, educational, placement, court, mental-health and casefile records, documentation of visits with service providers, with test results, treatment plans, “and any other information necessary for the safety of the children.” They recommended that the system be in place within a year of the district court’s final order. Objecting to the Special Master’s latest proposal, the State argued to the district court that “there is no reliable evidence that DFPS’s existing systems for maintaining and accessing PMC children’s case records pose a substantial, class-wide risk of depriving PMC children of personal security and reasonably safe living conditions.” Judge Jack disagreed. Quoting directly from her 2015 liability opinion, describing the Special Masters’ findings, and drawing upon examples of several named plaintiffs, she overruled the objection:
Due to DFPS’s burdensome administrative demands, such as filling out paperwork, [] caseworkers are only able to spend 26% of their time with children. . . . In its December 2015 Order, the Court noted it took eleven uninterrupted workweeks to read the twenty foster children’s case files that were in evidence[,] in excess of 350,000 pages. Considering the dangerously high turnover rate, this task must be duplicated numerous times for each child, making it impossible for caseworkers to have enough time to focus on the children.
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Case: 18-40057 Document: 00515024789 Page: 24 Date Filed: 07/08/2019
No. 18-40057 The district court’s January 2018 Final Order adopts the Special Masters’ proposed integrated computer system provisions, demanding a plan from the State within four months, to be realized within one year. Today, the majority vacates these provisions, stating only that there is no constitutional right to an integrated computer system—of course, just as there is no freestanding constitutionally secured right to be bused to school. The question is not whether the Constitution guarantees a freestanding right to an integrated computer system. Rather, it is whether the integrated computer system provision is a necessary part of a remedy “narrowly tailor[ed] . . . to remedy the specific action which gives rise to the order,”23 here, Texas’s constitutional wrongs. As with all exercises of equitable power, “the nature of the violation determines the scope of the remedy.”24 For compliance with the command that an injunction be narrowly tailored, we look to the fit of ends and means and to the factual matrix tying those ends and means. This matrix of fact is before us, unchallenged, and in Stukenberg I we upheld the district court’s integrated computer provisions as a remedial response to the found constitutional wrongs. The district court did not abuse its discretion by insisting that the integrated computer system provisions directly address a cardinal element of the constitutional wrong.25 As we found in Stukenberg I, DFPS’s “records and case files are outdated and woefully incomplete”26 with information in such an
23 Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 586 (5th Cir. 2013).
24 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971). 25 ODonnell v. Harris Cty., 892 F.3d 147, 155 (5th Cir. 2018) (“This court reviews a district court’s grant of a preliminary injunction . . . for abuse of discretion. Findings of fact are reviewed only for clear error; legal conclusions are subject to de novo review.” (internal citations and quotation marks omitted)). 26 Stukenberg I, 907 F.3d at 260.
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No. 18-40057 “abysmal state”27 that to find a record requires a “needle-in-a-haystack search.”28 To address this problem—and its role in DFPS’s constitutional violations—“[a]n improved record-keeping practice w[ould] reduce caseworkers’ overall workloads. It would also centralize and make accessible data critical to making safe placement decisions. . . . [A]ccess to comprehensive medical information, mental health records, and placement history for individual children would assist [the agency] in making an informed assessment about abuse allegations.”29 We upheld provisions that will require DFPS to identify child-on-child sexual abuse and to record confirmed allegations of abuse and sexual aggression in a child’s casefile.30 An integrated digitized record system, together with these abuse-recording requirements, would serve to ensure that information critical to each PMC child’s welfare is available and accessible to that child’s caseworker, a precondition to the child’s safety and care.
Caseworker access to a PMC child’s comprehensive record was made all the more important by the majority’s vacatur of the caseload cap provisions. The district court had originally included the integrated computer provisions in a final order that also required that a PMC child’s caseworker handle no more than 14 to 17 children’s cases at a time. The district court determined this range was necessary based on the Child Welfare League of America’s standard for minimum acceptable care,31 as well as DFPS’s own Work Measurement Study.32 The majority vacated the caseload cap—a key element
27 Id. at 255 n.24. 28 Id. 29 Id. at 282. 30 See, e.g., id. at 278 (upholding provisions requiring DFPS to create a record of confirmed allegations of sexual abuse involving a child as victim or aggressor). 31 See id. at 300 (Higginbotham, J., concurring in part and dissenting in part) (discussing the district court’s reliance on CWLA standards). 32 See id. at 300–01.
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No. 18-40057 of the injunction—leaving DFPS instead to develop “internal standards” to guide caseload distribution. The allowance was made in a situation in which caseworkers are sometimes assigned 40 to 60 cases at a time,33 and caseworker positions turn over at 25 percent during the first year and 43 percent by the end of the second.34 Given how stretched caseworkers are in the absence of caseload caps, and the centrality of their attention and care in a child’s care, the district court’s insistence on integrated digital records was even more important. Integrated digitized records would enable caseworkers to concentrate on casework, that is, on children, as opposed to the administrative tasks currently occupying nearly three quarters of their time.
Informational deficiencies play a large role in DFPS’s inability to protect PMC children from abuse and neglect. The district court has so found on a full record. It follows that an integrated computer system is no mere “best practice.” It is an appropriate and necessary part of an injunction narrowly tailored to address caseworker workloads and deficient monitoring. The district court committed no abuse of discretion in adopting these provisions. The majority only announces that it finds the order not narrowly tailored. It refers to no less burdensome alternative—the State presented none. Against the facts upon which we sustained a holding of deliberate indifference, that conclusion is deeply flawed.
III. The State’s principal objections are not to the provisions’ remedial role but to claimed costs, for which it offers no evidence. It asserts that an integrated computer system would entail a “Major Information Resource Project,” requiring legislative approval before the commitment of appropriated
33 Id. at 257 (majority opinion). 34 Id.
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No. 18-40057 funds. Additionally, the State tells us, a new system would create a “logistical nightmare,” requiring the burdens of “vendor solicitation, contract drafting, and contract approval,” followed by design and software development, “data migration and testing . . . to ensure functionality.” The State’s assertions of infeasibility run against the implicit judgment of Special Master Kevin Ryan— not only the former commissioner of New Jersey’s child welfare agency, but also a monitor in the state of Michigan’s reform of its foster-care system and advisor to Oklahoma and Mississippi on reforms of their foster-care systems. The State’s pronouncements that DFPS’s informational shortcomings are “inevitable” in “any state foster care system,” and that no other state has such a system—are unsupported by the record. Plaintiffs point out that “at least Washington, D.C., Tennessee, and New Jersey already use such integrated digital record-keeping systems,” and have done so for years. The reality is that the burdens the State puts forward are no more than part and parcel of its neglect—of its deliberate indifference to the children in its charge; indifference that created a nightmare for essential governance of its foster-care system. Its engagement with the unchallenged reality is to challenge the district court’s remedy as requiring “best practices.” These denials of constitutional right come with their own answers. Best practices are not the handmaiden of deliberate indifference.
There is no support for the majority’s position that an integrated digitized records system would be prohibitively expensive. All we have to rely upon are the conclusory statements of counsel. Counsel told the district court that costs of the reform could approach $10 million, a figure that has increased over tenfold on appeal to “hundreds of millions of dollars” in counsel’s Reply Brief to this court. There is no record basis for any of these figures. These protestations also omit important context, for example, that the agency operates with over twelve thousand employees and a combined budget of $3.1
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No. 18-40057
billion over two years,35 with roughly half of the State’s child-welfare agency
spending covered by federal funds, over $730 million in fiscal year 2016.36 That
is, extending such figures over the past decade, a period during which the State
was deliberately indifferent to the rights of PMC children, its child-welfare
agency has spent billions of dollars from the federal treasury. The appropriate
time to raise bona fide concerns about cost would have been during the Special
Masters’ year of analysis and consultation for a record-keeping reform plan.
But the State did not detail costs then. Rather, it was reluctant to cooperate
further. As the district court stated in its Final Order,
Defendants have known about the Court’s concerns with the IMPACT system since the Court identified them over two years ago in its December 2015 Order. Despite this, Defendants have apparently done little to prepare for eventual reforms. The Special Master asked Defendants to assess and report the time needed to improve IMPACT so that it could store all of a child’s medical, dental, mental health, educational, and court records. Defendants’ response to each of these inquiries was “[n]ot applicable[.] DFPS is not making such changes to the IMPACT system.” Similarly, Defendants responded to the Special Master’s request for a draft plan to achieve the Court’s recordkeeping goals by stating “[n]ot applicable. Texas is not developing such a plan.” Defendants now object, fifteen days after the Plan was filed, that the Plan’s timelines for these goals are “impossible.” Defendants offer no explanation for why they were unable to present the Special Master with the estimate they now present the Court in their Objections, that it could take $10 million and several years to reform IMPACT.
35 Edgar Walters, Pay Caseworkers and Fosters More, Chief Says, THE TEXAS TRIBUNE (July 6, 2016).
36 See, e.g., CHILD TRENDS, Child Welfare Agency Spending in Texas at 1 (2018) available at https://www.childtrends.org/wp-content/uploads/2018/12/Texas_SFY2016CWFS_12.13.2018.pdf (reporting that 47 percent of child-welfare agency spending in Texas is covered by federal funds).
28

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No. 18-40057 Even now, Defendants offer no evidence in support of this estimate. Under these provisions the State retained the initiative to propose a plan to unify digital records, but wholly failed to do so. The integrated computer system provisions have an appropriate and obvious place in the district court’s injunction, narrowly tailored to remedy DFPS’s workload and oversight violations. That reforms deferred for decades have become costly to undertake is not surprising. DFPS’s neglect and indifference have allowed its problems to snowball. After years of litigation, including a two-week bench trial and a year-long study by its appointed Special Masters, the district court reached the judgment that DFPS requires integrated digitized records for PMC children in order to remedy its constitutional violations. The State’s unsupported assertions of impracticability do not establish an abuse of the district court’s discretion, nor does its naked assertion that the provisions were not necessary to remedy the wrong, here little more than a recast contention that there was no wrong—no failure of a constitutional dimension.
IV. In sum, the majority’s vacatur of the integrated computer system provisions strikes at the heart of a remedial order responding to the State’s deliberate indifference to the welfare of 12,000 PMC children and the breach of its constitutional command to tend to their care. The State has offered no new circumstances or insights justifying a change in this court’s order— nothing but a nigh casual, off-the-cuff statement by able counsel that such systems are expensive and not deployed by other states, hence an imposition of “best practices.” The State’s assertion regarding use in other states was immediately contradicted at oral argument by opposing counsel, without challenge.
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Case: 18-40057 Document: 00515024789 Page: 30 Date Filed: 07/08/2019
No. 18-40057 To counter the sting of deliberate indifference the State speaks of hundreds of millions of dollars being turned towards the Texas foster care system, yet its answer is only that a new system is too expensive, that with a few patches it can make do with the present system—a stunning assertion that ignores the obvious question: why then only now? We must keep ever in mind the long-reaching consequences of this dysfunctional system. In fiscal year 2017, six years after this suit was filed, 38 TMC and PMC children died in DFPS custody; 554 children spent two or more consecutive nights in hotels or government office buildings; meanwhile, 352 caseworkers voluntarily ended their employment with DFPS. Aside from the suffering of children within state custody, as I described in Stukenberg I, 1,300 to 1,400 PMC children age out of DFPS care every year.37 These aged-out children “lack independent living skills” and are unprepared for adult life; according to a witness who runs a non-profit to help aged-out children, “[t]hey do not know how to answer a phone, take or leave a message, cook a meal for themselves, or load a dishwasher. They do not know how to fill out a job application, let alone drive a car to get to work.”38 Former foster youths suffer from post-traumatic stress disorder at nearly five times the rate of the general population and nearly twice the rate of United States combat veterans.39 Around 27 percent of children aging out of care end up in the criminal-justice system, and a third become homeless.40 Once homeless, one out of three will become involved in prostitution; according to one amicus, “the Texas child welfare system is effectively supplying the sex-trafficking industry with current and former
37 Stukenberg I, 907 F.3d at 292 (Higginbotham, J., concurring in part and dissenting in part).
38 M.D., 152 F. Supp. 3d at 790. 39 Id. 40 Stukenberg I, 907 F.3d at 292 (Higginbotham, J., concurring in part and dissenting in part).
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No. 18-40057 foster youth.”41 Among female former-PMC children, 49 percent become pregnant within a year of aging out; 70 percent of their children then enter the same foster-care system.42 The social cost of this unreformed system is enormous. Looking past the loss of the forces of basic morality and fairness, the dollar cost to the State entailed by this feedback into government custody by its released charges must far exceed the cost of a sound system.
V. The State’s view of narrow tailoring is transparent. Implicit in a failure to narrowly tailor a remedy is an effective alternative. The facts in the record and the State’s conduct before the district court make plain that its alternative is to leave DFPS’s flawed record-keeping system in place. My colleagues mistakenly only reward the State’s resistance to the orders of the United States District Court. Finally, the State’s approach to these efforts to protect the constitutional rights of our children is now shot through with two rending realities. First, the majority’s talismanic use of “best practices” betrays an anemic view of the State’s constitutional duty to care for the children it takes into its charge. This limpid cast places that duty nigh on a plane of state-owed duties to its convicts, and is in sharp tension with our finding of deliberate indifference.43 Indeed, the majority has excised detailed remedial provisions addressing DFPS’s abject failure to prepare children aging out of PMC custody for safe and productive adult life, a denial of programs the likes of which are routinely afforded to convicts before their reentrance to society. Again, the State’s obligation runs
41 Id. (quoting Brief of Disability Rights Texas as Amicus Curiae at 8). 42 Id. 43 See Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners. . . . [H]aving stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”).
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Case: 18-40057 Document: 00515024789 Page: 32 Date Filed: 07/08/2019
No. 18-40057 not to some abstract universe of “foster-care children,” rather it runs to each of these children as an individual.44 At its core, this obligation must be larger than food, shelter, and sojourns through a succession of public schools. When the State deploys persons termed “I See You” workers to locate its charges it exposes its failure to abide its constitutionally imposed duty. Second, that the State’s fervor for potential life subsides when that potential is realized brings puzzlement that would defy the genius of Fyodor Dostoevsky’s dissection of the human psyche—in simultaneous pursuit of ends in conflict, each with the other.
To these eyes, the State repairs to an unrecognizable view of our federalism—one that elides its core. Federal law is also the State’s law, and the federal court here arrives because the State has refused to fulfill its constitutional duty, one owed to the 12,000 PMC children in its charge. Its reflexive resistance to the federal district court’s remedial orders—both direct confrontation and a refusal to cooperate or otherwise participate in the crafting of a response—bespeaks a view of our federalism inverted to look past the unchallenged finding of this court of the State’s deliberate indifference to the constitutional rights of PMC children, in part a call to account given that half its monies come from the federal treasury. One would think that the presentation ought to be one of cooperative federalism. The State’s noble enterprise to take custody of these children is being hollowed by bureaucratic wrangling and ineptitude, a threatened stain on Texas—and a retreat by this
44 Stukenberg I, 907 F.3d at 302 (Higginbotham, J., concurring in part and dissenting in part) (“Treating a child as an individual—protecting his or her identity as an individual— has long been the concern of human rights conventions, a concern that also lies at the core of the liberty guaranteed in the Fourteenth Amendment.”). This international concern is captured in the poignant words “[t]he child . . . shall have the right from birth to a name.” United Nations Convention on the Rights of the Child, arts. 7–8, 19, Nov. 20, 1989, 28 I.L.M. 1448.
32

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No. 18-40057
court, once a refuge for such innocents, ready to enforce federal law when a
state fails its obligation to do so, as it must.
Five years after the filing of this lawsuit, but soon after the district
court’s finding of deliberate indifference, the Governor appointed a new DFPS
commissioner to “overhaul[] a broken system” and address a “status quo” that
was “unacceptable.”45 A commendable effort, but it now comes alone onto a
stage with lights dimmed by this court’s retreat, leaving as a lonely heuristic
this court’s finding that for more than a decade the State has been deliberately
indifferent to the rights of children in its custody. If the judiciary upholds this
walk away, the audience of the people remains—which for the sake of the
children hopefully will be a sufficient incentive to sustain and expand the late
arriving effort to more fully discharge the State’s duty, in this real world a hope
unlikely to be realized, as pointed out in my earlier dissent:
At least as early as 1996, DFPS was unmoved by the first of the “twenty years of studies conducted or commissioned by the State.” The administration of Governor Perry returned to DFPS’s problems in 2010, pointing out that the agency had still not fixed the problems identified almost fifteen years earlier. Most recently, the district court noticed the current commissioner’s exhortations to reform at DFPS, and his acknowledgments that, as yet, the agency was overwhelmed: “our workers are outnumbered by the opponent—child abuse and neglect.” In its Liability Order, the district court observed that the State had appointed its “seventh commissioner since 2004, each of whom was surely ushered in with promises that this time it will be different.” More than “[t]wo years and
45 Edgar Walters, Abbott Names New Leaders at Embattled Child Welfare Agency, THE TEXAS TRIBUNE (April 11, 2016). This Commissioner recently announced his resignation of the post after three years heading DFPS. Edgar Walters, Texas Child Welfare Chief Hank Whitman Announces Retirement, THE TEXAS TRIBUNE (May 28, 2019). Governor Abbott was elected in 2014, three years after this suit was filed, following service as Texas’s attorney general and as a Justice of the Supreme Court of Texas.
33

Case: 18-40057 Document: 00515024789 Page: 34 Date Filed: 07/08/2019 No. 18-40057
one legislative session” after the liability determination, the constitutional deprivations remained unaddressed. The “foster care system of Texas [was still] broken[.]”46 It is to this history that my colleagues defer—in the name of federalism.
46 Stukenberg I, 907 F.3d at 298 (Higginbotham, J., concurring in part and dissenting in part).
34

Case: 18-40057 Document: 00515024789 Page: 35 Date Filed: 07/08/2019

APPENDIX:

No. 18-40057

Excised Injunctive Provision

Majority’s Rationale

Caseload-Specific Provisions

Caseload-cap mandating a range of 14–17 children per caseworker. Stukenberg I, 907 F.3d at 273–74.

The measure would exacerbate DFPS’s staffing crisis in the short term, and, more broadly, is “too blunt a remedy . . . beyond what [is] minimally required” to remedy the constitutional violation.” Id. at 274. Instead, “DFPS absolutely should determine how many cases, on average, caseworkers are able to safely carry. Based on its determination, DFPS should establish generally applicable, internal caseload standards. . . . as a rough guide for supervisors who are handling caseload distribution, and they should inform DFPS’s hiring goals.” Id. at 274.

Recruitment of new caseworkers. Id.

The measure is “improper . . . either exceed[ing] what is required to achieve constitutional compliance or . . . not directly address[ing] the problems giving rise to the caseload management violation.” Id. Also, it potentially “would unnecessarily add to the volume of work for which caseworkers are responsible, and would increase the time spent managing paperwork and compliance and administrative burdens.” Id.

Comprehensive training and competency Same as previous. Id. at 274. examinations for new caseworkers. Id. at 275.

Monthly face-to-face meetings between caseworkers and each child under their care. Id. at 275.

Same as previous. Id. at 274.

Caseworker training on visitation policies. Id. at Same as previous. Id. at 274. 275.

Quarterly reports on caseworker–child visits. Id. Same as previous. Id. at 274. at 275.

Adherence to agency contact guidelines, including caseworker assessments of each child’s safety and medical, mental-health, and educational needs. Id. at 275.

Same as previous. Id. at 274.

Requirement that supervisors carry no caseload of their own and oversee no more than seven caseworkers. Id. at 275.

Same as previous. Id. at 274.

35

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No. 18-40057
Elimination of the use of “I See You” workers. Id. Same as previous. Id. at 274. at 275.

Monitoring and Oversight Provisions

Establishment of a statewide 24-hour hotline accessible to PMC children to report and record calls concerning abuse and neglect. Id. at 279.

The measure “do[es] not address the discrete issues underlying the violation: the manner in which RCCL documents and investigates allegations of abuse. To the extent that the court is worried about underreporting, this can be remedied by mandating that caseworkers provide children with the appropriate point of contact for reporting issues. The problem with RCCL follow-up is sufficiently addressed by other valid provisions.” Id.

Requirement that all foster homes maintain a Same as previous. Id. landline phone accessible to children. Id.

Requirement that DFPS ensure PMC children The measure would “unnecessarily increase the

are able to access and use the 24-hour hotline. time spent managing administrative burdens.”

Id. at 280

Id. at 279.

Requirement that DFPS record all calls to the Same as previous. Id. at 279. 24-hour abuse and neglect hotline, and store the recordings for two years. Id. at 280.

Requirement that foster caregivers report all Same as previous. Id. at 279. allegations of child on child sexual abuse via the 24-hour hotline. Id. at 280.

Requirement that DFPS track referrals of child- Same as previous. Id. at 279. on-child sexual abuse. Id. at 280.

Quarterly reports on all child-on-child abuse Same as previous. Id. at 279. referrals made to the hotline that have been assigned for investigation. Id. at 280.

Requirement that investigations of abuse and neglect in licensed placements are conducted by staff with caseloads exclusively focused on maltreatment investigations. Id. at 280.

Same as previous. Id. at 279.

Caseload cap of 14 cases for RCCL workers investigating abuse and placement licensing requirements. Id. at 280–81.

The measure is “misguided for substantially the same reasons that caseload caps are ill-advised in the primary caseworker context. Again, however, it would be reasonable for the court to require a comprehensive workload study and the establishment of internal guidelines for caseload ranges based on what DFPS determines RCCL investigators can safely manage.” Id. at 279.

36

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No. 18-40057

Disclosure of redacted licensing inspection reports, including the outcome of the inspection, violations, and the agency’s corrective actions addressing the violations. Id. at 281.

The measure is “not only unnecessary, but . . . also implicates confidentiality concerns.” Id. at 279.

“Crossover” Provisions

Requirement that each PMC child’s case file include a current photograph of the child. Id. at 283.

The measure is “improper” because it is “designed to remedy what the district court believed to be additional, related problems with the foster care system” and is “not calculated to remedy an identified constitutional violation.” Id. Additionally, it potentially would “only increase caseworkers’ administrative burdens.” Id.

Requirement that DFPS obtain a photo of each Same as previous. Id. child within 48 hours of their entering PMC custody. Id.

Requirement that DFPS ensure children under three have photos updated at least semiannually. Id.

Same as previous. Id.

Requirement that DFPS ensure caseworkers have proper training in photographing and uploading pictures of children in their care to the casefile system. Id.

Same as previous. Id.

Provision of a birth certificate and social security Same as previous. Id. card to each PMC child at the age of sixteen. Id.

Provision of educational and medical records to each PMC child prior to their aging out of care. Id. at 283–84

Same as previous. Id. at 283.

Identification by DFPS of PMC children aged 14 or older who have not received independent living preparation services. Id. at 284.

Same as previous. Id. at 283.

Requirement that 14- and 15-year-old PMC children receive the agency’s Preparation for Adult Living services and that 14-year-olds receive a life-skills assessment and transition planning services, with accommodations for disabled PMC children. Id. at 284.

Same as previous. Id. at 283.

Development of a plan for expungement of each child’s eligible criminal or juvenile offense records before the aging out of care. Id. at 284.

Same as previous. Id. at 283.

37

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No. 18-40057

Development of a plan for each child to access benefits for which they are eligible upon aging out. Id. at 285.

Same as previous. Id. at 283.

Provision of driver’s education to eligible PMC Same as previous. Id. at 283. children. Id. at 285.

Creation of email accounts for 14-year-old PMC children for receipt of encrypted personal documents and records. Id. at 285.

Same as previous. Id. at 283.

Appointment of an attorney ad litem for PMC children unrepresented in pending cases. Id. at 285.

Same as previous. Id. at 283.

Development of a plan for reimbursement of PMC children’s attorneys ad litem in those courts that do not provide attorneys ad litem. Id. at 285.

Same as previous. Id. at 283.

Training for caseworkers on child health. Id. at Same as previous. Id. at 283. 285.

Requirement that DFPS make every effort to obtain a child’s medical records within 24 hours of the child entering DFPS custody. Id. at 285.

Same as previous. Id. at 283.

Provision of a “medical home” to provide comprehensive and continuous medical care to each PMC child. Id. at 285.

Same as previous. Id. at 283.

Annual developmental screenings for each PMC Same as previous. Id. at 283. child. Id. at 286.

Casefile system alerts notifying caseworkers of a child’s scheduled medical screenings, immunizations, and appointments. Id. at 286.

Same as previous. Id. at 283.

Regular caseworker verification of each child’s Same as previous. Id. at 283. health status. Id. at 286.

Prohibitions on placing unrelated children more than three years apart in age or in different service levels in the same room. Id. at 286–87.

Same as previous. Id. at 283.

Prohibition on housing children in DFPS offices. Same as previous. Id. at 283. Id. at 287

Placement of PMC children younger than two in family-like settings within six months of the order, children younger than six within 12

Same as previous. Id. at 283.

38

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months, and children under thirteen within 24 months. Id. at 287.
39

Case: 18-40057 Document: 00515024800 Page: 1 Date Filed: 07/08/2019

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130

July 08, 2019

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW

Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

No. 18-40057 M.D., et al v. Greg Abbott, et al USDC No. 2:11-CV-84

--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)

FED. R. APP. P. 39 through 41, and 5TH CIR. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH CIR. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.

Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that this information was given to your client, within the body of your motion to withdraw as counsel.

Case: 18-40057 Document: 00515024800 Page: 2 Date Filed: 07/08/2019
The judgment entered provides that each party to bear its own costs on appeal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________ Nancy F. Dolly, Deputy Clerk
Enclosure(s)
Mr. Noel Terry Adams Jr. Mr. Thomas A. Albright Mr. Michael Kenneth Bartosz Ms. Sara Michelle Bartosz Mr. Stephen Andrew Dixon Mr. Brian D. East Ms. Dori Kornfeld Goldman Ms. Tara Sharee Grigg Garlinghouse Mr. Kyle Douglas Hawkins Mr. Lonny Jacob Hoffman Mr. Richard Phillips Hogan Jr. Mr. Joseph David Hughes Mr. Philip A. Lionberger Ms. Marcia Lowry Mr. Barry Frank McNeil Ms. Christina Wilson Remlin Mr. Reagan William Simpson Mr. Nicholas David Stepp Mr. Christian J. Ward Mr. Richard Paul Yetter

 
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United States District Court Southern District of Texas
ENTERED
November 07, 2019
David J. Bradley, Clerk

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 Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 1 of 88
APPEAL,APPEAL_NAT,FINANCE,MEDIATION
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Corpus Christi)
CIVIL DOCKET FOR CASE #: 2:11−cv−00084

M.D. et al v. Abbott et al Assigned to: Judge Janis Graham Jack Cause: 42:1983 Civil Rights Act
Special Master Francis McGovern
Plaintiff M.D. by next of friend Sarah R. Stukenberg

Date Filed: 03/29/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Aaron Finch Children's Rights 330 Seventh Avenue, 4th Floor New York, NY 10001 212−683−2210 Email: afinch@childrensrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
J A Tony Canales Canales Simonson PC 2601 Morgan Ave Corpus Christi, TX 78465 361−883−0601 Fax: 361−884−7023 Email: tonycanales@canalessimonson.com TERMINATED: 08/27/2013 LEAD ATTORNEY
Joshua Rosenthal Children's Rights 330 Seventh Ave, 4th Fl New York, NY 10001 212−683−2210 Email: jrosenthal@childrensrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Paul Yetter Yetter Coleman LLP 811 Main Street Suite 4100 Houston, TX 77002 713−632−8000 Fax: 713−632−8002 Email: pyetter@yettercoleman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Dembrow Children's Rights 330 Seventh Ave Fourth Fl New York, NY 10001 212 683 2210 Email: adembrow@childrensrights.org TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 2 of 88
Adriana Teresa Luciano Children's Rights 330 7th Ave Fourth Floor New York, NY 10001 212−683−2210 Email: aluciano@childrensrights.org TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Amelia Jean Cardenas Haynes Boone LLP 2323 Victory Ave Suite 700 Dallas, TX 75219 214−651−5062 Email: amelia.cardenas@haynesboone.com TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED
April Lynn Farris Yetter Coleman LLP 811 Main Street Suite 4100 Houston, TX 77002 713−632−8000 Email: afarris@yettercoleman.com TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED
Barry F McNeil Haynes Boone LLP 2323 Victory Avenue Suite 700 Dallas, TX 75219 214−651−5580 Fax: 214−200−0535 Email: barry.mcneil@haynesboone.com ATTORNEY TO BE NOTICED
Christina Wilson Children's Rights 330 Seventh Avenue, Fourth Floor New York, NY 10001 212−683−2210 Email: cremlin@childrensrights.org ATTORNEY TO BE NOTICED
Christopher Darnell Porter Quinn Emanuel et al 711 Louisiana St. Ste 500 Houston, TX 77002 713−221−7000 Email: chrisporter@quinnemanuel.com ATTORNEY TO BE NOTICED
David Allen Dodds Haynes Boone LLP 901 Main St Ste 3100 Dallas, TX 75202 214−651−5566 Email: david.dodds@haynesboone.com TERMINATED: 07/22/2016

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 3 of 88
ATTORNEY TO BE NOTICED
Dori Kornfeld Goldman Yetter ColemanLLP 811 Main Street Suite 4100 Houston, TX 77002 713−632−8000 Fax: 713−632−8002 Email: dgoldman@yettercoleman.com ATTORNEY TO BE NOTICED
Elizabeth Pitman Children's Rights 330 Seventh Avenue, 4th Floor New York, NY 10001 2126832210 Email: egretter@childrensrights.org ATTORNEY TO BE NOTICED
Hector Canales Canales Parker 2601 Morgan Ave Corpus Christi, TX 78405 361−883−0601 Email: hector@canaleslawoffice.com TERMINATED: 08/27/2013
Ira Lustbader Children's Rights 88 Pine St Suite 800 New York, NY 10005 212−683−2210 Email: ilustbader@childrensrights.org ATTORNEY TO BE NOTICED
Jessica Polansky Children's Rights 330 Seventh Ave., Fourth Fl. New York, NY 10001 212−683−2210 Email: jpolansky@childrensrights.org (Inactive) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry A Better Childhood, Inc. 355 Lexington Ave. Floor 16 New York, NY 10017 646−795−4456 Email: mlowry@ABetterChildhood.org ATTORNEY TO BE NOTICED
Melissa Cohen Children's Rights 330 Seventh Avenue Fourth Floor New York, NY 10001 212−683−2210 Email: mcohen@childrensrights.org TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 4 of 88
Michael Kenneth Bartosz Children's Rights 330 Seventh Ave, Fourth Floor New York, NY 10001 212−683−2210 Email: sbartosz@childrensrights.org ATTORNEY TO BE NOTICED
Olivia Sohmer Chambers of the Hon. L. Johnson 320 Jay St Room 23.32 Brooklyn, NY 11201−2935 347−292−9331 TERMINATED: 02/02/2012
Patricia Canales Bell Canales and Simonson PC 2601 Morgan Avenue Corpus Christi, TX 78405 361−883−0601 Email: pmcanales@canalessimonson.com TERMINATED: 08/27/2013
Patrick Almonrode Children's Rights 330 Seventh Ave., Fourth Fl. New York, NY 10001 212−683−2210 Email: palmonrode@childrensrights.org TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Philip Barber Children's Rights 330 Seventh Avenue, Fourth Floor New York, NY 10001 212−683−2210 Email: pbarber@childrensrights.org TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED
Rachel Brodin Nili Children's Rights 330 Seventh Avenue 4th Floor New York, NY 10001 212−683−2210 Email: rnili@childrensrights.org TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Richard Thaddeus Behrens Haynes And Boone LLP 2323 Victory Ave, Ste 700 Dallas, TX 75219 214−651−5668 Email: thad.behrens@haynesboone.com ATTORNEY TO BE NOTICED
Sarah T Russo Children's Rights 330 Seventh Avenue 4th Floor

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 5 of 88

New York, NY 10001 212−683−2210 Email: srusso@childrensrights.org TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Stephen Dixon Children's Rights 330 7th Ave 4th Fl New York, NY 10001 212−683−2210 Email: sdixon@childrensrights.org ATTORNEY TO BE NOTICED

Vincent Paul Circelli Circelli Walter & Young LLP 500 East 4th Street, Suite 250 Fort Worth, TX 76102 817−697−4942 Email: vinny@cwylaw.com TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

William Kapell Children's Rights 330 Seventh Avenue Fourth Floor New York, NY 10001 212−683−2210 Email: wkapell@childrensrights.org TERMINATED: 09/12/2016

Plaintiff
D.I. by next of friend Nancy G. Pofahl

represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 6 of 88
April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED
Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED
Christina Wilson (See above for address) ATTORNEY TO BE NOTICED
Christopher Darnell Porter (See above for address) ATTORNEY TO BE NOTICED
David Allen Dodds (See above for address) TERMINATED: 07/22/2016 ATTORNEY TO BE NOTICED
Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Hector Canales (See above for address) TERMINATED: 08/27/2013
Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Olivia Sohmer (See above for address) TERMINATED: 02/02/2012
Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013
Patrick Almonrode (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 7 of 88

Plaintiff
Z.H. by next of friend Carla B. Morrison

Rachel Brodin Nili (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED
Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED
Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED
Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/12/2016
represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY
Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED
April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 8 of 88
Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED
Christina Wilson (See above for address) ATTORNEY TO BE NOTICED
Christopher Darnell Porter (See above for address) ATTORNEY TO BE NOTICED
David Allen Dodds (See above for address) TERMINATED: 07/22/2016 ATTORNEY TO BE NOTICED
Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Hector Canales (See above for address) TERMINATED: 08/27/2013
Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Olivia Sohmer (See above for address) TERMINATED: 02/02/2012
Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013
Patrick Almonrode (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 9 of 88

Plaintiff
S.A. by next of friend Javier E. Solis

Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED
Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED
Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED
Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/12/2016
represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY
Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED
April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED
Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED
Christina Wilson

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 10 of 88
(See above for address) ATTORNEY TO BE NOTICED
Christopher Darnell Porter (See above for address) ATTORNEY TO BE NOTICED
David Allen Dodds (See above for address) TERMINATED: 07/22/2016 ATTORNEY TO BE NOTICED
Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Hector Canales (See above for address) TERMINATED: 08/27/2013
Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Olivia Sohmer (See above for address) TERMINATED: 02/02/2012
Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013
Patrick Almonrode (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 11 of 88

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

William Kapell (See above for address) TERMINATED: 09/12/2016

Plaintiff
A.M. by next of friend Jennifer Talley

represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED

April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED

Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Christopher Darnell Porter (See above for address)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 12 of 88
ATTORNEY TO BE NOTICED
David Allen Dodds (See above for address) TERMINATED: 07/22/2016 ATTORNEY TO BE NOTICED
Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Hector Canales (See above for address) TERMINATED: 08/27/2013
Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Olivia Sohmer (See above for address) TERMINATED: 02/02/2012
Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013
Patrick Almonrode (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED
Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 13 of 88

Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

William Kapell (See above for address) TERMINATED: 09/12/2016

Plaintiff
J.S. by next of friend Anna J. Ricker

represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED

April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED

Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Christopher Darnell Porter (See above for address) ATTORNEY TO BE NOTICED

David Allen Dodds (See above for address) TERMINATED: 07/22/2016

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 14 of 88
ATTORNEY TO BE NOTICED
Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Hector Canales (See above for address) TERMINATED: 08/27/2013
Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Olivia Sohmer (See above for address) TERMINATED: 02/02/2012
Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013
Patrick Almonrode (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED
Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED
Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED
Vincent Paul Circelli

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 15 of 88

(See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

William Kapell (See above for address) TERMINATED: 09/12/2016

Plaintiff
K. E. by next of friend John W. Cliff, Jr.

represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED

April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED

Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Christopher Darnell Porter (See above for address) ATTORNEY TO BE NOTICED

David Allen Dodds (See above for address) TERMINATED: 07/22/2016 ATTORNEY TO BE NOTICED

Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 16 of 88
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Hector Canales (See above for address) TERMINATED: 08/27/2013
Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Olivia Sohmer (See above for address) TERMINATED: 02/02/2012
Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013
Patrick Almonrode (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED
Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED
Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED
Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED
William Kapell

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 17 of 88

(See above for address) TERMINATED: 09/12/2016

Plaintiff
D.P. TERMINATED: 08/27/2013 by next of friend Karen J. Langsley TERMINATED: 08/27/2013

represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY
R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED

April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED

Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Christopher Darnell Porter (See above for address) ATTORNEY TO BE NOTICED

David Allen Dodds (See above for address) TERMINATED: 07/22/2016 ATTORNEY TO BE NOTICED

Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED

Hector Canales (See above for address) TERMINATED: 08/27/2013

Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 18 of 88

Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED

Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Olivia Sohmer (See above for address) TERMINATED: 02/02/2012

Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013

Patrick Almonrode (See above for address) ATTORNEY TO BE NOTICED

Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED

Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED

Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

William Kapell (See above for address) TERMINATED: 09/12/2016

Plaintiff
T.C. TERMINATED: 08/27/2013 by next of friend Paul Swacina TERMINATED: 08/27/2013

represented by J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY
R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Dembrow (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 19 of 88
Amelia Jean Cardenas (See above for address) TERMINATED: 08/28/2014 ATTORNEY TO BE NOTICED
April Lynn Farris (See above for address) TERMINATED: 03/06/2014 ATTORNEY TO BE NOTICED
Barry F McNeil (See above for address) ATTORNEY TO BE NOTICED
Christina Wilson (See above for address) ATTORNEY TO BE NOTICED
Christopher Darnell Porter (See above for address) ATTORNEY TO BE NOTICED
David Allen Dodds (See above for address) TERMINATED: 07/22/2016 ATTORNEY TO BE NOTICED
Dori Kornfeld Goldman (See above for address) ATTORNEY TO BE NOTICED
Hector Canales (See above for address) TERMINATED: 08/27/2013
Jessica Polansky (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Olivia Sohmer (See above for address) TERMINATED: 02/02/2012
Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013
Patrick Almonrode (See above for address) ATTORNEY TO BE NOTICED
Philip Barber (See above for address) TERMINATED: 03/28/2014 ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 20 of 88

Plaintiff M.R. by next friend, Bobbie M. Young
Plaintiff J.R. by next friend, Bobbie M. Young

Richard Thaddeus Behrens (See above for address) ATTORNEY TO BE NOTICED
Stephen Dixon (See above for address) ATTORNEY TO BE NOTICED
Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED
William Kapell (See above for address) TERMINATED: 09/12/2016
represented by Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Wilson (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
R Paul Yetter (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED
Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED
Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED
represented by Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 21 of 88

Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
T.H. TERMINATED: 08/27/2013

represented by Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
S.T. TERMINATED: 08/27/2013

represented by Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
H.V. by next friend, Anna J. Ricker

represented by Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) ATTORNEY TO BE NOTICED

Christina Wilson (See above for address)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 22 of 88

ATTORNEY TO BE NOTICED

Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
P.O. by next friend, Anna J. Ricker

represented by Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
L.H. by next friend, Estela C. Vasquez

represented by Joshua Rosenthal (See above for address) LEAD ATTORNEY

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 23 of 88

ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
C.H. by next friend Estela C. Vasquez

represented by Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED

Marcia Robinson Lowry (See above for address)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 24 of 88

ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
S.R. by next friend Bobbie M. Young

represented by Hector Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 25 of 88

S.S. by next friend Estela C. Vasquez

represented by Hector Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Canales Bell (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Christina Wilson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED

R Paul Yetter (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED

Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

Plaintiff
A.R. by next friend Tom McKenzie, individually and on behalf of all others similarly situated

represented by Hector Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

J A Tony Canales (See above for address) TERMINATED: 08/27/2013 LEAD ATTORNEY

Joshua Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Canales Bell (See above for address)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 26 of 88
TERMINATED: 08/27/2013 LEAD ATTORNEY
R Paul Yetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adriana Teresa Luciano (See above for address) TERMINATED: 09/13/2016 ATTORNEY TO BE NOTICED
Christina Wilson (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Pitman (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED
Sarah T Russo (See above for address) TERMINATED: 09/19/2016 ATTORNEY TO BE NOTICED
Vincent Paul Circelli (See above for address) TERMINATED: 10/10/2014 ATTORNEY TO BE NOTICED

V.
Defendant
Greg Abbott in his official capacity as Governor of the State of Texas

represented by James B Eccles Office of the AG of Texas 300 W 15th Street 6th Floor Austin, TX 78701 512−936−2263 Fax: 512−477−2348 Email: beau.eccles@texasattorneygeneral.gov TERMINATED: 10/09/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C Todd Office of the Attorney General General Litigation Division PO Box 12548 Capitol Station Austin, TX 78711−2548 512−475−4055 Fax: 512−320−0667 Email: jim.todd@texasattorneygeneral.gov TERMINATED: 05/19/2014

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 27 of 88
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Bowman Stephens Office of the Attorney General PO Box 12548 Austin, TX 78711−2548 512−463−2120 Email: andrew.stephens@oag.texas.gov ATTORNEY TO BE NOTICED
Christopher D. Hilton Texas Office of the Attorney General PO Box 12548 Capitol Station Austin, TX 78711 512−463−2120 Email: christopher.hilton@oag.texas.gov ATTORNEY TO BE NOTICED
Darren Glenn Gibson Littler Mendelson PC 100 Congress Ave., Suite 1400 Austin, TX 78701 512−982−7250 Fax: 512−982−7248 Email: dgibson@littler.com TERMINATED: 05/19/2014 ATTORNEY TO BE NOTICED
James Patrick Sullivan Office of the Governor of Texas 1100 San Jacinto Boulevard Fourth Floor Austin, TX 78701 United Sta 7037172390 Email: sully.jps@gmail.com ATTORNEY TO BE NOTICED
Kimberly Ann Gdula Office of the Attorney General P.O. Box 12548−Capitol Station Austin, TX 78711−2548 512−463−2120 Fax: 512−320−0667 Email: kimberly.gdula@oag.texas.gov ATTORNEY TO BE NOTICED
Marc Rietvelt Office of Attorney General PO Box 12548 Capitol Station Austin, TX 78711−2548 512−475−4196 Fax: 512−320−0667 fax Email: Marc.Rietvelt@oag.texas.gov TERMINATED: 11/17/2016 ATTORNEY TO BE NOTICED
Thomas A Albright Office of the Attorney General General Litigation Division PO Box 12548 Capital Station

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 28 of 88

Austin, TX 78711−2548 512−463−2120 Fax: 512−474−0731 Email: Thomas.Albright@oag.texas.gov ATTORNEY TO BE NOTICED

Defendant
Chris Traylor in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas formerly known as Kyle Janek

represented by James B Eccles (See above for address) TERMINATED: 10/09/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James C Todd (See above for address) TERMINATED: 05/19/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Bowman Stephens (See above for address) ATTORNEY TO BE NOTICED

Christopher D. Hilton (See above for address) ATTORNEY TO BE NOTICED

Darren Glenn Gibson (See above for address) TERMINATED: 05/19/2014 ATTORNEY TO BE NOTICED

James Patrick Sullivan (See above for address) ATTORNEY TO BE NOTICED

Kimberly Ann Gdula (See above for address) ATTORNEY TO BE NOTICED

Marc Rietvelt (See above for address) TERMINATED: 11/17/2016 ATTORNEY TO BE NOTICED

Thomas A Albright (See above for address) ATTORNEY TO BE NOTICED

Defendant
John J Specia, Jr in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas

represented by James B Eccles (See above for address) TERMINATED: 10/09/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C Todd (See above for address) TERMINATED: 05/19/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Bowman Stephens (See above for address)

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ATTORNEY TO BE NOTICED

Christopher D. Hilton (See above for address) ATTORNEY TO BE NOTICED

Darren Glenn Gibson (See above for address) TERMINATED: 05/19/2014 ATTORNEY TO BE NOTICED

James Patrick Sullivan (See above for address) ATTORNEY TO BE NOTICED

Kimberly Ann Gdula (See above for address) ATTORNEY TO BE NOTICED

Marc Rietvelt (See above for address) TERMINATED: 11/17/2016 ATTORNEY TO BE NOTICED

Thomas A Albright (See above for address) ATTORNEY TO BE NOTICED

Defendant Children's Rights

Amicus Texas Lawyers for Children

represented by Brett D Kutnick Hankinson LLP 750 N St Paul St Ste 1800 Dallas, TX 75201 214−754−9190 Email: bkutnick@hankinsonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party Marilyn Mitten

represented by Marilyn Mitten 14 Country Club Place Waxahacie, TX 75165 972−921−7233 PRO SE

Interested Party M Vasquez

represented by M Vasquez 231 Pearl St, Apt. A Briggs, Tx 78608 254−226−4993 PRO SE

Interested Party Marcia DeHaven

Monitor Kevin Ryan

represented by

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Kevin M Ryan Public Catalyst 99 Wood Ave So Ste 301 Islein, NJ 08830 Public Cat 713−710−3950 Email: kevinmichaelryan1967@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monitor Deborah Fitzgerald Fowler

represented by Deborah Fitzgerald Fowler Texas Appleseed 1609 Shoal Creek Ste 201 Austin, TX 78701 512−473−2800 Email: dfowler@texasappleseed.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin M Ryan (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/29/2011 03/29/2011
03/29/2011 03/29/2011 03/29/2011 03/29/2011 03/29/2011 03/29/2011 03/31/2011 03/31/2011

# Docket Text
1 COMPLAINT against Anne Heiligenstein, Rick Perry, Thomas Suehs (Filing fee $ 350 receipt number 0541−7866347) filed by J.S., D.I., S.A., A.M., T.C., D.P., M.D., K. E., Z.H..(Canales, J) (Entered: 03/29/2011)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 5/26/2011 at 01:15 PM before Judge Janis Graham Jack. (Attachments: # 1 Standing Order) Parties notified.(vrios, ) (Entered: 03/29/2011)
3 Summons Issued as to Anne Heiligenstein, Rick Perry, Thomas Suehs, filed.(brngarcia, ) (Entered: 03/29/2011)
4 MOTION for Olivia Sohmer to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/19/2011. (Canales, J) (Entered: 03/29/2011)
5 MOTION for Jessica Polansky to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/19/2011. (Canales, J) (Entered: 03/29/2011)
6 MOTION for Marcia Robinson Lowry to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/19/2011. (Canales, J) (Entered: 03/29/2011)
7 MOTION for Patrick Almonrode to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/19/2011. (Canales, J) (Entered: 03/29/2011)
8 MOTION for Stephen Dixon to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/19/2011. (Canales, J) (Entered: 03/29/2011)
9 MOTION for Amelia Cardenas to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/21/2011. (Canales, J) (Entered: 03/31/2011)
10 ORDER granting 5 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(bcortez, ) (Entered: 04/04/2011)

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03/31/2011 03/31/2011 03/31/2011 03/31/2011 04/05/2011
04/06/2011 04/06/2011 04/06/2011 04/07/2011 04/11/2011 04/14/2011 04/15/2011 04/19/2011 05/09/2011
05/10/2011 05/16/2011 05/16/2011 05/16/2011 05/16/2011 05/16/2011

11 ORDER granting 6 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(bcortez, ) (Entered: 04/04/2011)
12 ORDER granting 4 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(bcortez, ) (Entered: 04/04/2011)
13 ORDER granting 8 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(bcortez, ) (Entered: 04/04/2011)
14 ORDER granting 7 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(bcortez, ) (Entered: 04/04/2011)
15 MOTION to Certify Class by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/26/2011. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Proposed Order)(Canales, J) (Entered: 04/05/2011)
16 ORDER. Next Friends shall appear before the Court at the Initial Pretrial Conference on May 26, 2011. (Signed by Judge Janis Graham Jack) Parties notified.(amireles, ) (Entered: 04/06/2011)
17 MOTION for April L. Farris to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 4/27/2011. (Canales, J) (Entered: 04/06/2011)
18 ORDER granting 9 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(amireles, ) (Entered: 04/06/2011)
19 CERTIFICATE OF INTERESTED PARTIES by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed.(Todd, James) (Entered: 04/07/2011)
20 CERTIFICATE OF INTERESTED PARTIES by A.M., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed.(Canales, J) (Entered: 04/11/2011)
21 MOTION for Extension of Time to file Answer and Respond to Class Certification Motion by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 5/5/2011. (Todd, James) (Entered: 04/14/2011)
22 RESPONSE in Opposition to 21 MOTION for Extension of Time to file Answer and Respond to Class Certification Motion, filed by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H.. (Canales, J) (Entered: 04/15/2011)
23 ORDER granting 21 Motion for Extension of Time. Answer due by 5/14/2011 Responses due by 5/14/2011.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, ) (Entered: 04/19/2011)
24 Unopposed MOTION of Sara Stukenberg, As Next of Friend to Plaintiff M.D., to Appear at the Initial Pretrial Conference Via Telephone Conference by M.D., filed. Motion Docket Date 5/31/2011. (Attachments: # 1 Proposed Order)(Bell, Patricia) (Entered: 05/09/2011)
25 ORDER granting 24 Unopposed MOTION of Sara Stukenberg to Appear at the Initial Pretrial Conference Via Telephone Conference.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 05/10/2011)
26 NOTICE of Appearance by James Beau Eccles on behalf of Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Eccles, James) (Entered: 05/16/2011)
27 Unopposed MOTION for Leave to File Excess Pages by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 6/6/2011. (Attachments: # 1 Proposed Order)(Eccles, James) (Entered: 05/16/2011)
28 DESIGNATION of James Beau Eccles as attorney in charge of Anne Heiligenstein, Rick Perry, Thomas Suehs, filed.(Eccles, James) (Entered: 05/16/2011)
29 ANSWER to 1 Complaint by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed.(Eccles, James) (Entered: 05/16/2011)
30 Sealed Event, filed. (With attachments) (Entered: 05/16/2011)

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05/16/2011
05/16/2011
05/16/2011
05/16/2011 05/16/2011 05/16/2011 05/17/2011 05/17/2011
05/17/2011 05/18/2011
05/23/2011 05/24/2011 05/24/2011 05/24/2011

31 JOINT DISCOVERY/CASE MANAGEMENT PLAN by A.M., D.I., D.P., Anne Heiligenstein, J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, T.C., Z.H., filed. (Attachments: # 1 Exhibit Plaintiffs' Proposed Scheduling Order, # 2 Exhibit Defendants' Proposed Scheduling Order)(Lowry, Marcia) (Stricken DE #38 per JGJ) (Entered: 05/16/2011)
32 Corrected JOINT DISCOVERY/CASE MANAGEMENT PLAN by A.M., D.I., D.P., Anne Heiligenstein, J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, T.C., Z.H., filed. (Attachments: # 1 Exhibit Plaintiffs' Proposed Scheduling Order, # 2 Exhibit Defendants' Proposed Scheduling Order)(Lowry, Marcia) (Stricken per DE #38 JGJ) (Entered: 05/16/2011)
33 Amended JOINT DISCOVERY/CASE MANAGEMENT PLAN by A.M., D.I., D.P., Anne Heiligenstein, J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, T.C., Z.H., filed. (Attachments: # 1 Exhibit Plaintiffs' Proposed Scheduling Order, # 2 Exhibit Defendants' Proposed Scheduling Order)(Lowry, Marcia) (Stricken per DE#38 JGJ) (Entered: 05/16/2011)
34 Amended JOINT DISCOVERY/CASE MANAGEMENT PLAN by A.M., D.I., D.P., Anne Heiligenstein, J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, T.C., Z.H., filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bell, Patricia) (Stricken per DE #38 JGJ) (Entered: 05/16/2011)
35 Amended JOINT DISCOVERY/CASE MANAGEMENT PLAN by A.M., D.I., D.P., Anne Heiligenstein, J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, T.C., Z.H., filed.(Bell, Patricia)(Stricken per DE #38 JGJ) (Entered: 05/16/2011)
36 Amended JOINT DISCOVERY/CASE MANAGEMENT PLAN by A.M., D.I., D.P., Anne Heiligenstein, J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, T.C., Z.H., filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bell, Patricia) (Stricken per DE #38 JGJ) (Entered: 05/16/2011)
37 Amended JOINT DISCOVERY/CASE MANAGEMENT PLAN by A.M., D.I., D.P., Anne Heiligenstein, J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, T.C., Z.H., filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bell, Patricia) (Entered: 05/17/2011)
38 ORDER Striking Document re: 33 JointDiscovery/Case Management Plan, 34 JointDiscovery/Case Management Plan, 31 JointDiscovery/Case Management Plan, 36 JointDiscovery/Case Management Plan, 35 JointDiscovery/Case Management Plan, 32 JointDiscovery/Case Management Plan,. Documents are duplicative.(Signed by Judge Janis Graham Jack) Parties notified.(lsmith, ) (Entered: 05/17/2011)
39 ORDER granting 17 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(amireles, ) (Entered: 05/18/2011)
40 MEMORANDUM of Law and Supporting Affidavits in Relation to Plaintiffs' Next Friends by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. (Attachments: # 1 Affidavit Stukenberg Affidavit, # 2 Affidavit Pofahl Affidavit, # 3 Affidavit Morrison Affidavit, # 4 Affidavit Solis Affidavit, # 5 Affidavit Ricker Affidavit, # 6 Affidavit Langsley Affidavit, # 7 Affidavit Swacina Affidavit, # 8 Affidavit Cliff Affidavit, # 9 Affidavit Talley Affidavit, # 10 Exhibit Olivia Y. v. Barbour)(Lowry, Marcia) (Entered: 05/18/2011)
41 Sealed Event, filed. (Entered: 05/23/2011)
42 MOTION for Leave to File Excess Pages by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 6/14/2011. (Attachments: # 1 Proposed Order)(Eccles, James) (Entered: 05/24/2011)
43 Sealed Event, filed. (With attachments) (Entered: 05/24/2011)
44 Unopposed MOTION for Leave to File Plaintiffs' Reply in Support of Motion for Class Certification and Appointment of Class Counsel by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 6/14/2011. (Attachments: # 1 Proposed Order For Leave To File Reply, # 2 Plaintiffs' Reply in Support of Motion for Class Certification and Appointment of Class Counsel, # 3 Exhibit Exhibit A − Olivia Y. v. Barbour, # 4 Exhibit Exhibit B − Charlie and Nadine H. v. Whitman, # 5 Exhibit Exhibit C − Dwayne B. v. Granholm)(Lowry, Marcia) (Entered: 05/24/2011)

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05/25/2011 05/25/2011 05/26/2011 05/26/2011
05/31/2011 06/02/2011 06/02/2011 06/06/2011 06/07/2011 06/08/2011 06/14/2011 06/14/2011 06/15/2011 06/16/2011
06/17/2011 07/01/2011 07/05/2011 07/07/2011

45 Sealed Event, filed. (With attachments) (Entered: 05/25/2011)
46 Sealed Event, filed. (Entered: 05/25/2011)
47 AO 435 TRANSCRIPT ORDER FORM by Mishell Kneeland. This is to order a transcript of Pre−Trial Proceeding held on May 26, 2011 before Judge Janis Graham Jack (original), filed. (grogan, ) (Entered: 05/27/2011)
Minute Entry for proceedings held before Judge Janis Graham Jack. SCHEDULING CONFERENCE held on 5/26/2011 granting 42 MOTION for Leave to File Excess Pages. Discussion re: case. Parties to submit proposed scheduling order. Appearances:Angela Colmenero, Mishell Kneeland, David Halpern, Shelly Dahlberg, Sara Stuckenberg (by phone), Barry F McNeil, Stephen Dixon, Marcia Robinson Lowry, R Paul Yetter, J A Tony Canales, Patricia Canales Bell, James B Eccles.(Digital # 1:28−2:32)(ERO:v. gano), filed.(lcayce, ) (Entered: 05/29/2011)
48 ORDER granting 15 Motion to Certify Class.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 05/31/2011)
49 ORDER regarding 15 MOTION to Certify Class by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H.; granting 44 Motion for Leave to File Plaintiff's Reply.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 06/02/2011)
51 REPLY in Support of 15 MOTION to Certify Class, filed by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(sscotch, ) (Entered: 06/06/2011)
50 TRANSCRIPT re: Initial Pretrial Conference held on 5/26/11 before Judge Janis Graham Jack. Court Reporter/Transcriber Garcia Services. Release of Transcript Restriction set for 9/6/2011., filed. (judgarcia, ) (Entered: 06/06/2011)
52 Notice of Filing of Official Transcript as to 50 Transcript. Party notified, filed. (vrios, ) (Entered: 06/07/2011)
53 NOTICE Correction−page 37−Doc.No.43 by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Eccles, James) (Entered: 06/08/2011)
54 MOTION for Protective Order by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 7/5/2011. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order order)(Eccles, James) (Entered: 06/14/2011)
55 RESPONSE in Opposition to 43 Sealed Event, filed by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Lowry, Marcia) (Entered: 06/14/2011)
56 PROPOSED ORDER re: 54 MOTION for Protective Order, filed.(Eccles, James) (Entered: 06/15/2011)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE re: [D.E. 54] Motion for Protective Order held on 6/16/2011. Appearances:David Dodds, Shelly Dahlberg. Dori Kornfeld Goldman, Marcia Robinson Lowry, Patrick Almonrode, James B Eccles.(Digital # 10:33−10:42)(ERO:v. gano), filed.(lcayce, ) (Entered: 06/16/2011)
57 PROTECTIVE ORDER granting 54 MOTION for Protective Order.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, ) (Entered: 06/17/2011)
58 ORDER denying 43 Sealed Motion. Defendants Rule 12(b)(1) Motion to Dismiss is DENIED. (Signed by Judge Janis Graham Jack) Parties notified.(bcortez, ) (Entered: 07/01/2011)
59 MOTION to Stay Proceedings by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 7/26/2011. (Attachments: # 1 Exhibit A − Affidavit of Rosa Rohr, # 2 Proposed Order)(Eccles, James) (Entered: 07/05/2011)
60 RESPONSE in Opposition to 59 MOTION to Stay Proceedings, filed by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H.. (Attachments: # 1 Exhibit Exhibit A − Dwayne B. v. Granholm, # 2 Exhibit Exhibit B − Olivia Y. v. Barbour, # 3 Exhibit Exhibit C − Charlie H. v. Whitman, # 4 Exhibit Exhibit D − Defendants' Petition for Appeal, # 5 Proposed Order Proposed Order)(Lowry, Marcia) (Entered: 07/07/2011)

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07/21/2011 07/22/2011 07/22/2011
07/25/2011 07/26/2011 08/05/2011 08/05/2011 08/05/2011 08/08/2011 08/22/2011
08/22/2011 08/24/2011 08/24/2011
08/24/2011 08/25/2011 09/19/2011 01/04/2012 01/04/2012

61 ORDER denying 59 Motion to Stay Proceedings.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 07/21/2011)
62 Order of USCA; USCA No. Misc. No. 11−90028, Docket No. 11−40789. The petition for leave to appeal is granted. The motion of respondents to place appendix number 5 under seal is granted., filed.(bcortez, ) (Entered: 07/22/2011)
63 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 49 Order on Motion for Leave to File, 48 Order on Motion to Certify Class by Anne Heiligenstein, Rick Perry, Thomas Suehs (Filing fee $ 455−NOT PAID), filed. Filed at 5th Circuit under Misc. No. 11−90028, Case No. 11−40789 as a Petition for Permission to Appeal Under Federal Rule of Civil Procedure 23(f) and was GRANTED.(bcortez, ) (Entered: 07/22/2011)
Filing Filing fee re: 63 Notice of Appeal, : $455.00, receipt number CC002089, filed. (brngarcia, ) (Entered: 07/25/2011)
64 NOTICE of Appearance by David Dodds on behalf of A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. (Dodds, David) (Entered: 07/26/2011)
65 DKT−13 TRANSCRIPT ORDER FORM by Office of the Attorney General. No hearings. Hearing on June 16, 2011 before Janis Graham Jack. This order form relates to the following: 63 Notice of Appeal,, filed.(lsmith, ) (Entered: 08/05/2011)
66 MOTION for Philip Barber to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 8/26/2011. (Bell, Patricia) (Entered: 08/05/2011)
67 DKT−13 TRANSCRIPT ORDER FORM by Shelley Dahlberg. Transcript is necessary for appeal purposes. Held on 6/16/11 before Judge Janis Graham Jack. This order form relates to the following: 63 Notice of Appeal,, filed.(lrivera, ) (Entered: 08/08/2011)
68 ORDER granting 66 Motion flor Hilip Barber to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(lsmith, ) (Entered: 08/09/2011)
69 APPEAL TRANSCRIPT re TELEPHONE CONFERENCE − PROTECTIVE ORDER held on 06/16/11 before Judge Janis Graham Jack. Court Reporter/Transcriber Molly Carter. This transcript relates to the following: 63 Notice of Appeal, 67 Transcript Order Form − DKT−13, 65 Transcript Order Form − DKT−13. Release of Transcript Restriction set for 11/21/2011., filed. (mocarter) (Entered: 08/22/2011)
70 Notice of Filing of Official Transcript as to 69 Transcript − Appeal,. Party notified, filed. (vrios, ) (Entered: 08/22/2011)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 63 Notice of Appeal, USCA No. 11−40789, filed.(vrios, ) (Entered: 08/24/2011)
71 Transmittal Letter on Appeal Certified re: 63 Notice of Appeal,. A paper copy of the electronic record is being transmitted to the Fifth Circuit Court of Appeals in 7 volumes. CDs containing the electronic record are being sent to counsel. (USCA No. 11−40789), filed.(vrios, ) (Entered: 08/24/2011)
72 Transmittal Letter to counsel regarding CD containing electronic record on appeal, filed.(vrios, ) (Entered: 08/24/2011)
73 MOTION for Olivia Sohmer to Withdraw as Attorney by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 9/15/2011. (Attachments: # 1 Proposed Order)(Bell, Patricia) (Entered: 08/25/2011)
74 NOTICE of Receipt of Record on Appeal from US Court of Appeals for the Fifth Circuit re: 63 Notice of Appeal, (USCA No. 11−40789). Record received by USCA on 8/26/2011, filed.(lsmith, ) (Entered: 09/19/2011)
75 MOTION for Christina Wilson to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 1/25/2012. (Bell, Patricia) (Entered: 01/04/2012)
76 MOTION for Adam Dembrow to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 1/25/2012. (Bell, Patricia) (Entered: 01/04/2012)

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01/04/2012
01/09/2012 01/09/2012 01/17/2012 01/24/2012 01/25/2012
01/26/2012 01/26/2012 01/26/2012 01/27/2012 01/27/2012 02/01/2012 02/02/2012 02/03/2012 02/06/2012
02/07/2012 02/07/2012

77 NOTICE In Response to Plaintiffs' Expert's Methodology for Case Review Study by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Gibson, Darren) (Entered: 01/04/2012)
78 ORDER granting 76 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(amireles, ) (Entered: 01/10/2012)
79 ORDER granting 75 Motion to Appear Pro Hac Vice of Christina Wilson (Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 01/11/2012)
80 NOTICE of Setting. Parties notified. Status Conference set for 1/25/2012 at 01:30 PM before Judge Janis Graham Jack, filed. (lcayce, ) (Entered: 01/17/2012)
81 NOTICE of Issues To Be Presented at the January 25, 2012 Status Conference by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. (Attachments: # 1 Exhibit Plaintiffs' Proposed Scheduling Order)(Lowry, Marcia) (Entered: 01/24/2012)
Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 1/25/2012. Discussion of deadlines, general status of case. Parties to submit an amended proposed scheduling order. Status conference set for 3/15/12 at 9:00 a.m. Appearances:Shelly Dahlberg, Andrew Stephens. Patricia Canales Bell, Philip Barber, Barry F McNeil, Marcia Robinson Lowry, David Allen Dodds, Darren Glenn Gibson, James B Eccles.(Digital # 1:38−2:55)(ERO:v. gano), filed.(lcayce, ) (Entered: 01/26/2012)
82 NOTICE of Setting. Parties notified. Status Conference set for 3/15/2012 at 09:00 AM before Judge Janis Graham Jack, filed. (lcayce, ) (Entered: 01/26/2012)
83 NOTICE of Proposed Language Requested from Plaintiffs by the Court by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. (Barber, Philip) (Entered: 01/26/2012)
84 NOTICE OF PROPOSED LANGUAGE REQUESTED BY THE COURT by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Gibson, Darren) (Entered: 01/26/2012)
85 RESPONSE to 84 Notice (Other) of Proposed Language Requested by the Court, filed by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H.. (Barber, Philip) (Entered: 01/27/2012)
86 ORDER Miscellaneous Hearing set for 3/15/2012 at 09:00 AM before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, ) (Entered: 01/27/2012)
87 AO 435 TRANSCRIPT ORDER FORM by Patricia C. Bell. This is to order a transcript of Status Conference held on 1/25/12 before Judge Janis Graham Jack (original), filed. (amireles, ) (Entered: 02/01/2012)
88 ORDER granting 73 Motion to Withdraw as Attorney. Attorney Olivia Sohmer terminated. (Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 02/02/2012)
89 Joint PROPOSED ORDER Scheduling Order re: 86 Order, filed.(Barber, Philip) (Entered: 02/03/2012)
90 SCHEDULING ORDER. Amended Pleadings due by 3/15/2012. Joinder of Parties due by 3/15/2012 Discovery due by 3/12/2012. Dispositive Motion Filing due by 10/26/2012. Joint Pretrial Order due by 1/25/2013 by 3:00 p.m. Trial set for 2/11/2013 at 8:30 AM before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 02/06/2012)
91 ORDER.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 02/07/2012)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 2/7/2012. Court sets guidelines re: mental examination of class members. Appearances:Shelley Dahlberg, Elizabeth Aromrei (on behalf of Dept of Family Protective Services). Philip Barber, James B Eccles.(Digital #

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02/08/2012 02/08/2012 02/09/2012 02/09/2012 02/09/2012 02/09/2012 02/09/2012 02/10/2012 02/13/2012 02/13/2012 02/13/2012 02/14/2012
02/16/2012 03/01/2012 03/13/2012 03/13/2012 03/13/2012 03/13/2012

2:25−2:35)(ERO:v. gano), filed.(lcayce, ) (Entered: 02/08/2012)
92 NOTICE REGARDING RESPONSES TO PLAINTIFFS DISCOVERY REQUESTS by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Eccles, James) (Entered: 02/08/2012)
93 ORDER striking 92 Notice (Other).(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, ) (Entered: 02/08/2012)
94 TRANSCRIPT re: STATUS CONFERENCE held on 01/25/12 before Judge Janis Graham Jack. Court Reporter/Transcriber Molly Carter. Release of Transcript Restriction set for 5/9/2012., filed. (mocarter) (Entered: 02/09/2012)
95 Notice of Filing of Official Transcript as to 94 Transcript. Party notified, filed. (vgano, ) (Entered: 02/09/2012)
96 MOTION for Melissa Cohen to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 3/1/2012. (Bell, Patricia) (Entered: 02/09/2012)
97 MOTION for William Kapell to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 3/1/2012. (Bell, Patricia) (Entered: 02/09/2012)
98 MOTION for Andrew Stephens to Appear Pro Hac Vice by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 3/1/2012. (jalvarez, ) (Entered: 02/10/2012)
Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 63 Notice of Appeal, USCA No. 11−40789, filed.(vrios, ) (Entered: 02/10/2012)
99 ORDER granting 96 Motion to Appear Pro Hac Vice of Melissa Cohen.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 02/13/2012)
100 ORDER granting 97 Motion to Appear Pro Hac Vice of William Kappell.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 02/13/2012)
101 ORDER granting 98 Motion to Appear Pro Hac Vice of Andrew Stephens.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 02/13/2012)
102 SUPPLEMENTAL Transmittal Letter on Appeal Certified re: 63 Notice of Appeal,. A paper copy of the electronic record is being transmitted to the Fifth Circuit Court of Appeals in 2 volumes. CDs containing the electronic record are being sent to counsel. (USCA No. 11−40789), filed. (Attachments: # 1 Transmittal Letter to Counsel regarding CD)(vrios, ) (Entered: 02/14/2012)
103 AO 435 TRANSCRIPT ORDER FORM by Shelly Dahlberg. This is to order a transcript of Status Conference held on 2/7/12 before Judge Janis Graham Jack (original). Transcriber: Molly Carter, filed. (sscotch, ) (Entered: 02/16/2012)
104 NOTICE of Receipt of Supplemental Record on Appeal from US Court of Appeals for the Fifth Circuit re: 63 Notice of Appeal, (USCA No. 11−40789). Supplemental Record received by USCA on 02/16/12, filed.(jalvarez, ) (Entered: 03/02/2012)
105 NOTICE of Issues To Be Presented at the March 15, 2012 Status Conference by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. (Barber, Philip) (Entered: 03/13/2012)
106 TRANSCRIPT re: TELEPHONE CONFERENCE held on 02/07/12 before Judge Janis Graham Jack. Court Reporter/Transcriber Molly Carter. Release of Transcript Restriction set for 6/11/2012., filed. (mocarter) (Entered: 03/13/2012)
107 MOTION for Thomas A. Albright to Appear Pro Hac Vice by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 4/3/2012. (amireles, ) (Entered: 03/13/2012)
108 Notice of Filing of Official Transcript as to 106 Transcript. Party notified, filed. (vgano, ) (Entered: 03/13/2012)

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03/14/2012 03/14/2012 03/15/2012
03/15/2012 03/15/2012 03/16/2012 03/26/2012 03/30/2012
03/30/2012 04/02/2012 04/02/2012
04/24/2012 04/25/2012 04/26/2012 04/27/2012 04/30/2012

109 RESPONSE to 105 Notice (Other) Plaintiffs' Notice of Issues to be Presented at the March 15, 2012 Status Conference, filed by Anne Heiligenstein, Rick Perry, Thomas Suehs. (Eccles, James) (Entered: 03/14/2012)
ORDER granting 107 Motion to Appear Pro Hac Vice of Thomas A. Albright for Rick Perry, Thomas Suehs, and Anne Heiligenstein.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 03/14/2012)
Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 3/15/2012. Discussion re: production of case files. Court orders defts to produce to pltffs 20 cases per week starting two weeks from today's date. Witness testimony of IT specialists Pierce Cox, Kim Wendland and Children's Rights Litigation Project Director Elizabeth Cromrei. Plainitff's exhibit 1 admitted. Status Conference scheduled for 5/2/12 at 2:30 p.m. CST. Appearances: J A Tony Canales, Patricia Canales Bell, Philip Barber, Marcia Robinson Lowry, David Allen Dodds, Andrew Bowman Stephens, Darren Glenn Gibson, Thomas A Albright, James B Eccles.(Digital # 9:36−11:05)(ERO:v. gano), filed.(lcayce, ) (Entered: 03/15/2012)
110 Exhibit List by M.D., et al, filed.(lcayce, ) (Additional attachment(s) added on 1/22/2018: # 1 Exhibit) (AmandaZepeda, 2). (Entered: 03/15/2012)
111 NOTICE of Setting. Parties notified. Status Conference set for 5/2/2012 at 02:30 PM before Judge Janis Graham Jack, filed. (lcayce, ) (Entered: 03/15/2012)
112 ORDER. Deadlines set. Status Conference set for 5/2/2012 at 02:30 PM before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, ) (Entered: 03/16/2012)
113 MOTION for Protective Order by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 4/16/2012. (Attachments: # 1 Proposed Order)(Eccles, James) (Entered: 03/26/2012)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE re: discovery held on 3/30/2012. The parties discuss Rule 30(b)(6) depositions and the production of 500 case files. The Court vacates the scheduling order and instructs parties to devise new scheduling order. Discussion re: possible class certification hearing in late November 2012. Appearances: Philip Barber, Andrew Bowman Stephens, Thomas A Albright, James B Eccles.(Digital # 2:00−2:31)(ERO:v. gano), filed.(lcayce, ) (Entered: 03/30/2012)
114 ORDER.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 03/30/2012)
Second Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 63 Notice of Appeal, USCA No. 11−40789, filed.(vrios, ) (Entered: 04/02/2012)
115 Transmittal Letter on Appeal Certified re: 63 Notice of Appeal,. A paper copy of the second supplemental electronic record is being transmitted to the Fifth Circuit Court of Appeals in 1 volumes. CDs containing the electronic record are being sent to appellant. (USCA No. 11−40789), filed. (Attachments: # 1 Transmittal Letter to Counsel regarding CD)(vrios, ) (Entered: 04/02/2012)
116 Record on Appeal Returned from the US Court of Appeals for the Fifth Circuit re: 63 Notice of Appeal, (USCA No. 11−40789). The electronic copy of the record has been recycled., filed.(lrivera, ) (Entered: 04/24/2012)
117 AO 435 TRANSCRIPT ORDER FORM by Andrew Stephens. This is to order a transcript of Status Conference held on 3/15/12 before Judge Janis Graham Jack (Original), filed. (sscotch, ) (Entered: 04/25/2012)
118 NOTICE of Setting. Parties notified. Status Conference set for 5/2/2012 at 03:45 PM before Judge Janis Graham Jack, filed. (lcayce, ) (Entered: 04/26/2012)
119 Sealed Event, filed. (With attachments) (Entered: 04/27/2012)
120 AO 435 TRANSCRIPT ORDER FORM by Philip G. Barber. This is to order a transcript of Telephone Status Conference held on 3/30/2012 before Judge Janis Graham Jack (Original), filed. (brngarcia, ) (Entered: 04/30/2012)

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04/30/2012 05/01/2012 05/01/2012 05/02/2012 05/02/2012
05/03/2012
05/15/2012 05/15/2012
05/16/2012 05/16/2012 05/25/2012 06/01/2012 06/13/2012 06/14/2012 06/14/2012 06/14/2012
06/14/2012

121 AO 435 TRANSCRIPT ORDER FORM by Philip G. Barber. This is to order a transcript of Status Conference held on 3/15/2012 before Judge Janis Graham Jack (Original), filed. (brngarcia, ) (Entered: 04/30/2012)
122 NOTICE of Appearance by MARC RIETVELT on behalf of Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Rietvelt, Marc) (Entered: 05/01/2012)
123 NOTICE OF ISSUES TO BE PRESENTED AT THE MAY 2, 2012 STATUS CONFERENCE by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Albright, Thomas) (Entered: 05/01/2012)
124 RESPONSE to 123 Notice (Other) Defendants Notice of Issues To Be Presented at the May 2, 2012 Status Conference, filed by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H.. (Barber, Philip) (Entered: 05/02/2012)
Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 5/2/2012 re: discovery. Class certification hearing tenatively set for 12/10/12. Defts are advised to contact the Court within the next 2 weeks to set up telephone conf with the Court. Appearances: Philip Barber, Marcia Robinson Lowry, Thomas A Albright, James B Eccles, Pierce Cox (IT specialist).(Digital # 3:45−4:08)(ERO:v. gano), filed.(lcayce, ) (Entered: 05/04/2012)
125 ORDER re: 5/2/12 Status Conference. Plaintiffs shall file and amended complaint by 6/1/2012 with a revised scheme of proposed class(es). Defendants shall complete their compliance with the discovery requirements by 7/1/2012.(Signed by Judge Janis Graham Jack) Parties notified.(amireles, ) (Entered: 05/03/2012)
126 ORDER.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 05/15/2012)
Minute Entry for proceedings held before Judge Janis Graham Jack. EX PARTE HEARING held on 5/15/2012. Appearances: Andrew Bowman Stephens, Marc Rietvelt, James B Eccles.(Digital # 2:57−3:34)(ERO:v. gano), filed.(lcayce, ) (Entered: 05/15/2012)
127 TRANSCRIPT re: STATUS CONFERENCE held on 03/15/12 before Judge Janis Graham Jack. Court Reporter/Transcriber Molly Carter. Release of Transcript Restriction set for 8/14/2012., filed. (mocarter) (Entered: 05/16/2012)
128 Notice of Filing of Official Transcript as to 127 Transcript. Party notified, filed. (vgano, ) (Entered: 05/16/2012)
129 AO 435 TRANSCRIPT ORDER FORM by Philip G. Barber. This is to order a transcript of Telephonic Status Conference held on May 2, 2012 before Judge Janis Graham Jack (original), filed. (grogan, ) (Entered: 05/25/2012)
130 First AMENDED COMPLAINT against All Defendants filed by J.S., D.I., S.A., A.M., D.P., M.D., K. E., Z.H..(Lowry, Marcia) (Entered: 06/01/2012)
131 TRANSCRIPT re: TELEPHONE CONFERENCE held on 03/30/12 before Judge Janis Graham Jack. Court Reporter/Transcriber Molly Carter. Release of Transcript Restriction set for 9/11/2012., filed. (mocarter) (Entered: 06/13/2012)
132 Notice of Filing of Official Transcript as to 131 Transcript. Party notified, filed. (vrios, ) (Entered: 06/14/2012)
(ENTERED IN ERROR) THIRD SUPPLEMENTAL Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 63 Notice of Appeal, USCA No. 11−40789, filed.(vrios, ) Modified on 6/14/2012 (vrios, ). (Entered: 06/14/2012)
133 JUDGMENT − Order of USCA re: 63 Notice of Appeal, ; USCA No. 11−40789. Ordered that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings, filed. (CLERK NOTES: COPY OF THE JUDGMENT WAS PULLED FROM THE FIFTH CIRCUIT WEBSITE)(vrios, ) (Entered: 06/14/2012)
134 Copy of Bill of Costs by USCA in the amount of $613.90 against Plaintifffs − Appellees (USCA No. 11−40789), filed. (CLERK NOTES: COPY OF THE BILL OF COSTS WAS PULLED FROM THE FIFTH CIRCUIT WEBSITE) (vrios, ) (Entered:

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06/18/2012 06/29/2012 06/29/2012 07/02/2012 07/19/2012 07/20/2012 07/26/2012 07/26/2012 07/27/2012 07/30/2012
08/02/2012 08/14/2012 09/04/2012 09/18/2012 09/20/2012 09/25/2012 09/28/2012 10/03/2012
10/03/2012

06/14/2012)
135 AMENDED ANSWER to 130 Amended Complaint/Counterclaim/Crossclaim etc. by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. (Eccles, James) (Entered: 06/18/2012)
136 Sealed Event, filed. (With attachments) (Entered: 06/29/2012)
137 Joint MOTION for Protective Order by Anne Heiligenstein, Rick Perry, Thomas Suehs, filed. Motion Docket Date 7/20/2012. (Attachments: # 1 Proposed Order)(Rietvelt, Marc) (Entered: 06/29/2012)
138 AMENDED PROTECTIVE ORDER granting 137 Joint MOTION for Protective Order (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, ) (Entered: 07/02/2012)
139 TRANSCRIPT re: TELEPHONE CONFERENCE held on 05/02/12 before Judge Janis Graham Jack. Court Reporter/Transcriber Molly Carter. Release of Transcript Restriction set for 10/17/2012., filed. (mocarter) (Entered: 07/19/2012)
140 Notice of Filing of Official Transcript as to 139 Transcript. Party notified, filed. (vrios, ) (Entered: 07/20/2012)
141 Sealed Minute Entry for proceedings held before Judge Janis Graham Jack. Proceedings held on 7/26/2012. Appearances: Marc Rietvelt.(Digital # 10:43−11:02)(ERO:a. benavides), filed.(lcayce, ) (lcayce, ). (Entered: 07/26/2012)
142 Joint PROPOSED ORDER SCHEDULING ORDER FOR CLASS CERTIFICATION HEARING, filed.(Eccles, James) (Entered: 07/26/2012)
143 OPINION of USCA filed 3/23/12 re: 63 Notice of Appeal, ; USCA No. 11−40789, filed. (NOTE: Clerk obtained copy for docketing from 5th Circuit's website.)(mserpa, ) (Entered: 07/27/2012)
144 SCHEDULING ORDER ON CLASS CERTIFICATION. Pltf Expert Witness List due by 9/28/2012. Pltf Expert Report due by 10/12/2012. Deft Expert Witness List due by 10/29/2012. Deft Expert Report due by 11/12/2012. Discovery due by 9/28/2012. Responses due by 11/21/2012(Signed by Judge Janis Graham Jack) Parties notified.(lsmith, ) (Entered: 07/30/2012)
145 Sealed Event, filed. (Entered: 08/02/2012)
146 Sealed Event, filed. (With attachments) (Entered: 08/14/2012)
147 Joint MOTION for Leave to File Excess Pages by A.M., Howard Baldwin, Jr., D.I., D.P., J.S., K. E., M.D., Rick Perry, S.A., Thomas Suehs, filed. Motion Docket Date 9/25/2012. (Attachments: # 1 Proposed Order)(Barber, Philip) (Entered: 09/04/2012)
148 MOTION for Adriana Luciano to Appear Pro Hac Vice by A.M., D.I., D.P., J.S., K. E., M.D., S.A., T.C., Z.H., filed. Motion Docket Date 10/9/2012. (Bell, Patricia) (Entered: 09/18/2012)
149 Joint PROPOSED ORDER Scheduling Order for Class Certification Hearing (Amended), filed.(Barber, Philip) (Entered: 09/20/2012)
150 ORDER granting 148 Motion to Appear Pro Hac Vice of Adriana Luciano.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 09/25/2012)
151 Sealed Order, filed. (Entered: 09/28/2012)
Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 10/3/2012. Courts inquires as to the progression of discovery. Plaintiff's state they are satisfied and ready to proceed on present schedule for Class Certification Hearing. Court will enter Scheduling Order. Hearing Concluded. Appearances: Philip Barber, Marc Rietvelt, Thomas A Albright.(Digital # 3:08 − 3:21)(ERO:Genay Rogan), filed.(lsmith, ) (Entered: 10/03/2012)
152 ORDER granting 147 Motion for Leave to File Excess Pages. Court adopts as its own the proposed Schduling Order at DE #149. The hearing on Class Certification is set for December 10, 2012 at 9:00 a.m.(Signed by Judge Janis Graham Jack) Parties

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10/03/2012 10/05/2012 10/05/2012 10/05/2012 10/05/2012
10/05/2012
10/05/2012
10/05/2012 10/22/2012 10/24/2012 11/05/2012 11/21/2012 11/23/2012 11/26/2012

notified.(lsmith, ) (Entered: 10/03/2012)
153 ADVISORY by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed.(Albright, Thomas) (Entered: 10/03/2012)
154 Second AMENDED COMPLAINT against All Defendants filed by J.S., S.A., M.D., K. E., D.I., A.M., Z.H., M.R., J.R., T.H., S.T., H.V., P.O..(Lowry, Marcia) (Entered: 10/05/2012)
155 MOTION for Leave to File Second Amended Complaint by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.H., Z.H., filed. Motion Docket Date 10/26/2012. (Attachments: # 1 Exhibit A)(Lowry, Marcia) (Entered: 10/05/2012)
156 Sealed Event, filed. (With attachments) (Entered: 10/05/2012)
157 EXHIBITS by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.H., Z.H., filed. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21, # 12 Exhibit 22, # 13 Exhibit 23, # 14 Exhibit 24, # 15 Exhibit 25, # 16 Exhibit 26, # 17 Exhibit 27, # 18 Exhibit 28, # 19 Exhibit 29, # 20 Exhibit 30, # 21 Exhibit 31A, # 22 Exhibit 31B, # 23 Exhibit 32A, # 24 Exhibit 32B, # 25 Exhibit 33, # 26 Exhibit 34, # 27 Exhibit 35)(Wilson, Christina) (Entered: 10/05/2012)
158 EXHIBITS by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.H., Z.H., filed. (Attachments: # 1 Exhibit 36, # 2 Exhibit 37, # 3 Exhibit 38, # 4 Exhibit 39, # 5 Exhibit 40, # 6 Exhibit 41, # 7 Exhibit 42, # 8 Exhibit 43, # 9 Exhibit 44, # 10 Exhibit 45, # 11 Exhibit 46, # 12 Exhibit 47, # 13 Exhibit 51−A, # 14 Exhibit 51−B, # 15 Exhibit 52, # 16 Exhibit 53, # 17 Exhibit 54, # 18 Exhibit 55, # 19 Exhibit 56, # 20 Exhibit 57, # 21 Exhibit 58, # 22 Exhibit 59, # 23 Exhibit 60, # 24 Exhibit 61, # 25 Exhibit 62, # 26 Exhibit 63, # 27 Exhibit 64)(Almonrode, Patrick) (Entered: 10/05/2012)
159 EXHIBITS by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.H., Z.H., filed. (Attachments: # 1 Exhibit 66, # 2 Exhibit 67, # 3 Exhibit 68, # 4 Exhibit 69, # 5 Exhibit 70, # 6 Exhibit 71, # 7 Exhibit 72, # 8 Exhibit 73−A, # 9 Exhibit 73−B, # 10 Exhibit 73−C, # 11 Exhibit 74, # 12 Exhibit 75, # 13 Exhibit 76, # 14 Exhibit 77, # 15 Exhibit 78, # 16 Exhibit 79, # 17 Exhibit 81, # 18 Exhibit 83, # 19 Exhibit 84, # 20 Exhibit 85, # 21 Exhibit 86, # 22 Exhibit 87, # 23 Exhibit 88, # 24 Exhibit 89, # 25 Exhibit 90, # 26 Exhibit 91)(Barber, Philip) (Entered: 10/05/2012)
160 MOTION to Certify Class by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.H., Z.H., filed. Motion Docket Date 10/26/2012. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Affidavit, # 6 Proposed Order)(Lowry, Marcia) (Entered: 10/05/2012)
161 Second AMENDED ANSWER to 154 Amended Complaint/Counterclaim/Crossclaim etc. by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed. (Rietvelt, Marc) (Entered: 10/22/2012)
162 Mail Returned Undeliverable as to attorney David Allen Dodds re: 151 Sealed Order, filed. (vrios, ) (Entered: 10/25/2012)
163 RESPONSE in Opposition to 160 MOTION to Certify Class, filed by Howard Baldwin, Jr., Rick Perry, Thomas Suehs. (Attachments: # 1 Proposed Order)(Albright, Thomas) (Entered: 11/05/2012)
164 REPLY to Response to 160 MOTION to Certify Class, filed by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.H., Z.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lowry, Marcia) (Entered: 11/21/2012)
165 NOTICE of Setting. Parties notified. Class Certification Hearing set for 12/10/2012 at 01:30 PM before Judge Janis Graham Jack, filed. (lsmith, ) (Entered: 11/23/2012)
166 MOTION for Ira Lustbader to Appear Pro Hac Vice by A.M., D.I., D.P., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 12/17/2012. (Canales, J) (Entered: 11/26/2012)

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11/27/2012 11/28/2012 11/28/2012 11/28/2012 11/28/2012 11/28/2012 11/28/2012 11/28/2012 12/17/2012 01/14/2013 01/16/2013 01/16/2013 01/16/2013 01/17/2013
01/22/2013

167 Unopposed MOTION for Continuance of Class Certification Hearing by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., T.H., Z.H., filed. Motion Docket Date 12/18/2012. (Lowry, Marcia) (Entered: 11/27/2012)
168 ORDER granting 167 Unopposed Motion for Continuance. Class Certification Hearing reset for 1/22/2013 at 09:00 AM before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 11/28/2012)
169 MOTION to Exclude Testimony of Plaintiffs Expert Don Warren by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed. Motion Docket Date 12/19/2012. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 11/28/2012)
170 MOTION to Exclude Testimony of Plaintiffs' Expert Daryl Chansuthus by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed. Motion Docket Date 12/19/2012. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 11/28/2012)
171 MOTION to Exclude Testimony of Plaintiffs expert Dr. William Carter by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed. Motion Docket Date 12/19/2012. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 11/28/2012)
172 MOTION to Exclude Testimony of Plaintiffs Expert Viola Miller by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed. Motion Docket Date 12/19/2012. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 11/28/2012)
173 MOTION to Exclude Testimony of Plaintiffs Expert Jill Duerr Berrick by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed. Motion Docket Date 12/19/2012. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 11/28/2012)
174 ORDER granting 166 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, ) (Entered: 11/30/2012)
175 ORDER ON DEFENDANTS' MOTION TO EXCLUDE EXPERTS re 169 Motion to Exclude; denying 170 Motion to Exclude; denying 171 Motion to Exclude; denying 172 Motion to Exclude; denying 173 Motion to Exclude.(Signed by Judge Janis Graham Jack) Parties notified.(amireles, ) (Entered: 12/17/2012)
176 OBJECTIONS to Plaintiffs' Class Certification Hearing Exhibits, filed by Howard Baldwin, Jr., Rick Perry, Thomas Suehs. (Albright, Thomas) (Entered: 01/14/2013)
177 NOTICE of Setting. Parties notified. Telephone Conference set for 1/17/2013 at 11:00 AM before Judge Janis Graham Jack, filed. (lsmith, ) (Entered: 01/16/2013)
178 MOTION for Leave to File Third Amended Complaint by A.M., D.I., H.V., J.R., J.S., K. E., M.D., M.R., P.O., S.A., S.T., Z.H., L.H., C.H., filed. Motion Docket Date 2/6/2013. (Attachments: # 1 Exhibit A− Transcript of Telephone Conference, # 2 Proposed Order)(Lowry, Marcia) (Entered: 01/16/2013)
179 Third AMENDED COMPLAINT against All Defendants filed by J.S., J.R., M.R., S.A., M.D., K. E., C.H., H.V., S.T., D.I., A.M., P.O., L.H., Z.H..(Lowry, Marcia) (Entered: 01/16/2013)
180 Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 1/17/2013. Agreed Exhibits will be submitted at the beginning of the hearing. Parties will exhange exhibit lists. Pltffs will have 13/12 hrs; Defts. will have 14 1/2 hrs. Pltffs will sit at the right side of the courtroom and need two tables; Defts will sit at the left side of the courtroom and need two tables. Exhibits will be submitted in electronic form. DE #178 Motion for Leave to file Third Amended Complaint, Granted orally. Extra boxes may be stored in the jury room. Appearances: R Paul Yetter, Philip Barber, Marcia Robinson Lowry, Christina Wilson, David Allen Dodds, Thomas A Albright.(Digital # 11:09 − 11:43)(ERO:A. Benavidez), filed.(lsmith, ) Modified on 9/6/2013 (lsmith, 2). (Main Document 180 replaced on 9/6/2013) (lsmith, 2). (Entered: 01/17/2013)
181 Minute Entry for proceedings held before Judge Janis Graham Jack. Day #1 ofCLASS CERTIFICATION HEARING held on 1/22/2013. Court heard Pltff witness #1, Anna Ricker; #2, Viola Miller, and #3 Coleen McCall (by deposition). Appearances: R Paul Yetter, Philip Barber, Marcia Robinson Lowry, Christina Wilson, Andrew Bowman Stephens, Marc Rietvelt, Thomas A Albright.(Digital # 8:27 − 10:08; 10:22 − 12:08; 1:00 − 3:12; 3:26 − 5:31)(ERO:A. Benavidez), filed.(lsmith, ) (Entered: 01/25/2013)

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01/22/2013 01/23/2013
01/23/2013 01/24/2013
02/13/2013 03/15/2013 03/15/2013 03/15/2013 03/18/2013 03/22/2013 03/25/2013

182 Exhibit List by A.M., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., T.C., T.H., Z.H., filed.(lsmith, ) (Entered: 01/25/2013)
183 Minute Entry for proceedings held before Judge Janis Graham Jack. CLASS CERTIFICATION HEARING held on 1/23/2013. Pltff witnesses: Jill Duerr Berrick, Debra Emerson (by deposition), Gail Gonzalez (by deposition, Edward John Liebjott (by deposition), Don Warren, Datara Dene Butler (by deposition), Stacy L. Lake (by deposition, Catherine Guess (by deposition), Estela Vasquez. Pltff's oral motion to allow Ms. Vasquez to act as 'next friend' for LH and CH, orally granted. Testimony of Pltff witnesses: Carla B. Morrison, Bobbie Young. Oral Motion to amend initials "ST" to "SR" granted orally. Pltff's oral motion to appoint Ms. Young as 'next friend' to JR, SR, and MR, orally granted. Testimony of pltff witnesses: Charles Batemen (by deposition), Daryl Chansuthus. Pltff's rest conditionally with the exception of Richard Klarberg's possible testimony by video. Recess. Appearances: Christopher D Porter, R Paul Yetter, Philip Barber, Marcia Robinson Lowry, Christina Wilson, David Allen Dodds, Marc Rietvelt, Thomas A Albright.(Digital # 8:25 − 10:25; 10:38 − 12:10; 1:10 − 3:05; 3:19 − 4:32)(ERO:A. Benavidez), filed.(lsmith, ) (Entered: 01/29/2013)
184 Exhibit List by Rick Perry, filed.(lsmith, ) Modified on 1/29/2013 (lsmith, ). (Entered: 01/29/2013)
185 Minute Entry for proceedings held before Judge Janis Graham Jack. CLASS CERTIFICATION HEARING held on 1/24/2013. Deft. withdraws objection to affidavit of Richad Klarberg. There will be no need to call him by video. Deft. Rests. Court will give parties 10 minutes to prepare for Closing Arguments. Pltff's wish to call Audra Deckinga; Defts. object. Court hears testimony of Audra Deckinga. All parties rest and close. Court hears closing arguments. Pltffs brief due in 60 days; Deft's brief due 20 days thereafter. Hearing concluded. Appearances: Christopher D Porter, R Paul Yetter, Philip Barber, Marcia Robinson Lowry, Christina Wilson, David Allen Dodds, Marc Rietvelt, Thomas A Albright.(Digital # 8:25 − 8:31; 8:41 − 10:15; 10:25 − 11:54)(ERO:A. Benavidez), filed.(lsmith, ) (Entered: 01/29/2013)
186 AO 435 TRANSCRIPT ORDER FORM by Pamela Wofford/ Yetter Coleman. This is to order a transcript of Motion Hearing held on 01/22/2013 − 01/24/2013 before Judge Janis Graham Jack (Original). Transcriber: Exceptional Reporting, filed. (abenavidez, ) (Entered: 02/13/2013)
187 TRANSCRIPT re: CLASS CERTIFICATION HEARING held on 1/22/13 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Release of Transcript Restriction set for 6/13/2013., filed. (thudson, ) (Entered: 03/15/2013)
188 TRANSCRIPT re: CONTINUED CLASS CERTIFICATION HEARING held on 1/23/13 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Release of Transcript Restriction set for 6/13/2013., filed. (thudson, ) (Entered: 03/15/2013)
189 TRANSCRIPT re: CONTINUED CLASS CERTIFICATION HEARING held on 1/24/13 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Release of Transcript Restriction set for 6/13/2013., filed. (thudson, ) (Entered: 03/15/2013)
190 Notice of Filing of Official Transcript as to 189 Transcript, 187 Transcript, 188 Transcript. Party notified, filed. (vrios, ) (Entered: 03/18/2013)
191 MOTION for Philip Barber to Withdraw as Attorney by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H., filed. Motion Docket Date 4/12/2013. (Attachments: # 1 Proposed Order)(Barber, Philip) (Entered: 03/22/2013)
192 EXHIBITS by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H., filed. (Attachments: # 1 Exhibit PX 2, # 2 Exhibit PX 7, # 3 Exhibit PX 12, # 4 Exhibit PX 13, # 5 Exhibit PX 15, # 6 Exhibit PX 21, # 7 Exhibit PX 39, # 8 Exhibit PX 48, # 9 Exhibit PX 49, # 10 Exhibit PX 50, # 11 Exhibit PX 69, # 12 Exhibit PX 70, # 13 Exhibit PX 72, # 14 Exhibit PX 116, # 15 Exhibit PX 148, # 16 Exhibit PX 149, # 17 Exhibit PX 162, # 18 Exhibit PX 163, # 19 Exhibit PX 182, # 20 Exhibit PX 183, # 21 Exhibit PX 186, # 22 Exhibit PX 234, # 23 Exhibit PX 235, # 24 Exhibit PX 236, # 25 Exhibit PX 238, # 26 Exhibit PX 244, # 27 Exhibit PX 248, # 28 Exhibit PX 250, # 29 Exhibit PX 251, # 30 Exhibit PX 252, # 31 Exhibit PX

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03/25/2013 03/25/2013
03/25/2013 04/05/2013 04/09/2013 04/15/2013 04/15/2013
04/23/2013 04/23/2013 04/29/2013 05/02/2013
05/03/2013 05/09/2013
05/09/2013 05/09/2013 05/09/2013 05/20/2013 05/20/2013

253)(Wilson, Christina) (Entered: 03/25/2013)
193 Sealed Event, filed. (With attachments) (Entered: 03/25/2013)
194 DECLARATION of Adriana T. Luciano, filed. (Attachments: # 1 Exhibit PX 254, # 2 Exhibit PX 255, # 3 Exhibit PX 271, # 4 Exhibit PX 272, # 5 Exhibit PX 273, # 6 Exhibit PX 276, # 7 Exhibit PX 287, # 8 Exhibit PX 295, # 9 Exhibit PX 296, # 10 Exhibit PX 297, # 11 Exhibit PX 301, # 12 Exhibit PX 302, # 13 Exhibit PX 306, # 14 Exhibit PX 319, # 15 Exhibit PX 320, # 16 Exhibit PX 323, # 17 Exhibit PX 324, # 18 Exhibit PX 325, # 19 Exhibit PX 375, # 20 Exhibit PX 390, # 21 Exhibit PX 406, # 22 Exhibit PX 427, # 23 Exhibit PX 435, # 24 Exhibit DX 22, # 25 Exhibit DX 34, # 26 Exhibit DX 45, # 27 Exhibit DX 49, # 28 Exhibit DX 50, # 29 Exhibit DX 56, # 30 Exhibit DX 57, # 31 Exhibit DX 58)(Luciano, Adriana) (Entered: 03/25/2013)
195 BRIEF in Support of Motion for Class Certification by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H., filed.(Lowry, Marcia) (Entered: 03/25/2013)
196 Sealed Event, filed. (Entered: 04/05/2013)
197 Sealed Order, filed. (Entered: 04/09/2013)
198 BRIEF IN OPPOSITION by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed.(Albright, Thomas) (Entered: 04/15/2013)
199 MOTION for Partial Summary Judgment on the Claims of Plaintiffs D.I., S.R., M.R., and J.R by Howard Baldwin, Jr., Rick Perry, Thomas Suehs, filed. Motion Docket Date 5/6/2013. (Attachments: # 1 Affidavit Affidavit of Wyndi McPeters, # 2 Proposed Order)(Albright, Thomas) (Entered: 04/15/2013)
200 Redaction of 187 Transcript, filed. (gwintrow, ) (Entered: 04/23/2013)
201 Redaction of 188 Transcript, filed. (gwintrow, ) (Entered: 04/23/2013)
202 REPLY to 198 Brief in Opposition, filed by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lowry, Marcia) (Entered: 04/29/2013)
203 Unopposed MOTION for Extension of Time to Respond to Defendants' Motion for Partial Summary Judgment by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H., filed. Motion Docket Date 5/23/2013. (Attachments: # 1 Proposed Order)(Lowry, Marcia) (Entered: 05/02/2013)
204 ORDER granting 203 Motion for Extension of Time.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, ) (Entered: 05/03/2013)
205 MOTION for Leave to File Fourth Amended Complaint by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H., filed. Motion Docket Date 5/30/2013. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Lowry, Marcia) (Entered: 05/09/2013)
206 Fourth AMENDED COMPLAINT against All Defendants filed by J.S., J.R., M.R., S.A., M.D., K. E., C.H., H.V., S.T., D.I., A.M., P.O., L.H., Z.H..(Lowry, Marcia) (Entered: 05/09/2013)
207 Sealed Event, filed. (With attachments) (Entered: 05/09/2013)
208 RESPONSE in Opposition to 199 MOTION for Partial Summary Judgment on the Claims of Plaintiffs D.I., S.R., M.R., and J.R, filed by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H.. (Lowry, Marcia) (Entered: 05/09/2013)
209 RESPONSE in Opposition to 205 MOTION for Leave to File Fourth Amended Complaint, filed by Howard Baldwin, Jr., Rick Perry, Thomas Suehs. (Albright, Thomas) (Entered: 05/20/2013)
210 REPLY to 208 Response in Opposition to Motion for Partial Summary Judgment, filed by Howard Baldwin, Jr., Rick Perry, Thomas Suehs. (Albright, Thomas) (Entered: 05/20/2013)

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05/23/2013 05/24/2013
08/27/2013
08/27/2013 08/27/2013 09/13/2013 09/26/2013 09/27/2013 10/18/2013 11/05/2013
11/14/2013 11/14/2013 11/15/2013 11/15/2013 11/19/2013 11/20/2013 11/21/2013 11/25/2013

211 Sealed Event, filed. (Entered: 05/23/2013)
212 MOTION for Leave to File Reply in Support of Motion for Leave to File Fourth Amended Complaint by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H., filed. Motion Docket Date 6/14/2013. (Attachments: # 1 Proposed Order, # 2 Reply in Support of Motion for Leave to File Fourth Amended Complaint, # 3 Corrected Fourth Amended Complaint)(Wilson, Christina) (Entered: 05/24/2013)
213 ORDER granting in part and denying in part 160 Motion to Certify Class; denying as moot 199 Motion for Partial Summary Judgment; granting 205 Motion for Leave to File; granting 212 Motion for Leave to File.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, ) (Entered: 08/27/2013)
214 REPLY in Support of 205 MOTION for Leave to File Fourth Amended Complaint, filed by A.M., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.T., Z.H.. (mserpa, ) (Entered: 08/27/2013)
215 CORRECTED FOURTH AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION against All Defendants filed by M.D. et al.(mserpa, ) (Entered: 08/27/2013)
216 ANSWER to 215 Amended Complaint/Counterclaim/Crossclaim etc. by Kyle Janek, Rick Perry, John J Specia, Jr, filed.(Rietvelt, Marc) (Entered: 09/13/2013)
217 STIPULATION of Dismissal AS TO PLAINTIFFS D.I., J.R., S.R., AND M.R. by Kyle Janek, Rick Perry, John J Specia, Jr, filed.(Albright, Thomas) (Entered: 09/26/2013)
218 STIPULATION of Dismissal AS TO PLAINTIFF K.E. by Kyle Janek, Rick Perry, John J Specia, Jr, filed.(Rietvelt, Marc) (Entered: 09/27/2013)
219 STIPULATION of Dismissal as to Plaintiffs' P.O. and S.S. by Kyle Janek, Rick Perry, John J Specia, Jr, filed.(Albright, Thomas) (Entered: 10/18/2013)
220 MOTION for Partial Summary Judgment on the Claims of the Proposed Unverified Kinship Subclass by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 11/26/2013. (Attachments: # 1 Exhibit Exhibit A K Bailey Affidavit Redacted, # 2 Proposed Order)(Albright, Thomas) (Entered: 11/05/2013)
221 MOTION for Sara Michael Bartosz to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 12/5/2013. (Bell, Patricia) (Entered: 11/14/2013)
222 MOTION for Julia Lucia Davis to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 12/5/2013. (Bell, Patricia) (Entered: 11/14/2013)
223 ORDER striking 221 Motion to Appear Pro Hac Vice. Order mailed to Sara Michael Bartosz(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 11/15/2013)
224 ORDER granting 222 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 11/18/2013)
225 Agreed PROPOSED ORDER on UKS MPSJ re: 220 MOTION for Partial Summary Judgment on the Claims of the Proposed Unverified Kinship Subclass, filed.(Albright, Thomas) (Entered: 11/19/2013)
226 MOTION for Michael Kenneth Bartosz to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 12/11/2013. (Canales, J) (Entered: 11/20/2013)
227 ORDER STRIKING PLEADING striking 226 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 11/21/2013)
228 Order of USCA; USCA No. 13−90045. Opinion Order, filed.(lrivera, 2) (Entered: 11/25/2013)

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12/09/2013 12/12/2013 12/19/2013
01/02/2014 01/02/2014 01/06/2014
01/07/2014
01/08/2014
01/09/2014 01/09/2014 01/10/2014 03/05/2014 03/06/2014

229 NOTICE of Designation of Attorney−in−Charge by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Yetter, R) (Entered: 12/09/2013)
230 NOTICE of Setting. Parties notified. Telephone Conference set for 12/19/2013 at 03:00 PM before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 12/12/2013)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 12/19/2013 moot 220 MOTION for Partial Summary Judgment on the Claims of the Proposed Unverified Kinship Subclass is moot. Ms. Lowrey is to file Memorandum of Disvoery Dispute; Mr. Alright to respond promptly. Court sets date (Scheduling order to follow)( Telephone Conference set for 1/8/2014 at 01:15 PM before Judge Janis Graham Jack, Trial set for 12/1/2014 at 08:30 AM before Judge Janis Graham Jack). Appearances: Barry F McNeil, R Paul Yetter, Marcia Robinson Lowry, Thomas A Albright, Marc Rietvelt.(Digital # 3:05 − 3:26)(ERO:A. Benavidez), filed.(lsmith, 2) (Entered: 12/19/2013)
231 DECLARATION of Marcia Robinson Lowry in Support of Plaintiffs' Memorandum Regarding the Status of Open Discovery Items and Request for Setting of Compliance Date, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Lowry, Marcia) (Entered: 01/02/2014)
232 MEMORANDUM Regarding the Status of Open Discovery Items and Request for Setting of Compliance Date by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed.(Lowry, Marcia) (Entered: 01/02/2014)
233 SCHEDULING ORDER. Pltf Expert Witness List due by 8/22/2014. Deft Expert Witness List due by 9/12/2014. Discovery due by 9/24/2014. Dispositive Motion Filing due by 5/14/2014. Hearings on expert testimony and/or qualifications (i.e., Daubert and Markman) shall be requested no later than October 9, 2014. Joint Pretrial Order due by 11/14/2014. Trial set for 12/1/2014 at 08:30 AM before Judge Janis Graham Jack(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 01/06/2014)
234 DEFENDANTS RESPONSE TO PLAINTIFFS MEMORANDUM REGARDING THE STATUS OF OPEN DISCOVERY ITEMS AND REQUEST FOR SETTING OF COMPLIANCE DATE by Kyle Janek, Rick Perry, John J Specia, Jr, filed. (Attachments: # 1 Exhibit Exhibit A − C. Wilson email 1−3−14, # 2 Exhibit Exhibit B − M. Rietvelt email 1−3−14, # 3 Exhibit Exhibit C − C. Wilson email 1−6−14)(Albright, Thomas) (Entered: 01/07/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 1/8/2014. Court heard discussion of 18 pending requests for productions. #18 was resolved by the parties. Court made ruling of remaining 17. (Order to follow) Appearances: David Allen Dodds, Marcia Robinson Lowry, Thomas A Albright, Marc Rietvelt.(Digital # 1:07 − 1:26)(ERO:A. Benavidez), filed.(lsmith, 2) (Entered: 01/08/2014)
235 MOTION for Michael Kenneth Bartosz to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 1/30/2014. (Attachments: # 1 Unredacted attachment Declaration, # 2 Unredacted attachment Certificate of Service)(Yetter, R) (Entered: 01/09/2014)
236 DISCOVERY ORDER.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 01/09/2014)
237 ORDER granting 235 Motion to Appear Pro Hac Vice. Michael Kenneth Bartosz granted leave to appear for Plaintiffs, M.D., bnf Sarah R. Stukenberg, et al.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 01/10/2014)
238 MOTION for April L. Farris to Withdraw as Attorney by A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 3/26/2014. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 03/05/2014)
239 ORDER granting 238 Motion to Withdraw as Attorney. Attorney April L Farris terminated.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 03/06/2014)

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03/28/2014 04/05/2014
04/08/2014 04/18/2014
04/21/2014 05/14/2014 05/14/2014 05/15/2014 05/16/2014 05/16/2014 05/17/2014
05/17/2014
05/19/2014 05/19/2014 05/20/2014 05/20/2014 06/17/2014

240 ORDER granting 191 Motion to Withdraw as Attorney. Attorney Philip Barber terminated.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 03/28/2014)
241 MOTION for Joshua Rosenthal to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., H.V., J.R., J.S., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 4/28/2014. (Attachments: # 1 Unredacted attachment Declaration, # 2 Unredacted attachment Certificate of Service)(Yetter, R) (Entered: 04/05/2014)
242 ORDER granting 241 Motion for Joshua Rosenthal to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(amireles, 2) (Entered: 04/09/2014)
243 MOTION for Melissa Cohen to Withdraw as Attorney by A.M., A.R., C.H., H.V., J.S., M.D., S.A., Z.H., filed. Motion Docket Date 5/9/2014. (Attachments: # 1 Proposed Order Proposed Order Granting Mot. to Withdraw Melissa Cohen as Counsel for Plaintiffs)(Cohen, Melissa) (Entered: 04/18/2014)
244 ORDER striking 243 Motion for Melissa Cohen to Withdraw as Attorney.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 04/21/2014)
245 DECLARATION of Marcia Robinson Lowry in Support of Plaintiffs' Unopposed Motion to Amend Scheduling Order, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lowry, Marcia) (Entered: 05/14/2014)
246 Unopposed MOTION to Amend Scheduling Order by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. Motion Docket Date 6/4/2014. (Attachments: # 1 Proposed Order)(Lowry, Marcia) (Entered: 05/14/2014)
247 ORDER denying 246 Motion to Amend Scheduling Order.(Signed by Judge Janis Graham Jack) Parties notified.(arodriguez, 2) (Entered: 05/15/2014)
248 MOTION for Darren G. Gibson to Withdraw as Attorney by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 6/6/2014. (Attachments: # 1 Proposed Order)(Gibson, Darren) (Entered: 05/16/2014)
249 MOTION for James C. Todd to Withdraw as Attorney by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 6/6/2014. (Attachments: # 1 Proposed Order)(Todd, James) (Entered: 05/16/2014)
250 MOTION for Sarah T. Russo to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 6/9/2014. (Attachments: # 1 Unredacted attachment Declaration, # 2 Unredacted attachment Certificate of Service)(Yetter, R) (Entered: 05/17/2014)
251 MOTION for Rachel B. Nili to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 6/9/2014. (Attachments: # 1 Unredacted attachment Declaration, # 2 Unredacted attachment Certificate of Service)(Yetter, R) (Entered: 05/17/2014)
252 ORDER granting 248 Motion to Withdraw as Attorney. Attorney Darren Glenn Gibson terminated.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 05/19/2014)
253 ORDER granting 249 Motion to Withdraw as Attorney. Attorney James C Todd terminated.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 05/19/2014)
254 ORDER granting 250 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 05/20/2014)
255 ORDER granting 251 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 05/20/2014)
256 MOTION for Aaron Finch to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., H.V., J.R., J.S., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 7/8/2014. (Attachments: # 1 Affidavit of Aaron Finch, # 2 Unredacted attachment Certificate of Service)(Yetter, R) (Entered: 06/17/2014)

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06/18/2014 08/28/2014
08/28/2014 08/28/2014 10/09/2014 10/09/2014 10/09/2014 10/09/2014 10/09/2014 10/09/2014 10/09/2014 10/10/2014
10/10/2014
10/10/2014 11/03/2014 11/03/2014 11/03/2014

257 ORDER granting 256 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 06/18/2014)
258 MOTION for Amelia J. Cardenas to Withdraw as Attorney by A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 9/18/2014. (Attachments: # 1 Proposed Order)(Cardenas, Amelia) (Entered: 08/28/2014)
259 NOTICE of Appearance by Vincent P. Circelli on behalf of A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. (Circelli, Vincent) (Entered: 08/28/2014)
260 ORDER granting 258 Motion to Withdraw as Attorney.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 08/28/2014)
261 NOTICE of attorney substitution by Kyle Janek, Rick Perry, John J Specia, Jr. Attorney James B Eccles terminated, filed. (Albright, Thomas) (Entered: 10/09/2014)
262 MOTION to Exclude Testimony of Plaintiffs' Expert Daryl Chansuthus by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 10/30/2014. (Attachments: # 1 Proposed Order)(Albright, Thomas) (Entered: 10/09/2014)
263 MOTION to Exclude Expert Testimony of Plaintiffs' Viola Miller by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 10/30/2014. (Attachments: # 1 Proposed Order)(Albright, Thomas) (Entered: 10/09/2014)
264 MOTION to Exclude Testimony of Plaintiffs' Expert Mary Dee Richter by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 10/30/2014. (Attachments: # 1 Proposed Order)(Albright, Thomas) (Entered: 10/09/2014)
265 MOTION to Exclude Testimony of Plaintiffs' Expert Caroline Long Burry by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 10/30/2014. (Attachments: # 1 Proposed Order)(Rietvelt, Marc) (Entered: 10/09/2014)
266 MOTION to Exclude Testimony of Plaintiffs' Expert Dr. William Carter by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 10/30/2014. (Attachments: # 1 Proposed Order)(Rietvelt, Marc) (Entered: 10/09/2014)
267 MOTION to Exclude Testimony of Plaintiffs' Expert Dr. Dennis Zeller by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 10/30/2014. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 10/09/2014)
268 MOTION for Vincent P. Circelli to Withdraw as Attorney by A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 10/31/2014. (Attachments: # 1 Proposed Order Granting Vincent Circelli to Withdraw as Counsel for Plaintiffs)(Circelli, Vincent) (Entered: 10/10/2014)
269 ORDER denying 262 Motion to Exclude; denying 263 Motion to Exclude; denying 264 Motion to Exclude; denying 265 Motion to Exclude; denying 266 Motion to Exclude; denying 267 Motion to Exclude.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 10/10/2014)
270 ORDER granting 268 Motion to Withdraw as Attorney. Attorney Vincent Paul Circelli terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 10/10/2014)
271 MOTION to Exclude Testimony of Dr. Edwin Basham Due to Improper Conduct by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. Motion Docket Date 11/24/2014. (Wilson, Christina) (Entered: 11/03/2014)
272 NOTICE of Setting. Parties notified. Telephone Conference set for 11/4/2014 at 01:15 PM before Judge Janis Graham Jack, filed. (Hearing on Motion D# #271)(lsmith, 2) (Entered: 11/03/2014)
273 PROPOSED ORDER re: 271 MOTION to Exclude Testimony of Dr. Edwin Basham Due to Improper Conduct, filed.(Wilson, Christina) (Entered: 11/03/2014)

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11/04/2014 11/04/2014
11/08/2014 11/13/2014 11/14/2014
11/18/2014 11/19/2014
11/20/2014 11/21/2014 11/24/2014 11/24/2014 11/25/2014 11/26/2014

274 RESPONSE to 271 MOTION to Exclude Testimony of Dr. Edwin Basham Due to Improper Conduct filed by Kyle Janek, Rick Perry, John J Specia, Jr. (Attachments: # 1 Exhibit Transcript of Status Conference, # 2 Exhibit Declaration Basham, # 3 Proposed Order)(Rietvelt, Marc) (Entered: 11/04/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE re: Motion to Exclude Expert testimony of Dr. Edwin Basham held on 11/4/2014. Court hears discussion, and asks that Dr. Carter's report be submitted. Dr. Basham is not to be around the children anymore. Questions came from Diagnostic Conclusions on page 24. Court will hear full discussion at trial. Heariang concluded. Appearances: R Paul Yetter, Marcia Robinson Lowry, Rachel Brodin Nili, Thomas A Albright, Marc Rietvelt.(Digital # 1:48 − 2:04)(ERO:Arlene Rodriguez), filed.(lsmith, 2) (Entered: 11/04/2014)
275 MOTION for Elizabeth Pitman to Appear Pro Hac Vice by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 12/1/2014. (Attachments: # 1 Unredacted attachment Declaration of E. Pitman, # 2 Unredacted attachment Certificate of Service)(Yetter, R) (Entered: 11/08/2014)
276 ORDER granting 275 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 11/14/2014)
277 Joint Proposed Pretrial Order by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Unredacted attachment Plaintiffs' Exhibit List Copy 1, # 2 Unredacted attachment Plaintiffs' Exhibit List Copy 2, # 3 Unredacted attachment Defendants' Exhibit List Copy 1, # 4 Unredacted attachment Defendants' Exhibit List Copy 2, # 5 Unredacted attachment Plaintiffs' Witness List, # 6 Unredacted attachment Defendants' Witness List, # 7 Unredacted attachment Plaintiffs' Proposed Findings of Fact, # 8 Unredacted attachment Defendants' Proposed Findings of Fact, # 9 Unredacted attachment Plaintiffs' Proposed Conclusions of Law, # 10 Unredacted attachment Defendants' Proposed Conclusions of Law, # 11 Unredacted attachment Plaintiffs' Deposition Designations, # 12 Unredacted attachment Defendants' Deposition Counterdesignations)(Wilson, Christina) (Entered: 11/14/2014)
278 NOTICE of Setting. Parties notified. Telephone Conference set for 11/19/2014 at 03:30 PM before Judge Janis Graham Jack, filed. (FINAL PRETRIAL CONFERENCE BY CONFERENCE CALL)(lsmith, 2) (Entered: 11/18/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 11/19/2014 (Final Pretrial Conference). Court discusses issues the the Joint Pretrial Order. Parties are to submit one disc with all agreed exhbitis and one with unagreed exhibits. Only one hard copy of exhibits to be submitted to the Court. Depositions to be read into the record. Trial will be 10 days, beginning at 8:00 a.m. to 5:30 pm; 1 hr for lunch, and 2 15−minute breaks. No demonstrative exhibits − only admitted exhibits. Hearing concluded. Appearances: R Paul Yetter, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt.(Digital # 3:42 − 3:52)(ERO:A. Rodriguez), filed.(lsmith, 2) (Entered: 11/20/2014)
279 Amended Witness List by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed.(Wilson, Christina) (Entered: 11/20/2014)
280 Amended Exhibit List by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed.(Wilson, Christina) (Entered: 11/21/2014)
281 OBJECTIONS to Plaintiffs' Trial Exhibits, filed by Kyle Janek, Rick Perry, John J Specia, Jr. (Albright, Thomas) (Entered: 11/24/2014)
282 OBJECTIONS to Defendants' Trial Exhibits, filed by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H.. (Wilson, Christina) (Entered: 11/24/2014)
283 Corrected OBJECTIONS to Defendants' Trial Exhibits, filed by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H.. (Wilson, Christina) (Entered: 11/25/2014)
284 Amended Exhibit List by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed.(Wilson, Christina) (Entered: 11/26/2014)

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11/26/2014 12/02/2014 12/02/2014 12/03/2014
12/04/2014 12/05/2014 12/08/2014 12/09/2014

285 OBJECTIONS Pltfs' Trial Exhibit, filed by Kyle Janek, Rick Perry, John J Specia, Jr. (Albright, Thomas) (Entered: 11/26/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. First day of BENCH TRIAL held on 12/1/2014. Court heard Opening Statements. Pltff Witness #1, Colleen McCall; Pltff Witness #2 Dr. Dennis Zeller. Case recess until 8:00 a.m. on 12/2/14. Appearances:Bronson Parker/Pltff; Sara Bartosz/Pltff; Adrian Perez, CSO. R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt.(Digital # 7:58 −9:50; 10:05 − 12:05; 1:10 − 3:29; 3:58 − 5:35)(ERO:Arlene Rodriguez), filed.(lsmith, 2) (Entered: 12/02/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. Second day of BENCH TRIAL held on 12/2/2014. Pltff Witness #3 Javier Solis; Pltff Witness #4 Beth Miller; Pltff Witness #5 Karen Langsley; Pltff Witness #6, Jennifer Talley; Pltff Witness #7, Lisa Black, Pltff Witness #8 Paul Morris. Recess until 8:00 a.m. on 12/3/2014. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Sarah Bartosz.(Digital # 7:54 − 10:17; 10:30 − 11:53; 1:05 − 3:22; 3:43 − 5:32)(ERO:Arlene Rodriguez), filed.(lsmith, 2) (Entered: 12/02/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. Third day of BENCH TRIAL held on 12/3/2014. Pltff Witness #9, Katrina Voelkel; Pltiff Witness #10, Jordan Arce; Pltff Witness #11, Crystal Bentley; Pltff Witness #12, Daryl K. Chansuthus; Pltff Witness #13, Sandra Carpenter; Pltff Witness #14, Darryl Jackson; Pltff Witness #15, Patricia Virgil; Pltff Witness #16, Sarah Stukenberg Kleager; Pltff Witness #17, Dr. Viola Miller. Recess until 8:00 a.m on December 4, 2014. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Sarah Bartosz.(Digital # 7:55 − 10:00; 10:21 −11:43; 1:03 − 3:25; 4:02 − 5:30)(ERO:Arlene Rodriguez), filed.(lsmith, 2) (Entered: 12/03/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. 4th day of BENCH TRIAL held on 12/4/2014. Pltff Witness #17, Dr. Viola Miller; Pltff Witness #18, Dr. Caroline Long Burry; Pltff Witness #19, Kristopher Sharp; Pltff Witness #20, Christina Martin (testimony interrupted to allow the issue of counsel to be determined); Pltff Witness #21, Laurie Bensky. Recess until 8:00 a.m. on 12/5/2014. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Sarah Bartosz.(Digital # 7:52 − 9:10; 9:18 − 11:15; 11:28 − 12:08; 1:10 − 3:06; 3:29 − 4:33; 4:50 − 5:28)(ERO:Arlene Rodriguez), filed.(lsmith, 2) (Entered: 12/04/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. 5th day of BENCH TRIAL held on 12/5/2014. Pltff Witness #22 Mary Dee Richter; Pltff Witness @34 Dr. William Lee Carter; Pltff Witness #24 Anna Ricker. Statiscal Report from Laurie Bensky is due 12/10/2014. Case to be recalled on Monday, 12/8/2014 at 8:00 a.m. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Sarah Bartosz.(Digital # 8:05 − 10:18; 10:34 − 12:15; 1:30 − 3:28; 3:45 − 3:56)(ERO:A. Rodriguez; L. Cayce), filed.(lsmith, 2) (Entered: 12/05/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. 6th day of BENCH TRIAL held on 12/8/2014. Deft. Witness #1, Judy Bowman Pitts; Deft Witness #2, Camille Gilliam; Deft. Witness #3 George Cannata; Pltff Witness #25, Estela C. Vasquez; Deft. Witness #4, Jenny Hinson. Recess until 8:00 a.m. on 12/9/2014. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Sarah Bartosz.(Digital # 7:58 − 9:;48; 10:10 − 11:55; 1:16 − 3:17; 3:45 − 5:45)(ERO: A. Rodriguez), filed.(lsmith, 2) (Entered: 12/08/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. 7th day of BENCH TRIAL held on 12/9/2014. Testimony of Deft. Witness #4, Jenny Hinson, continued; Testimony of Pltff Witness #20 Christina Martin, resumed; Deft. Witness #5, Alan Salzberg; Deft. Witness #6 Gail Gonzalez; Deft. Witness #7, Kaysie Reinhardt. Case recessed until 12/10/14 at 8:00 a.m. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt,Sarah Bartosz.(Digital # 8:01 − 10:13; 10:30 − 12:00; 1:21 − 3:16; 3:34 − 5:30)(ERO:A. Rodriguez), filed (Entered: 12/09/2014)

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12/10/2014
12/11/2014
12/12/2014
12/12/2014 12/12/2014 12/17/2014 12/19/2014 12/19/2014 12/19/2014 12/22/2014 12/23/2014 12/23/2014 12/31/2014 01/05/2015

Minute Entry for proceedings held before Judge Janis Graham Jack. 8th day of BENCH TRIAL held on 12/10/2014. Deft. Witness #8, Jean Shaw; Deft. Witness #9, Frianita Wilson; Deft. Witness #10, Christine Maldonado; Deft. Witness #11, Linda Sus McNall; Deft. Witness #12, Patricia Redmaker Wilson. Recess until 12/11/2014 at 8:00 a.m. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Sarah Bartosz.(Digital # 7:46 − 10:44; 3:19 − 6:05)(ERO:A. Rodriguez), filed.(lsmith, 2) (Entered: 12/10/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. 9:th day of BENCH TRIAL held on 12/11/2014. Testimony of Deft. Witness #12, Paticia Redmaker Wilson, resumed; Deft. Witness #13, Dr. Edwin Basham; Deft. witness #14, Dr. Jane Burstain. Recess until 12/12/2014 at 9:00 a.m. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Sarah Bartosz.(Digital # 7:56 − 10:03; 10:24 −11:48; 1:16 − 3:12; 3:28 − 5:41)(ERO:Arlene Rodriguez), filed.(lsmith, 2) (Entered: 12/11/2014)
Minute Entry for proceedings held before Judge Janis Graham Jack. 10th day of BENCH TRIAL held on 12/12/2014. Deft. Witness Laurie Bensky, recalled. Deft. Witness #15, John Specia, Jr. Evidence closed. Pltff Brief due by 1/15/2015. Deft. Response due by 2/16/2015. Closing Arguments to be set at a later time after briefing. Parties are to submit admitted exhibits on CD's. Appearances: R Paul Yetter, Christina Wilson, Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Marc Rietvelt, Michael Kenneth Bartosz.(Digital # 8:53 − 10:25; 10:30 − 12:08)(ERO:A. Rodriguez), filed.(lsmith, 2) (Entered: 12/12/2014)
286 PLAINTIFF'S EXHIBIT LIST, filed. (Attachments: # 1 attachment, # 2 attachment)(lrivera, 2) (Entered: 12/16/2014)
287 Defendant Exhibit List, filed.(lrivera, 2) (Entered: 12/16/2014)
288 AO 435 TRANSCRIPT ORDER FORM by Paul Yetter. This is to order a transcript of Trial held on 12/01/2014 − 12/12/2014 before Judge Janis Graham Jack (Original). Transcriber: Exceptional Reporting, filed. (arodriguez, 2) (Entered: 12/19/2014)
289 Unopposed MOTION to Seal Exhibits by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 1/9/2015. (Attachments: # 1 Proposed Order)(Rietvelt, Marc) (Entered: 12/19/2014)
290 Transcript Order by Kyle Janek, Rick Perry, John J Specia, Jr, filed.(Rietvelt, Marc) (Entered: 12/19/2014)
292 AO 435 TRANSCRIPT ORDER FORM by Marc Rietvelt. This is to order a transcript of Trial held on 12/01/2014 − 12/12/2014 before Judge Janis Graham Jack (Copy). Transcriber: Exceptional Reporting, filed. (arodriguez, 2) (Entered: 12/22/2014)
291 ORDER granting 289 Motion to Seal Defendants admitted trial exhibits 120; 253; 262; 265; and 266.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 12/22/2014)
293 Unopposed MOTION for Extension of Time To File Post−Trial Briefing by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. Motion Docket Date 1/13/2015. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 12/23/2014)
294 ORDER granting 293 Motion for Extension of Time to File Post−Trial Briefing.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 12/23/2014)
295 MOTION to Supplement Trial Exhibits by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 1/21/2015. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 12/31/2014)
296 Amended MOTION to Supplement Trial Exhibits by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 1/26/2015. (Attachments: # 1 Exhibit PX1872, # 2 Exhibit PX1873, # 3 Unredacted attachment Proposed Order)(Yetter, R) (Entered: 01/05/2015)

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01/07/2015 01/09/2015 01/12/2015 01/12/2015 01/12/2015 01/12/2015 01/12/2015 01/12/2015 01/12/2015 01/13/2015 01/16/2015 01/16/2015 01/16/2015

297 Supplemental MOTION to Seal Exhibits by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 1/28/2015. (Attachments: # 1 Proposed Order)(Rietvelt, Marc) (Entered: 01/07/2015)
298 Unopposed MOTION to Supplement Trial Exhibits by Kyle Janek, Rick Perry, John J Specia, Jr, filed. Motion Docket Date 1/30/2015. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Rietvelt, Marc) (Entered: 01/09/2015)
299 TRANSCRIPT re: CROSS EXAMINATION OF JOHN SPECIA DURING TRIAL − DAY 10 held on 12/12/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/13/2015., filed. (thudson, ) (Entered: 01/12/2015)
300 TRANSCRIPT re: DIRECT AND REDIRECT EXAMINATION OF LISA BLACK DURING TRIAL − DAY 2 held on 12/2/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/13/2015., filed. (thudson, ) (Entered: 01/12/2015)
301 TRANSCRIPT re: DIRECT EXAMINATION OF PAUL MORRIS DURING TRIAL − DAY 2 held on 12/2/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/13/2015., filed. (thudson, ) (Entered: 01/12/2015)
302 TRANSCRIPT re: DIRECT EXAMINATION OF VIOLA MILLER DURING TRIAL − DAY 3 held on 12/3/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/13/2015., filed. (thudson, ) (Entered: 01/12/2015)
303 TRANSCRIPT re: DIRECT EXAMINATION OF VIOLA MILLER DURING TRIAL − DAY 4 held on 12/4/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/13/2015., filed. (thudson, ) (Entered: 01/12/2015)
304 TRANSCRIPT re: CROSS AND RECROSS EXAMINATION OF JEAN SHAW DURING TRIAL − DAY 8 held on 12/10/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/13/2015., filed. (thudson, ) (Entered: 01/12/2015)
305 TRANSCRIPT re: DIRECT AND REDIRECT EXAMINATION OF COLLEEN MC CALL DURING TRIAL − DAY 1 held on 12/1/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/13/2015., filed. (thudson, ) (Entered: 01/12/2015)
306 Notice of Filing of Official Transcript as to 305 Transcript, 304 Transcript, 299 Transcript, 302 Transcript, 303 Transcript, 301 Transcript, 300 Transcript,. Party notified, filed. (dterrell, 2) (Entered: 01/13/2015)
307 TRANSCRIPT re: DIRECT AND REDIRECT EXAMINATION OF SANDRA CARPENTER DURING TRIAL − DAY 3 held on 12/3/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
308 TRANSCRIPT re: DIRECT EXAMINATION OF CHRISTINA MARTIN DURING TRIAL − DAY 4 held on 12/4/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
309 TRANSCRIPT re: DIRECT EXAMINATION OF CHRISTINA MARTIN DURING TRIAL − DAY 7 held on 12/9/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)

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01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/20/2015

310 TRANSCRIPT re: CROSS EXAMINATION OF JANE BURSTAIN DURING TRIAL − DAY 9 held on 12/11/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
311 TRANSCRIPT re: CROSS EXAMINATION OF JUDY BOWMAN DURING TRIAL − DAY 7 held on 12/8/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
312 TRANSCRIPT re: CROSS EXAMINATION OF CAMILLE GILLIAM DURING TRIAL − DAY 7 held on 12/8/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
313 TRANSCRIPT re: CROSS AND RECROSS EXAMINATION OF GEORGE CANNATA DURING TRIAL − DAY 7 held on 12/8/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
314 TRANSCRIPT re: CROSS EXAMINATION OF JENNY HINSON DURING TRIAL − DAY 7 held on 12/9/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
315 TRANSCRIPT re: CROSS EXAMINATION OF GAIL GONZALEZ DURING TRIAL − DAY 7 held on 12/9/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
316 TRANSCRIPT re: CROSS EXAMINATION OF KAYSIE REINHARDT DURING TRIAL − DAY 7 held on 12/9/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
317 TRANSCRIPT re: CROSS EXAMINATION OF FRIANITA WILSON DURING TRIAL − DAY 8 held on 12/10/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
318 TRANSCRIPT re: CROSS EXAMINATION OF CHRISTINE MALDONADO DURING TRIAL − DAY 8 held on 12/10/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
319 TRANSCRIPT re: CROSS EXAMINATION OF LINDA MC NALL DURING TRIAL − DAY 8 held on 12/10/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
320 TRANSCRIPT re: CROSS AND RECROSS EXAMINATION OF PAT WILSON DURING TRIAL − DAY 9 held on 12/11/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 4/16/2015., filed. (thudson, ) (Entered: 01/16/2015)
321 Notice of Filing of Official Transcript as to 315 Transcript, 316 Transcript, 312 Transcript, 314 Transcript, 318 Transcript, 311 Transcript, 309 Transcript, 320 Transcript, 319 Transcript, 313 Transcript, 317 Transcript, 308 Transcript, 307 Transcript, 310 Transcript,. Party notified, filed. (vrios, 2) (Entered: 01/20/2015)

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01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/28/2015 01/30/2015 02/02/2015 02/03/2015 02/04/2015

322 TRANSCRIPT re: TRIAL − DAY 1 held on 12/1/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
323 TRANSCRIPT re: TRIAL − DAY 2 held on 12/2/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
324 TRANSCRIPT re: TRIAL − DAY 3 held on 12/3/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
325 TRANSCRIPT re: TRIAL − DAY 4 held on 12/4/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
326 TRANSCRIPT re: TRIAL − DAY 5 held on 12/5/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
327 TRANSCRIPT re: TRIAL − DAY 6 held on 12/8/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
328 TRANSCRIPT re: TRIAL − DAY 7 held on 12/9/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
329 TRANSCRIPT re: TRIAL − DAY 8 held on 12/10/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
330 TRANSCRIPT re: TRIAL − DAY 9 held on 12/11/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
331 TRANSCRIPT re: TRIAL − DAY 10 held on 12/12/14 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party MARC RIETVELT Release of Transcript Restriction set for 4/27/2015., filed. (thudson, ) (Entered: 01/27/2015)
332 Notice of Filing of Official Transcript as to 326 Transcript, 324 Transcript, 329 Transcript, 331 Transcript, 330 Transcript, 322 Transcript, 323 Transcript, 327 Transcript, 328 Transcript, 325 Transcript. Party notified, filed. (vrios, 2) (Entered: 01/28/2015)
333 Joint MOTION for Extension of Time to File Post−Trial Briefing by A.M., A.R., C.H., H.V., J.S., M.D., S.A., Z.H., filed. Motion Docket Date 2/20/2015. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 01/30/2015)
334 ORDER granting 333 Motion for Extension of Time.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 02/02/2015)
335 NOTICE of Setting. Parties notified. Status Conference set for 2/4/2015 at 11:30 AM by Conference Call before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 02/03/2015)
336 ORDER (Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 02/04/2015)

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Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 2/4/2015. Court discusses with attorneys Deft. Ex 120. Exhibit to be re−organized and submitted in two weeks. Some documents may have to added; Court required a certification that Deft. Ex 120 is complete and that the parties are in agreement. Appearances: R Paul Yetter, Christina Wilson, Thomas A Albright, Marc Rietvelt.(Digital # 11:26 − 11:30; 11:42 − 11:50)(ERO:A. Rodriguez), filed.(lsmith, 2) (Entered: 02/04/2015)
337 EXHIBITS by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Exhibit PX2, # 2 Exhibit PX18, # 3 Exhibit PX35, # 4 Exhibit PX96, # 5 Exhibit PX565, # 6 Exhibit DX17, # 7 Exhibit DX18, # 8 Exhibit DX21, # 9 Exhibit DX34, # 10 Exhibit DX38, # 11 Exhibit DX42, # 12 Exhibit DX58, # 13 Exhibit DX59, # 14 Exhibit DX60, # 15 Exhibit DX71, # 16 Exhibit DX111, # 17 Exhibit DX116, # 18 Exhibit DX122−A, # 19 Exhibit DX129, # 20 Exhibit DX131, # 21 Exhibit DX131−A, # 22 Exhibit DX136, # 23 Exhibit DX137, # 24 Exhibit DX142, # 25 Exhibit DX143, # 26 Exhibit DX146, # 27 Exhibit DX147, # 28 Exhibit DX167, # 29 Exhibit DX169, # 30 Exhibit DX172, # 31 Exhibit DX183, # 32 Exhibit DX198, # 33 Exhibit DX249, # 34 Exhibit DX258, # 35 Exhibit DX268)(Wilson, Christina) (Entered: 02/11/2015)
338 EXHIBITS by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Exhibit PX1117, # 2 Exhibit PX1118, # 3 Exhibit PX1129, # 4 Exhibit PX1133, # 5 Exhibit PX1134, # 6 Exhibit PX1143, # 7 Exhibit PX1145, # 8 Exhibit PX1150, # 9 Exhibit PX1151, # 10 Exhibit PX1152, # 11 Exhibit PX1164, # 12 Exhibit PX1166, # 13 Exhibit PX1248, # 14 Exhibit PX1271, # 15 Exhibit PX1273, # 16 Exhibit PX1277, # 17 Exhibit PX1282, # 18 Exhibit PX1286, # 19 Exhibit PX1649, # 20 Exhibit PX1711, # 21 Exhibit PX1825, # 22 Exhibit PX1837, # 23 Exhibit PX1872, # 24 Exhibit PX1880, # 25 Exhibit PX1964, # 26 Exhibit PX1966, # 27 Exhibit PX2128, # 28 Exhibit PX2129, # 29 Exhibit PX2170, # 30 Exhibit PX2172, # 31 Exhibit PX2173, # 32 Exhibit PX2174, # 33 Exhibit PX2175, # 34 Exhibit PX2176)(Luciano, Adriana) (Entered: 02/11/2015)
339 EXHIBITS by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Exhibit PX566, # 2 Exhibit PX584, # 3 Exhibit PX608, # 4 Exhibit PX640, # 5 Exhibit PX641, # 6 Exhibit PX650, # 7 Exhibit PX656, # 8 Exhibit PX666, # 9 Exhibit PX687, # 10 Exhibit PX721, # 11 Exhibit PX724, # 12 Exhibit PX811, # 13 Exhibit PX844, # 14 Exhibit PX859, # 15 Exhibit PX877, # 16 Exhibit PX889, # 17 Exhibit PX894, # 18 Exhibit PX898, # 19 Exhibit PX902, # 20 Exhibit PX922, # 21 Exhibit PX926, # 22 Exhibit PX939, # 23 Exhibit PX956, # 24 Exhibit PX969, # 25 Exhibit PX978, # 26 Exhibit PX1004, # 27 Exhibit PX1026, # 28 Exhibit PX1065, # 29 Exhibit PX1074, # 30 Exhibit PX1080, # 31 Exhibit PX1091, # 32 Exhibit PX1094, # 33 Exhibit PX1111, # 34 Exhibit PX1116, # 35 Exhibit PX567)(Rosenthal, Joshua) (Entered: 02/11/2015)
340 EXHIBITS by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Exhibit PX32, # 2 Exhibit PX937, # 3 Exhibit PX1095, # 4 Exhibit PX1864, # 5 Exhibit PX1871, # 6 Exhibit PX1877, # 7 Exhibit PX1889, # 8 Exhibit PX1937, # 9 Exhibit PX2021, # 10 Exhibit PX2037, # 11 Exhibit PX2115, # 12 Exhibit DX252)(Wilson, Christina) (Entered: 02/12/2015)
341 EXHIBITS by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Exhibit DX97, # 2 Exhibit DX119, # 3 Exhibit DX223, # 4 Exhibit DX234, # 5 Exhibit DX250, # 6 Exhibit PX41, # 7 Exhibit PX50, # 8 Exhibit PX52, # 9 Exhibit PX67, # 10 Exhibit PX84, # 11 Exhibit PX86, # 12 Exhibit PX631, # 13 Exhibit PX632, # 14 Exhibit PX878, # 15 Exhibit PX885, # 16 Exhibit PX973, # 17 Exhibit PX1962, # 18 Exhibit PX1988, # 19 Exhibit PX1993, pt. 1, # 20 Exhibit PX1993, pt. 2, # 21 Exhibit PX1995, # 22 Exhibit PX2114)(Rosenthal, Joshua) (Entered: 02/12/2015)
342 EXHIBITS by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Exhibit PX2159)(Luciano, Adriana) (Entered: 02/13/2015)
343 Status update letter regarding DX120 by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed.(Yetter, R) (Entered: 02/13/2015)
344 Proposed Findings of Fact by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed.(Wilson, Christina) (Entered: 02/13/2015)

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02/13/2015 02/17/2015 02/18/2015 03/25/2015 03/25/2015
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03/26/2015
03/26/2015
03/26/2015
03/27/2015

345 POST−TRIAL BRIEF by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed.(Wilson, Christina) (Entered: 02/13/2015)
346 RESPONSE to 343 Document Letter Response to Status Update Letter Regarding DX120, filed by Kyle Janek, Rick Perry, John J Specia, Jr. (Rietvelt, Marc) (Entered: 02/17/2015)
***Parties were notified that preparation of DX120 as Mr. Yetter's letter proposed was approved with the proviso that the opposing side has the opportunity to review and approve DX120/lrs (lsmith, 2) (Entered: 02/18/2015)
347 Unopposed MOTION to Seal Supplemented Defendants' Exhibit 120 by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. Motion Docket Date 4/15/2015. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 03/25/2015)
***Attorneys Lowry, Albright, Yetter, and Rietvelt notified that email communications addressed the the Court are improper communications. All communication should be done in pleading form. Pleadings should be signed by attorneys of record, and not by paralegals. Additionally, permission of the Court must be obtained before there are any supplements/substitution of exhibits in the case/lrs (lsmith, 2) (Entered: 03/25/2015)
348 NOTICE of Submission of Corrected Version of Defendants Exhibit 120 [DX120] by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. (Yetter, R) (Entered: 03/25/2015)
349 DECLARATION of Thomas Albright, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit)(Albright, Thomas) (Entered: 03/26/2015)
350 DECLARATION of Thomas Albright, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit)(Albright, Thomas) (Entered: 03/26/2015)
351 DECLARATION of Thomas Albright, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit)(Albright, Thomas) (Entered: 03/26/2015)
352 DECLARATION of Thomas Albright, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Errata, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Errata, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit)(Albright, Thomas) (Entered: 03/26/2015)
353 DECLARATION of Thomas A. Albright, filed. (Attachments: # 1 Exhibit DX 00003 Part 1 of 2, # 2 Exhibit DX 00003 Part 2 of 2, # 3 Exhibit DX 00007 Part 1 of 2, # 4 Exhibit DX 00007 Part 2 of 2, # 5 Exhibit DX 00015 Part 1 of 2, # 6 Exhibit DX 00015 Part 2 of 2, # 7 Exhibit DX 00031 Part 1 of 2, # 8 Exhibit DX 00031 Part 2 of 2, # 9 Exhibit DX 00032 Part 1 of 2, # 10 Exhibit DX 00032 Part 2 of 2, # 11 Exhibit DX 00033 Part 1 of 2, # 12 Exhibit DX 00033 Part 2 of 2, # 13 Exhibit DX 00043 Part 1 of 3, # 14 Exhibit DX 00043 Part 2 of 3, # 15 Exhibit DX 00043 Part 3 of 3, # 16 Exhibit DX 00076 Part 1 of 3, # 17 Exhibit DX 00076 Part 2 of 3, # 18 Exhibit DX 00076 Part 3 of 3, # 19 Exhibit DX 00077 Part 1 of 3, # 20 Exhibit DX 00077 Part 2 of 3, # 21 Exhibit DX 00077 Part 3 of 3, # 22 Exhibit DX 00097 Part 1 of 2, # 23 Exhibit DX

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03/27/2015
03/27/2015 03/30/2015 03/31/2015 03/31/2015
03/31/2015 03/31/2015 03/31/2015 04/09/2015 04/09/2015 05/07/2015
05/20/2015 05/21/2015

00097 Part 2 of 2, # 24 Exhibit DX 00098 Part 1 of 2, # 25 Exhibit DX 00098 Part 2 of 2, # 26 Exhibit DX 00107 Part 1 of 3, # 27 Exhibit DX 00107 Part 2 of 3, # 28 Exhibit DX 00107 Part 3 of 3, # 29 Exhibit DX 00109 Part 1 of 5, # 30 Exhibit DX 00109 Part 2 of 5, # 31 Exhibit DX 00109 Part 3 of 5, # 32 Exhibit DX 00109 Part 4 of 5, # 33 Exhibit DX 00109 Part 5 of 5, # 34 Exhibit DX 00119 Part 1 of 2, # 35 Exhibit DX 00119 Part 2 of 2)(Albright, Thomas) (Entered: 03/27/2015)
354 DECLARATION of Thomas A. Albright, filed. (Attachments: # 1 Exhibit DX 00108 Part 1 of 19, # 2 Exhibit DX 00108 Part 2 of 19, # 3 Exhibit DX 00108 Part 3 of 19, # 4 Exhibit DX 00108 Part 4 of 19, # 5 Exhibit DX 00108 Part 5 of 19, # 6 Exhibit DX 00108 Part 6 of 19, # 7 Exhibit DX 00108 Part 7 of 19, # 8 Exhibit DX 00108 Part 8 of 19, # 9 Exhibit DX 00108 Part 9 of 19, # 10 Exhibit DX 00108 Part 10 of 19, # 11 Exhibit DX 00108 Part 11 of 19, # 12 Exhibit DX 00108 Part 12 of 19, # 13 Exhibit DX 00108 Part 13 of 19, # 14 Exhibit DX 00108 Part 14 of 19, # 15 Exhibit DX 00108 Part 15 of 19, # 16 Exhibit DX 00108 Part 16 of 19, # 17 Exhibit DX 00108 Part 17 of 19, # 18 Exhibit DX 00108 Part 18 of 19, # 19 Exhibit DX 00108 Part 19 of 19, # 20 Exhibit DX 00124−A Part 1 of 2, # 21 Exhibit DX 00124−A Part 2 of 2, # 22 Exhibit DX 00168, # 23 Exhibit DX 00184, # 24 Exhibit DX 00211 Part 1 of 2, # 25 Exhibit DX 00211 Part 2 of 2, # 26 Exhibit DX 00222 Part 1 of 2, # 27 Exhibit DX 00222 Part 2 of 2, # 28 Exhibit DX 00234 Part 1 of 2, # 29 Exhibit DX 00234 Part 2 of 2, # 30 Exhibit DX 00250 Part 1 of 3, # 31 Exhibit DX 00250 Part 2 of 3, # 32 Exhibit DX 00250 Part 3 of 3, # 33 Exhibit DX 00251)(Albright, Thomas) (Entered: 03/27/2015)
355 Sealed Event, filed. (With attachments) (Entered: 03/27/2015)
356 DECLARATION of Thomas A. Albright, filed. (Attachments: # 1 Exhibit PX1873)(Albright, Thomas) (Entered: 03/30/2015)
357 NOTICE of Setting. Parties notified. Closing Arguments set for 5/7/2015 at 10:00 AM in Dallas, Texas, Courtroom #1351, before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 03/31/2015)
358 Unopposed MOTION to Substitute Corrected Version of Defendants Exhibit 120, Unopposed MOTION to Seal Corrected Version of Defendants' Exhibit 120( Motion Docket Date 4/21/2015.) by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Attachments: # 1 Proposed Order Granting Pls' Unopposed Motion to Substitute and Seal DX120)(Wilson, Christina) (Entered: 03/31/2015)
359 POST−TRIAL BRIEF by Kyle Janek, Rick Perry, John J Specia, Jr, filed.(Albright, Thomas) (Entered: 03/31/2015)
360 Proposed Findings of Fact by Kyle Janek, Rick Perry, John J Specia, Jr, filed.(Albright, Thomas) (Entered: 03/31/2015)
361 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION TO SUBSTITUTE AND SEAL CORRECTED VERSION OF DEFENDANTS' EXHIBIT 120 granting 358 Motion to Substitute; granting 358 Motion to Seal.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 03/31/2015)
362 Unopposed MOTION for Continuance of Closing Arguments Setting by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 4/30/2015. (Yetter, R) (Entered: 04/09/2015)
363 ORDER denying 362 Motion for Continuance.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 04/09/2015)
Minute Entry for proceedings held before Judge Janis Graham Jack. Closing Arguments 8th day of NON−JURY TRIAL held on 5/7/2015. Held in Dallas, Tx, NDTX. (9:36 − 12:05). Court heard arguments from Plaintiffs and Defendents. Ruling taken under advisement. Appearances: Marcia Robinson Lowry, Thomas A Albright, Sara Bartosz.(Court Reporter: Pam Wilson), filed.(lsmith, 2) (Entered: 05/08/2015)
364 Opposed MOTION for Leave to File Post−Closing Argument Supplemental Brief by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. Motion Docket Date 6/10/2015. (Attachments: # 1 Supplement)(Wilson, Christina) (Entered: 05/20/2015)
365 ORDER granting 364 Motion for Leave to File.(Signed by Judge Janis Graham Jack) Parties notified.(dterrell, 2) (Entered: 05/21/2015)

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366 Supplemental BRIEF to Post−Closing Argument by A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed.(Wilson, Christina) (Entered: 05/22/2015)
367 RESPONSE to Plaintiffs' Post−Closing Argument Supplemental Brief, filed by Kyle Janek, Rick Perry, John J Specia, Jr. (Albright, Thomas) (Entered: 06/16/2015)
368 MEMORANDUM OPINION AND VERDICT OF THE COURT. Within 30 days of this Opinion, the Court will hold a hearing to select a Special Master.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 12/17/2015)
369 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 368 Memorandum and Opinion by Greg Abbott, Kyle Janek, John J Specia, Jr (Filing fee $ 505, receipt number 0541−15985924), filed.(Albright, Thomas) (Entered: 01/08/2016)
370 Opposed MOTION to Stay Injunction Pending Appeal by Greg Abbott, Kyle Janek, John J Specia, Jr, filed. Motion Docket Date 1/29/2016. (Attachments: # 1 Proposed Order)(Albright, Thomas) (Entered: 01/08/2016)
371 ORDER denying 370 Motion to Stay.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 01/11/2016)
373 Notice of Assignment of USCA No. 16−40023 re: 369 Notice of Appeal, filed.(mserpa, 2) (Entered: 01/14/2016)
372 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 369 Notice of Appeal. Fee status: Paid. Reporter(s): ERO, filed. (lcayce, 2) (Entered: 01/12/2016)
374 DKT13 TRANSCRIPT ORDER REQUEST by Thomas A. Albright. Transcript is already on file in Clerks office regarding none. (No transcript is needed). Court Reporter/Transcriber: Not Listed. This order form relates to the following: 369 Notice of Appeal, filed.(Albright, Thomas) (Entered: 01/15/2016)
375 ADVISORY by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Yetter, R) (Entered: 01/19/2016)
376 ADVISORY by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Exhibit Stephen CV, # 2 Exhibit Amberboy CV)(Albright, Thomas) (Entered: 01/19/2016)
377 ORDER. Hearing to appoint a Special Master set for 3/21/2016 at 09:00 AM before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 02/24/2016)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 369 Notice of Appeal USCA No. 16−40023, filed.(lcayce, 2) (Entered: 03/16/2016)
378 NOTICE by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Unredacted attachment, # 2 Unredacted attachment, # 3 Unredacted attachment, # 4 Unredacted attachment, # 5 Unredacted attachment, # 6 Unredacted attachment, # 7 Unredacted attachment, # 8 Unredacted attachment, # 9 Unredacted attachment, # 10 Unredacted attachment, # 11 Unredacted attachment, # 12 Unredacted attachment, # 13 Unredacted attachment, # 14 Unredacted attachment)(Albright, Thomas) Modified on 3/21/2016 (mserpa, 2). (PDFs sealed at the direction of the court.) (Entered: 03/21/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack to select Special Master. The panel of five candidates was sworn. Candidate #1, John Stephen, Candidate #2, Tina Amberboy, Candidate #3, Kevin Ryan, Candidate #4, Francis McGovern; Candidate #5 Deborah Fowler, all questioned by the Court, with time give to Plaintiff and Defendant to question each candidate. The parties were given time to confer. Each party made their proposals to the Court. Court appoints co−Special Masters Kevin Ryan and Francis McGovern. Fees are to be capped at $345.00 per hour. Parties are unopposed to any future hearings being by video conference. Hearing concluded. Proceedings held on 3/21/2016. Appearances:CSO: Jay Longley. R Paul Yetter, Marcia Robinson Lowry, Thomas A Albright.(Digital # 8:39 − 10:29; 10:46 − 11:50;1:13 − 2:10; 2:50 − 3:23)(ERO:Lori Cayce), filed.(lsmith, 2) (Entered: 03/21/2016)

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03/21/2016
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03/31/2016

379 APPOINTMENT ORDER. The Court appoints co−Special Masters Francis McGovern and Kevin Ryan pursuant to Federal Rule of Civil Procedure 53 and the Courts inherent powers. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 03/21/2016)
380 AFFIDAVIT of Francis E. McGovern, filed.(amartinez, 2) (Entered: 03/21/2016)
381 AFFIDAVIT of Kevin Ryan, filed.(amartinez, 2) (Entered: 03/21/2016)
382 Sealed Event, filed. (With attachments) (Entered: 03/21/2016)
383 NOTICE of Setting. Parties notified. (Thomas Albright, Paul Yetter, Kevin Ryan, Francis McGovern) Telephone Conference set for 3/28/2016 at 01:00 PM before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 03/22/2016)
384 AO 435 TRANSCRIPT REQUEST by Thomas A. Albright for Transcript of Hearing held on 3/21/2016 before Hon. Janis Graham Jack. 14−Day turnaround requested. Transcriber: Exceptional Reporting Services, filed. (jalvarez, 2) (Entered: 03/23/2016)
385 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Special Master Hearing on 3/21/2016 before Judge Jack. 14−Day turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) (Entered: 03/23/2016)
386 Letter from Shannon Pond re: the hold on "Group Home" placements, filed. (vrios, 2) (Entered: 03/25/2016)
387 TRANSCRIPT re: HEARING RE: SPECIAL MASTER held on 3/21/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party THOMAS A. ALBRIGHT Release of Transcript Restriction set for 6/27/2016., filed. (thudson, ) (Entered: 03/28/2016)
388 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Telephone Hearing on 3/28/2016 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Electronically forwarded to Exceptional Reporting on 3−29−16 by lc. (Entered: 03/28/2016)
389 Opposed MOTION to Revoke Order of Reference by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. Motion Docket Date 4/18/2016. (Attachments: # 1 Proposed Order)(Albright, Thomas) (Entered: 03/28/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 3/28/2016. Atty Yetter did not appear. Court discussed with parties the documents that she wants filed and available to Special Masters. Parties reported the progress they are making. Parties disclosed name of UT Professor Dr. Cynthia Osborne who is contributing in this field. Special Masters are to complete necessary forms to be able to file electronically. Hearing concluded (Court instructed case manager to tell Mr. Yetter to obtain a transcript of the phone call and to provide a good phone number for Ms. Lowrey). Appearances:Special Masters: Kevin Ryan and Francis McGovern. Thomas A Albright.(Digital # 1:07 − 1:17)(ERO:Lori Cayce), filed.(lsmith, 2) (Entered: 03/28/2016)
390 Notice of Filing of Official Transcript as to 387 Transcript,. Party notified, filed. (dterrell, 2) (Entered: 03/29/2016)
391 ORDER denying 389 Motion.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 03/29/2016)
392 Sealed Event, filed. (With attachments) (Entered: 03/29/2016)
393 TRANSCRIPT re: TELEPHONE CONFERENCE held on 3/28/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party R. PAUL YETTER Release of Transcript Restriction set for 6/28/2016., filed. (thudson, ) (Entered: 03/30/2016)
394 Notice of Filing of Official Transcript as to 393 Transcript. Party notified, filed. (dterrell, 2) (Entered: 03/31/2016)

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03/31/2016
04/04/2016 04/06/2016 04/06/2016
04/06/2016 04/07/2016 04/11/2016 04/14/2016 04/19/2016 04/20/2016 04/21/2016 04/28/2016 05/16/2016 05/18/2016 05/23/2016

395 Application to Judge Jack by Kevin Ryan, filed. (Attachments: # 1 Unredacted attachment Team Rates and Resp., # 2 Unredacted attachment Cervantes resume, # 3 Unredacted attachment Crummy resume, # 4 Unredacted attachment Eisenbud resume, # 5 Unredacted attachment Fowler resume, # 6 Unredacted attachment Greene resume, # 7 Unredacted attachment McDonald resume, # 8 Unredacted attachment McHale resume, # 9 Unredacted attachment Miranda resume, # 10 Unredacted attachment Murray resume, # 11 Unredacted attachment Taylor resume, # 12 Unredacted attachment Weber resume)(Ryan, Kevin) (Entered: 03/31/2016)
396 Letter by Greg Abbott, John J Specia, Jr, Chris Traylor, filed.(Albright, Thomas) (Entered: 04/04/2016)
397 NOTICE 1st Notice Regarding Special Master Developments by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. (Yetter, R) (Entered: 04/06/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 4/6/2016. Parties discuss request from the Legislature to meet with Special Master McGovern. Court feels this request is premature. Further, Special Master McGovern states that a meeting was held with Mr. Albright, Mr. Smith and Mr. Specia with the view of setting up a schedule for a work plan and a budget. Court asks that Special Master Ryan be advised to adjust the fees of the people that he has requested to help. Court feels the 4−6 people is sufficient. Court wants to keep fees in control as the Court is waiting to hear from the Request for Mandamus pending at the 5th Circuit Court of Appeals; however, at the same time, the Court does not want to hold up the process. Hearing concluded. Appearances:Special Master: Francis McGovern. R Paul Yetter, Thomas A Albright.(Digital # 2:28 − 2:46)(ERO:Lori Cayce), filed.(lsmith, 2) (Entered: 04/06/2016)
398 Email Communication to the Court from Special Master Kevin Ryan, filed.(lsmith, 2) (Entered: 04/07/2016)
*** The Court approves the attendees and the rates as set out in Special Master Kevin Ryan's email communication DE #398 (per JGJ/lrs)(lsmith, 2) (Entered: 04/07/2016)
399 Order of USCA re: 369 Notice of Appeal ; USCA No. 16−40023. Appeal dismissed as of April 5, 2016, pursuant to appellant's motion, filed.(mserpa, 2) (Entered: 04/11/2016)
400 Letter and Resume by Marilyn Mitten, filed.(lcayce, 2) (Entered: 04/15/2016)
401 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Telephone Conference on April 6, 2016 with Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Electronically forwarded to Exceptional Rep on 4−19−16 by lc. (Entered: 04/19/2016)
402 TRANSCRIPT re: TELEPHONIC HEARING held on 4/6/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party R. PAUL YETTER Release of Transcript Restriction set for 7/19/2016., filed. (thudson, ) (Entered: 04/20/2016)
403 Notice of Filing of Official Transcript as to 402 Transcript. Party notified, filed. (idavis, 2) (Entered: 04/21/2016)
404 Letter from Harry McPheron, filed. (lrivera, 2) (Entered: 04/28/2016)
405 Sealed Event, filed. (With attachments) Modified on 5/24/2016 (mserpa, 2). (Entered: 05/16/2016)
406 NOTICE of Setting. Parties notified. Telephone Conference set for 5/23/2016 at 10:00 AM (CST) before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 05/18/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 5/23/2016. Court heard Status Report from Special Masters. Guidance was sought on development of work plan details. Hearing concluded. Appearances:Francis McGovern/Special Master. R Paul Yetter, Thomas A Albright, Kevin M Ryan.(Digital # 9:55 − 10:35)(ERO:Lori Cayce), filed.(lsmith, 2) (Entered: 05/23/2016)

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05/23/2016
05/23/2016 05/24/2016 06/03/2016 06/06/2016 06/06/2016 06/08/2016 06/10/2016 06/13/2016
06/15/2016
06/15/2016 06/15/2016 06/20/2016
06/20/2016 06/21/2016

407 AO 435 TRANSCRIPT REQUEST by Thomas A. Albright for Transcript of Telephone Conference on 5/23/2016 before Judge Jack. 14−Day turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Albright, Thomas) Electronically forwarded to Exceptional Reporting on 5−23−16 by lc. (Entered: 05/23/2016)
409 Sealed Event, filed. (Entered: 06/02/2016)
408 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Telephone Conference on 05/23/2016 with Judge Janis Graham Jack. 14−Day turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) (Entered: 05/24/2016)
410 TRANSCRIPT re: TELEPHONE CONFERENCE held on 5/23/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party THOMAS A. ALBRIGHT Release of Transcript Restriction set for 9/1/2016., filed. (thudson, ) (Entered: 06/03/2016)
411 Notice of Filing of Official Transcript as to 410 Transcript. Party notified, filed. (dterrell, 2) (Entered: 06/06/2016)
419 Letter from Bruce Ogilvie re: Special Masters for Texas CPS Overhaul, filed. (lrivera, 2) (Entered: 06/23/2016)
412 Sealed Event, filed. (With attachments) (Entered: 06/08/2016)
413 Special Master Memo by Kevin Ryan, filed. (Attachments: # 1 Special Master Workplan for Judge Jack)(Ryan, Kevin) (Entered: 06/10/2016)
(Amended) Minute Entry for proceedings held before Judge Janis Graham Jack. Proceedings held on 6/13/2016. Court discusses the work that has been accomplished and what still has yet to be accomplished. After some initial miscommunication between the the Court and the Special Masters, a positive course correction was adopted. Special Masters will submit a revised Work Plan. Hearing concluded. Appearances:Frances McGovern/Special Master. R Paul Yetter, Thomas A Albright, Kevin M Ryan/Special Master(Digital # 10:35 − 11:10)(ERO:Sylvia Lopez), filed.(lsmith, 2) (Entered: 06/13/2016)
414 AO 435 TRANSCRIPT REQUEST by Andrew B. Stephens for Transcript of Telephone Conference on 6/13/2016 before Judge Jack. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. Electronically forwarded to Exceptional 6/16/16. slopez (Stephens, Andrew). (Entered: 06/15/2016)
415 Revised Work Plan 6−14−16 by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 06/15/2016)
416 NOTICE of Setting. Parties notified. Telephone Conference set for 6/20/2016 at 10:00 AM (CST) before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 06/15/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 6/20/2016. Court discusses with parties the Amended Work Plan. There are no specific objections; Court has not objections to the proposed salary for newest members of the team. The Court approves the Amended Work Plan. Parties discuss the possibility of regularly scheduled Status Conferences by telephone conference as often as every other week. Court has no objection. Possible schedule is to be discussed by the parties. Hearing concluded. Appearances:Sara Bartosz; Frances McGovern/Special Master. Marcia Robinson Lowry, Andrew Bowman Stephens, Thomas A Albright, Kevin M Ryan.(Digital # 9:58 − 10:02)(ERO:Sylvia Lopez), filed.(lsmith, 2) (Entered: 06/20/2016)
*** Court approves the Amended Work Plan ***/lrs (lsmith, 2) (Entered: 06/20/2016)
417 AO 435 TRANSCRIPT REQUEST by Andrew B. Stephens for Transcript of Telephone Conference on 6/20/2016 before Judge Jack. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. Electronically forwarded to Exceptional Reporting 6/22/16. slopez (Stephens, Andrew). (Entered: 06/21/2016)

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06/22/2016 06/22/2016 07/01/2016 07/07/2016 07/07/2016 07/08/2016
07/08/2016
07/08/2016 07/11/2016 07/11/2016 07/13/2016 07/17/2016 07/18/2016 07/18/2016

*** Special Master Kevin Ryan notified the Court that he is scheduled to speak with UT professor Dr. Osborne on Friday, June 24, 2016 at 12:30 p.m.***/lrs (lsmith, 2) (Entered: 06/22/2016)
418 NOTICE of Change of Address by Children's Rights, counsel for A.M., A.R., C.H., H.V., J.S., L.H., M.D., S.A., Z.H., filed. (Wilson, Christina) (Entered: 06/22/2016)
427 Sealed Event, filed. (Entered: 07/15/2016)
420 NOTICE of Setting. Parties notified. Telephone Conference set for 7/8/2016 at 10:15 AM before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 07/07/2016)
421 Order of USCA re: 369 Notice of Appeal ; USCA No. 16−40482. Petitioner's motion to stay any special−master proceedings arising from the Appointment Order pending the disposition of the petition is DENIED AS MOOT, filed. (Attachments: # 1 Letter)(dterrell, 2) (Entered: 07/08/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 7/8/2016. Special Masters report that they are reviewing exhibits, trial transcripts, and state documents. Mr. Ryan has conferred with Cynthia Osborne from University of Texas regarding workload methodology. Court instructs that Mr. Ryan is to pursue this with keeping Mr. Albright in the loop. If there are problems, further conferences/hearings will be held. Court heard discussion about possible assistance from Ms. Amberboy. Mr. Albright is to contact her to see if she has something to offer for the children of Texas, and then he is to confer with Mr. Ryan. If any problems arise, further conferences/hearings will be held. Special Masters are to meet with DFPS next week. Court suggests that both sides be in attendance when meetings are scheduled. Mr. Albright requests that the parties be allowed to discuss these issues and come up with a proposed protocol. Court allows proposed protocol to be submitted to Court for consideration. Hearing concluded. Appearances: R Paul Yetter, Thomas A Albright, Frances McGovern, Kevin M Ryan.(Digital # 10:10 − 10:28)(ERO:Lori Cayce), filed.(lsmith, 2) (Entered: 07/08/2016)
422 AO 435 TRANSCRIPT REQUEST by Thomas A. Albright for Transcript of Telephone Conference on 7/8/2016 before Judge Jack. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Albright, Thomas) Electronically forwarded to Exceptional Reporting on 7−8−16 by lc. (Entered: 07/08/2016)
423 AO 435 TRANSCRIPT REQUEST by Paul Yetter for Transcript of Telephone Conference on 7/8/2016 with Judge Jack. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) (Entered: 07/08/2016)
424 Sealed Event, filed. (With attachments) (Entered: 07/11/2016)
425 TRANSCRIPT re: Closing Arguments − Day 8 of Bench Trial held on 5/7/2015, in Dallas, Texas, NDTX, before Judge Janis Graham Jack. Court Reporter/Transcriber Pam Wilson. Release of Transcript Restriction set for 10/11/2016., filed. (lsmith, 2) (Entered: 07/12/2016)
426 Notice of Filing of Official Transcript as to 425 Transcript. Party notified, filed. (idavis, 2) (Entered: 07/13/2016)
428 TRANSCRIPT re: TELEPHONIC STATUS CONFERENCE held on 7/8/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party THOMAS A. ALBRIGHT Release of Transcript Restriction set for 10/17/2016., filed. (thudson, ) (Entered: 07/17/2016)
429 TRANSCRIPT re: TELEPHONE CONFERENCE held on 6/13/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party ANDREW B. STEPHENS Release of Transcript Restriction set for 10/17/2016., filed. (thudson, ) (Entered: 07/18/2016)
430 Notice of Filing of Official Transcript as to 429 Transcript, 428 Transcript,. Party notified, filed. (dterrell, 2) (Entered: 07/18/2016)

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07/19/2016 07/21/2016
07/21/2016
07/22/2016 07/22/2016 07/22/2016
07/22/2016 07/25/2016 07/29/2016 08/01/2016 08/05/2016 08/08/2016 08/12/2016 08/21/2016
08/22/2016 08/22/2016 08/26/2016 09/07/2016

431 NOTICE of Setting. Parties notified. Telephone Conference set for 7/21/2016 at 01:30 PM before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 07/19/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 7/21/2016. Special Masters reported on meeting with Commissioner Whittman and DFPS in which discussion of issues and goals here heard. Court stated that she still needs time study on both case workers and licensing positions (time it takes to investigate complaints). Courts has no opposition to special masters using Tina Amberboy or Cyntia Osborne as part of special master team. Court also wants time that is to be allotted to centralizing all data (records) for each child in the IMPACT MODERNIZATION system that is being looked into. Special Masters will be submitting an Advisory to the Court regarding agreement of the parties as to ex parte meetings. Special Masters request with no opposition from parties a meeting with the Court which is to be set on July 27, 2016. Hearing concluded. Appearances: R Paul Yetter, Thomas A Albright, Frances McGovern, Kevin M Ryan.(Digital # 1:25 − 2:05)(ERO:Lori Cayce), filed.(lsmith, 2) (Entered: 07/21/2016)
432 AO 435 TRANSCRIPT REQUEST by Thomas Albright for Transcript of Telephone Conference 7/21/2016 Judge Jack. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Albright, Thomas) (Entered: 07/21/2016)
433 ADVISORY by Greg Abbott, John J Specia, Jr, Chris Traylor, filed.(Albright, Thomas) (Entered: 07/22/2016)
434 MOTION for David A. Dodds to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 8/12/2016. (Attachments: # 1 Proposed Order)(Dodds, David) (Entered: 07/22/2016)
435 TRANSCRIPT re: TELEPHONE CONFERENCE held on 6/20/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party ANDREW B. STEPHENS Release of Transcript Restriction set for 10/20/2016., filed. (thudson, ) (Entered: 07/22/2016)
436 ORDER granting 434 Motion to Withdraw as Attorney. Attorney David Allen Dodds terminated.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 07/22/2016)
437 Notice of Filing of Official Transcript as to 435 Transcript. Party notified, filed. (dterrell, 2) (Entered: 07/25/2016)
438 Sealed Event, filed. (Entered: 08/01/2016)
440 Letter to The Court and paperback book re: foster care system by Shenandoah Chefalo, filed. (Attachments: # 1 Envelope)(lcayce, 2) (Entered: 08/09/2016)
439 Sealed Event, filed. (With attachments) (Entered: 08/05/2016)
441 Letter to The Court from James W. Bowen, president of Momentum Development Corporation, filed.(lcayce, 2) (Entered: 08/09/2016)
442 Sealed Event, filed. (Entered: 08/15/2016)
443 TRANSCRIPT re: TELEPHONE CONFERENCE held on 7/21/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party THOMAS ALBRIGHT Release of Transcript Restriction set for 11/21/2016., filed. (thudson, ) (Entered: 08/21/2016)
444 Notice of Filing of Official Transcript as to 443 Transcript. Party notified, filed. (idavis, 2) (Entered: 08/22/2016)
445 Letter and Booklet from Sharon Willis, Vice President and Founder of A World for Children, filed. (Attachments: # 1 Booklet)(lcayce, 2) (Entered: 08/30/2016)
446 Caseworker Information provided by Richard Jackson, President and CEO of SpeakWrite, filed.(lcayce, 2) (Entered: 08/30/2016)
447 MEMORANDUM by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 09/07/2016)

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09/07/2016 09/07/2016 09/08/2016 09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/12/2016 09/13/2016 09/13/2016 09/13/2016 09/13/2016 09/13/2016 09/13/2016

448 ORDER striking 447 Unobjected Motion for Continuation of Time for Special Masters' Report. (Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 09/07/2016)
449 MOTION for Extension of Time for filing Report of Special Masters by Francis McGovern, Kevin Ryan, filed. Motion Docket Date 9/28/2016. (Attachments: # 1 Proposed Order)(Ryan, Kevin) (Entered: 09/07/2016)
450 ORDER granting 449 Motion for Extension of Time. The Special Masters are directed to submit their report by November 4, 2016.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 09/08/2016)
451 MOTION for Adam Dembrow to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/3/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/12/2016)
452 MOTION for Adriana Teresa Luciano to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/3/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/12/2016)
453 MOTION for Jessica Polansky to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/3/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/12/2016)
454 MOTION for Melissa Cohen to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/3/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/12/2016)
455 MOTION for Patrick Almonrode to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/3/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/12/2016)
456 MOTION for Rachel Brodin Nili to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/3/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/12/2016)
457 MOTION for William Kapell to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/3/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/12/2016)
458 ORDER granting 457 Motion to Withdraw as Attorney. Attorney William Kapell terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 09/12/2016)
459 Sealed Event, filed. (With attachments) (Entered: 09/12/2016)
460 ORDER granting 451 Motion to Withdraw as Attorney. Attorney Adam Dembrow terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 09/13/2016)
461 ORDER granting 452 Motion to Withdraw as Attorney. Attorney Adriana Teresa Luciano terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 09/13/2016)
462 ORDER granting 453 Motion to Withdraw as Attorney. Attorney Jessica Polansky terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 09/13/2016)
463 ORDER granting 454 Motion to Withdraw as Attorney. Attorney Melissa Cohen terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 09/13/2016)
464 ORDER granting 455 Motion to Withdraw as Attorney. Attorney Patrick Almonrode terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 09/13/2016)
465 ORDER granting 456 Motion to Withdraw as Attorney. Attorney Rachel Brodin Nili terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 09/13/2016)

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09/16/2016 09/19/2016 09/19/2016 10/06/2016 11/02/2016 11/04/2016 11/08/2016
11/08/2016
11/08/2016 11/09/2016 11/09/2016 11/16/2016 11/17/2016
11/21/2016 11/21/2016 11/28/2016
11/28/2016
11/28/2016 12/06/2016 12/08/2016

466 MOTION for Sarah Russo to Withdraw as Attorney by A.M., D.I., J.S., K. E., M.D., S.A., Z.H., filed. Motion Docket Date 10/7/2016. (Attachments: # 1 Proposed Order)(Wilson, Christina) (Entered: 09/16/2016)
467 ORDER granting 466 Motion to Withdraw as Attorney. Attorney Sarah T Russo terminated.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 09/19/2016)
468 Sealed Event, filed. (With attachments) (Entered: 09/27/2016)
469 Sealed Event, filed. (With attachments) (Entered: 10/06/2016)
470 NOTICE of Setting. Parties notified. Telephone Conference set for 11/8/2016 at 09:00 AM CST before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 11/02/2016)
471 DOCUMENT by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 11/04/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 11/8/2016. Court discusses deadlines for objections and responses to the report filed by the Special Masters, with Interim Order to follow. Written order to follow. Appearances:Todd Disher; Jody Hughes. Barry F McNeil, R Paul Yetter, Thomas A Albright, Frances McGovern, Kevin M Ryan.(Digital # 9:00 − 9:12)(ERO:Lori Cayce), filed.(lsmith, 2) (Entered: 11/08/2016)
472 ORDER ESTABLISHING DEADLINES FOR PARTIES' OBJECTIONS TO SPECIAL MASTER RECOMMENDATIONS. Objections to Recommendations (DE 471) due by 11/21/2016 Responses to objections due by 12/1/2016.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, 2) (Entered: 11/08/2016)
473 Sealed Event, filed. (With attachments) (Entered: 11/08/2016)
474 NOTICE of Appearance by Joseph D. Hughes on behalf of Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Albright, Thomas) (Entered: 11/09/2016)
475 NOTICE of Appearance by Todd Lawrence Disher on behalf of Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Albright, Thomas) (Entered: 11/09/2016)
476 MOTION for Marc Rietvelt to Withdraw as Attorney by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. Motion Docket Date 12/7/2016. (Attachments: # 1 Proposed Order)(Rietvelt, Marc) (Entered: 11/16/2016)
477 ORDER granting 476 Motion to Withdraw as Attorney. Attorney Marc Rietvelt terminated is hereby withdrawn as counsel of record for Defendants in this matter.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 11/17/2016)
478 RESPONSE to 471 Document Special Master Recommendations, filed by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H.. (Yetter, R) (Entered: 11/21/2016)
479 OBJECTIONS to 471 Document Special Masters Recommendations, filed by Greg Abbott, John J Specia, Jr, Chris Traylor. (Albright, Thomas) (Entered: 11/21/2016)
480 Unopposed MOTION for Extension of Time Respond to Defendants' Objections to Special Master Recommendations by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 12/19/2016. (Yetter, R) (Entered: 11/28/2016)
481 ORDER granting 480 Unopposed Motion for Extension of Time Plaintiff's Response to Defendant's Objections to the Special Masters' Recommendations is due by 12/8/2016.(Signed by Judge Janis Graham Jack) Parties notified.(srussell, 2) (Entered: 11/28/2016)
483 Letter from Carol Cunningham, filed. (lrivera, 2) (Entered: 12/08/2016)
482 Sealed Event, filed. (With attachments) (Entered: 12/06/2016)
484 RESPONSE to 479 Objections to Special Master Recommendations, filed by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H.. (Attachments: # 1 Appendix Compilation of Citations to the Trial Record Regarding

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12/13/2016 12/14/2016 12/19/2016
12/21/2016
12/27/2016 12/27/2016 12/28/2016 12/28/2016 12/29/2016 01/03/2017 01/03/2017 01/04/2017 01/04/2017 01/04/2017
01/05/2017 01/06/2017 01/09/2017
01/11/2017 01/13/2017 01/16/2017
01/17/2017 01/27/2017

Special Master Recommendations)(Wilson, Christina) (Entered: 12/08/2016)
485 Document by Kevin Ryan, filed. (Attachments: # 1 document)(Ryan, Kevin) (Entered: 12/13/2016)
486 Sealed Event, filed. (Entered: 12/15/2016)
487 NOTICE of Setting. Parties notified. Telephone Conference set for 12/21/2016 at 10:00 AM CST before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 12/19/2016)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 12/21/2016. Court heard discussions and clarification on several points. Mr. Albright is to obtain confirmation on several issues for the Court. When he has determined time frame, he will call case manager and she will make a minute entry. Hearing concluded. Appearances:Todd Lawrence Disher; Joseph D. Hughes f/Attory General. R Paul Yetter, Thomas A Albright, Frances McGovern, Kevin M Ryan.(Digital # 9:55 − 10:39)(ERO:Genay Rogan), filed.(lsmith, 2) (Entered: 12/21/2016)
488 Fostering Health by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 12/27/2016)
489 ORDER CLARIFYING INJUNCTION. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 12/27/2016)
490 AMENDED ORDER CLARIFYING INJUNCTION. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 12/28/2016)
491 SECOND AMENDED ORDER CLARIFYING INJUNCTION. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 12/28/2016)
492 ADVISORY by Greg Abbott, John J Specia, Jr, Chris Traylor, filed.(Albright, Thomas) (Entered: 12/29/2016)
493 ADVISORY by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 01/03/2017)
494 RESPONSE to 492 Advisory , filed by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., S.A., S.R., S.S., Z.H.. (Yetter, R) (Entered: 01/03/2017)
495 Sealed Event, filed. (With attachments) (Entered: 01/04/2017)
496 ADVISORY by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 01/04/2017)
497 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Phone Conference on 12/21/2016 with Judge Jack. 14−Day turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Electronically forwarded to Exceptional on 1−6−17 by gr. (Entered: 01/04/2017)
498 Sealed Event, filed. (Entered: 01/09/2017)
499 Sealed Event, filed. (Entered: 01/09/2017)
500 INTERIM ORDER REGARDING SPECIAL MASTERS' RECOMMENDATIONS. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 01/09/2017)
501 Sealed Event, filed. (With attachments) (Entered: 01/12/2017)
504 Sealed Event, filed. (Entered: 01/19/2017)
502 TRANSCRIPT re: TELEPHONE CONFERENCE held on 12/21/16 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party R. PAUL YETTER Release of Transcript Restriction set for 4/17/2017., filed. (thudson, ) (Entered: 01/16/2017)
503 Notice of Filing of Official Transcript as to 502 Transcript. Party notified, filed. (idavis, 2) (Entered: 01/17/2017)
505 DVD from Karen Wilson, filed. (Note: DVD not imaged and placed on shelf in Clerk's Office.)(mserpa, 2) (Entered: 01/27/2017)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 66 of 88

01/30/2017 01/31/2017 02/06/2017 02/08/2017 02/13/2017
02/14/2017 02/15/2017 02/16/2017 02/16/2017 02/16/2017 02/17/2017 02/24/2017
02/27/2017 03/03/2017 03/09/2017 03/15/2017 03/15/2017 03/16/2017
03/17/2017

506 Mail Returned Undeliverable as to attorney Ira Lustbader as to M.D. re: 503 Notice of Filing of Official Transcript, filed. (agarcia, 7) (Entered: 01/31/2017)
507 ADVISORY by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Unredacted attachment)(Albright, Thomas) (Entered: 01/31/2017)
508 NOTICE of Setting. Parties notified. Status Conference set for 3/16/2017 at 10:30 AM before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 02/06/2017)
509 Sealed Event, filed. (With attachments) (Entered: 02/08/2017)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 2/13/2017. Discussion of topics, logistics and possible location, of up−coming hearing. Hearing concluded. Appearances: R Paul Yetter, Thomas A Albright.(Digital # 2:55 − 3:28)(ERO:Jared Marks), filed.(lsmith, 2) (Entered: 02/13/2017)
513 Sealed Event, filed. (Entered: 02/16/2017)
510 OBJECTIONS TO SPECIAL MASTERS ENGAGEMENT OF EXPERT, filed by Greg Abbott, John J Specia, Jr, Chris Traylor. (Attachments: # 1 Unredacted attachment A − SOW)(Albright, Thomas) (Entered: 02/15/2017)
511 NOTICE of Setting. Parties notified. Telephone Conference set for 2/17/2017 at 01:00 PM before Judge Janis Graham Jack, filed. (lsmith, 2) (Entered: 02/16/2017)
*** CONFERENCE CALL SET FOR 2/17/2017 HAS BEEN CANCELLED/lrs (lsmith, 2) (Entered: 02/16/2017)
512 ORDER Striking Pleading re: 510 Objections. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 02/16/2017)
514 ADVISORY by Greg Abbott, John J Specia, Jr, Chris Traylor, filed.(Albright, Thomas) (Entered: 02/17/2017)
515 Opposed MOTION to Reinstate Defendants' Objections to Special Masters' Engagement of Expert by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. Motion Docket Date 3/17/2017. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Albright, Thomas) (Entered: 02/24/2017)
516 ORDER denying 515 Defendants Motion to Reinstate Defendants Objections to Special Masters Engagement of Expert.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, 2) (Entered: 02/27/2017)
517 Mail Returned Undeliverable as to attorney Ira Lustbader as to M.D. re: 511 Notice of Setting, filed. (ShoshanaArnow, ) (Entered: 03/03/2017)
518 Sealed Event, filed. (With attachments) (Entered: 03/09/2017)
519 Sealed Event, filed. (Entered: 03/15/2017)
***Set/Reset Deadlines/Hearings: Status Conference set for 3/16/2017 at 09:00 AM before Judge Janis Graham Jack (TIME CHANGE ONLY) (lsmith, 2) (Entered: 03/15/2017)
520 Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 3/16/2017. Court's Witness #1, H. LL. Whitman, Commissioner. Court hears discussion is responses of the parties to the questions and inquiries of the Special Masters as it relates to policies and procedures. Court discusses availability of educational, medical, dental, and mental health records. Parties agree that in−person Status Conferences are helpful. Other conferences will be set in June, or ealier, if needed. Hearingconcluded. Appearances:Lonny Hoffman f/Paul Yetter; Todd Disher; Lish Black, Trevor Woodruff, Audrey Carmical, H. L. Whitman. Marcia Robinson Lowry, Thomas A Albright, Michael Kenneth Bartosz, Frances McGovern, Kevin M Ryan.(Digital # 8:54 − 11:33)(ERO:Jared Marks), filed.(lsmith, 2) (Entered: 03/16/2017)
521 ORDER: DFPS is ORDERED to provide complete responses to the Special Masters request numbers 1, 2, 3, and 4 by 12:00 p.m. on Friday March 17, 2017. DFPS is further ORDERED to provide a complete response to the Special Masters request

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 67 of 88

03/28/2017 03/29/2017 04/07/2017 05/10/2017 05/15/2017 05/17/2017
05/18/2017
05/18/2017
05/30/2017
06/09/2017 06/20/2017 06/21/2017 07/10/2017 07/20/2017 08/07/2017 08/18/2017 09/14/2017 09/22/2017 10/03/2017 11/01/2017 11/07/2017 11/13/2017 11/21/2017 11/21/2017

number 5 by 12:00 p.m. on Friday March 24, 2017; Additionally, DFPS agreed to provide complete responses to the Special Masters from its IT Department concerning the modernization of the IMPACT system, including but not limited to the capacity to include all the childrens records in one system, by 12:00 p.m. on Friday March 24, 2017. (Signed by Judge Janis Graham Jack) Parties notified.(vrios, 2) (Entered: 03/17/2017)
523 Letter from James M. Rose re: Foster Care Ideas, filed. (mserpa, 2) (Entered: 03/29/2017)
522 Mail Returned Undeliverable as to M Vasquez re: 521 Order, filed. (ssilva, 7) (Entered: 03/29/2017)
524 Sealed Event, filed. (With attachments) (Entered: 04/07/2017)
525 Sealed Event, filed. (With attachments) (Entered: 05/10/2017)
526 Sealed Event, filed. (Entered: 05/16/2017)
527 MOTION to Modify ( Motion Docket Date 6/7/2017.), MOTION Right to counsel by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Albright, Thomas) (Entered: 05/17/2017)
528 ORDER granting 527 Motion to Modify. It is ORDERED that counsel or a representative for Defendant DFPS are permitted to attend any and all interviews of its own employees by CFPF.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 05/18/2017)
Minute Entry for Conference Call held before Judge Janis Graham Jack. Proceedings held on 5/18/2017. Court heard discussion of issues being worked on. Parties agree there would be no need for further calls until after the legislature completes any special sessions. Hearing concluded. Appearances:Adurey Carmichael/DFPS. R Paul Yetter, Thomas A Albright.(Digital: 11:13 − 11:33)(ERO:Jared Marks), filed.(lsmith, 2) (Entered: 05/18/2017)
529 Mail Returned Undeliverable as to Olivia Sohmer as attorney for A.M. re: 528 Order on Motion to Modify, Order on Motion for Miscellaneous Relief, filed. (smurdock, 4) (Entered: 05/30/2017)
530 Sealed Event, filed. (With attachments) (Entered: 06/09/2017)
532 Sealed Event, filed. (Entered: 06/27/2017)
531 Sealed Event, filed. (Entered: 06/21/2017)
533 Sealed Event, filed. (With attachments) (Entered: 07/10/2017)
534 Sealed Event, filed. (Entered: 07/20/2017)
535 Sealed Event, filed. (Entered: 08/07/2017)
536 Sealed Event, filed. (Entered: 08/18/2017)
537 Sealed Event, filed. (Entered: 09/14/2017)
538 Letter from Christy Petty re: CPS, filed. (jmarks, 2) (Entered: 09/26/2017)
539 Sealed Event, filed. (Entered: 10/03/2017)
541 Sealed Event, filed. (With attachments) (Entered: 11/07/2017)
540 Sealed Event, filed. (Entered: 11/07/2017)
542 Sealed Event, filed. (Entered: 11/13/2017)
543 Order Referring Case to Mediation. (Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 11/21/2017)
544 FIRST AMENDED AGREED ORDER FOR REFERRAL TO MEDIATION. (Signed by Judge Janis Graham Jack) Parties notified.(vrios, 2) (Entered: 11/22/2017)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 68 of 88

11/30/2017
12/01/2017
12/04/2017 12/04/2017 12/06/2017 12/06/2017 12/06/2017 12/08/2017 12/08/2017 12/13/2017 12/15/2017 12/19/2017
12/19/2017 12/19/2017 01/08/2018 01/19/2018 01/19/2018 01/19/2018 01/19/2018

545 Minute Entry for proceedings held before Judge Janis Graham Jack. Courts discusses Mediation Order, and Appointment of co−Monitors. Mr. Ryan is to remain as a Monitor and Court suggests Deborah Fowler. Mr. Yetter agrees, and Mr. Albright needs to consult client. After consultation, Mr. Albright will inform case manager of his position. Mr. Ryan is close to submitting Final Report. Parties will have 15 days to object. If there is a Final Order entered, parties will continue to Mediate. Any Settlement would be subject to Court's approval. Hearing concluded.TELEPHONE CONFERENCE held on 11/30/2017. Appearances: R Paul Yetter, Thomas A Albright.(Digital # 9:28 − 9:38)(ERO:Jared Marks), filed.(lsmith, 2) (Entered: 11/30/2017)
***Atty Thomas Albright notified the Case Manager that after having conferred with his clients, and without waiving his objection to having any monitor at all, they have no objection to Ms Fowler serving as co−Monitor., filed. (lsmith, 2) (Entered: 12/01/2017)
546 Appendix by Kevin Ryan, filed. (Attachments: # 1 Appendix C)(Ryan, Kevin) (Entered: 12/04/2017)
547 Mail Returned Undeliverable as to M.D. re: 543 Order Referring Case to Mediation, filed. (dgonzalez, 5) (Entered: 12/04/2017)
548 Sealed Event, filed. (Entered: 12/06/2017)
549 Sealed Event, filed. (Entered: 12/06/2017)
550 Sealed Event, filed. (Entered: 12/06/2017)
551 Mail Returned Undeliverable as to M Vasquez re: 543 Order Referring Case to Mediation, filed. (SandraSilva, 7) (Entered: 12/08/2017)
552 Mail Returned Undeliverable as to M Vasquez re: 544 Order, filed. (SandraSilva, 7) (Entered: 12/08/2017)
553 Sealed Event, filed. (Additional attachment(s) added on 12/17/2019: # 1 Redacted Letter) (jmarks, 2). (Entered: 12/14/2017)
554 BRIEF Support of Plaintiffs by Texas Lawyers for Children, filed.(Kutnick, Brett) (Entered: 12/15/2017)
555 RESPONSE to 546 Document Special Master Implementation Plan, filed by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H.. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D, # 5 Appendix E, # 6 Appendix F, # 7 Appendix G, # 8 Appendix H, # 9 Appendix I, # 10 Appendix J, # 11 Appendix K, # 12 Appendix L, # 13 Appendix M, # 14 Appendix N)(Yetter, R) (Entered: 12/19/2017)
556 OBJECTIONS to 546 Document , filed by Greg Abbott. (Attachments: # 1 Exhibit Attachment A − Declaration of Trevor Woodruff)(Albright, Thomas) (Entered: 12/19/2017)
557 Supplemental EXHIBITS re: 556 Objections by Greg Abbott, filed.(Albright, Thomas) (Entered: 12/19/2017)
558 Sealed Event, filed. (Entered: 01/08/2018)
559 FINAL ORDER. The Court ADOPTS in part the Special Masters Implementation Plan 546 . (Signed by Judge Janis Graham Jack) Parties notified.(sylopez, 2) (Entered: 01/19/2018)
560 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 559 Order by Greg Abbott, John J Specia, Jr, Chris Traylor (Filing fee $ 505, receipt number 0541−19479006), filed. (Albright, Thomas) (Entered: 01/19/2018)
561 Opposed MOTION to Stay Injunction Pending Appeal by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. Motion Docket Date 2/9/2018. (Attachments: # 1 Exhibit Hinson Declaration, # 2 Proposed Order)(Albright, Thomas) (Entered: 01/19/2018)
564 Order of USCA re: − PER CURIAM − 560 Notice of Appeal ; USCA No. 18−40057. It is ordered that the appellants' motion for immediate administrative stay is granted. It

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 69 of 88

01/20/2018
01/20/2018
01/22/2018
01/22/2018 01/22/2018 01/30/2018 01/31/2018
01/31/2018 01/31/2018 01/31/2018
02/01/2018 02/05/2018 02/05/2018 02/07/2018 02/08/2018 02/09/2018

is further ordered that the appellants' unopposed motion to exceed the word count limit for their emergency stay motion is granted, filed.(dterrell, 2) (Additional attachment(s) added on 1/22/2018: # 1 USCA Letter) (dterrell, 2). (Entered: 01/22/2018)
562 RESPONSE in Opposition to 561 Opposed MOTION to Stay Injunction Pending Appeal, filed by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H.. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9, # 10 Appendix 10, # 11 Appendix 11, # 12 Appendix 12, # 13 Appendix 13)(Yetter, R) (Entered: 01/20/2018)
563 Corrected RESPONSE in Opposition to 561 Opposed MOTION to Stay Injunction Pending Appeal, filed by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H.. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9, # 10 Appendix 10, # 11 Appendix 11, # 12 Appendix 12, # 13 Appendix 13)(Yetter, R) (Entered: 01/20/2018)
565 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 560 Notice of Appeal. Fee status: Paid. Reporter(s): ERO, filed. (Attachments: # 1 Notice of Appeal) (AmandaZepeda, 2) (Entered: 01/22/2018)
Appeal Review Notes re: 560 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid or an ifp motion has been granted., filed.(AmandaZepeda, 2) (Entered: 01/22/2018)
Appeal Review Notes re: 560 Notice of Appeal. Fee status: Paid. Hearings were held in the case. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal., filed.(amireles, 2) (Entered: 01/22/2018)
571 Sealed Event, filed. (Entered: 02/06/2018)
566 Unopposed MOTION for Extension of Time To File Claim for Attorney's Fees and Expenses. by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 2/21/2018. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 01/31/2018)
567 ORDER granting 566 Motion for Extension of Time. Plaintiffs' Claim for Attorneys Fees and Expenses is due April 3, 2018. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 01/31/2018)
568 DESIGNATION of Record on Appeal by Greg Abbott, filed.(Albright, Thomas) (Entered: 01/31/2018)
569 DKT13 TRANSCRIPT ORDER REQUEST by Thomas A. Albright. Transcript is already on file in Clerks office regarding Transcript already on file. (No transcript is needed). Court Reporter/Transcriber: Contract Court Reporter. This order form relates to the following: 560 Notice of Appeal, filed.(Albright, Thomas) (Entered: 01/31/2018)
570 DESIGNATION of Record on Appeal by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed.(Wilson, Christina) (Entered: 02/01/2018)
572 Mail Returned Undeliverable as Olivia Sohmer for Children's Rights: 565 Clerk's Notice of Filing of an Appeal, filed. (mmapps, 4) (Entered: 02/06/2018)
573 Mail Returned Undeliverable as to M Vasquez re: 559 Order, filed. (dgonzalez, 5) (Entered: 02/06/2018)
574 Mail Returned Undeliverable as to Olivia Sohmer re: 559 Order, filed. (mxperez, 5) (Entered: 02/07/2018)
575 Sealed Event, filed. (Entered: 02/08/2018)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 560 Notice of Appeal USCA No. 18−40057, filed.(amireles, 2) (Entered: 02/12/2018)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 70 of 88

02/12/2018
02/14/2018 02/21/2018 02/26/2018 03/13/2018 03/13/2018 03/13/2018 03/14/2018 03/16/2018 03/20/2018 03/21/2018
03/29/2018 03/29/2018 04/02/2018 04/05/2018 04/05/2018 04/10/2018
04/10/2018
04/16/2018

Electronic Access to Record on Appeal Provided re: 560 Notice of Appeal to D. Goldman, C. Ward, J. Hughes, R. Yetter, B. McNeil, R. Simpson, P. Lionberger, L. Hoffman, S. Dixon, S. Keller, M. Lowry, S. Bartosz, C. Remlin Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−40057), filed.(amireles, 2) (Entered: 02/12/2018)
576 Sealed Event, filed. (Additional attachment(s) added on 12/17/2019: # 1 Redacted Letter) (jmarks, 2). (Entered: 02/15/2018)
577 Sealed Event, filed. (Entered: 02/21/2018)
578 Sealed Event, filed. (Additional attachment(s) added on 12/16/2019: # 1 Redacted Letter) (jmarks, 2). (Entered: 03/05/2018)
580 Mail Returned Undeliverable as to attorney Christina Wilson as to All Plaintiffs re: 576 Sealed Event, filed. (jmarks, 2) (Entered: 03/15/2018)
581 Mail Returned Undeliverable as to M Vasquez re: 576 Sealed Event, filed. (jmarks, 2) (Entered: 03/15/2018)
582 Mail Returned Undeliverable as to Special Master Deborah Fitzgerald Fowler re: 576 Sealed Event, filed. (sylopez, 2) (Entered: 03/15/2018)
579 Mail Returned Undeliverable as to attorney Joshua Rosenthal as to All Plaintiffs re: 576 Sealed Event, filed. (jmarks, 2) (Entered: 03/15/2018)
New address for Deborah Fowler obtained. ECF database updated. Copy of DE 576 renoticed. (sylopez, 2) (Entered: 03/16/2018)
583 Order of USCA − PER CURIAM − re: 560 Notice of Appeal ; USCA No. 18−40057. It is ordered that appellants' opposed motion for stay pending appeal is carried with the case, filed. (Attachments: # 1 USCA Letter)(dterrell, 2) (Entered: 03/20/2018)
584 Order of USCA re: 560 Notice of Appeal ; USCA No. 18−40057. IT IS ORDERED that the immediate administrative stay granted by this court on January 19, 2018, is hereby CONVERTED to a formal stay pending appeal. We indicate no view on the ultimate merits, but wish only to maintain the status quo until the case is argued on April 30, 2018, and the panel is able to rule on the underlying appeal., filed.(mserpa, 2) (Additional attachment(s) added on 3/21/2018: # 1 USCA Letter) (mserpa, 2). (Entered: 03/21/2018)
585 Unopposed MOTION for Extension of Time to File Claim for Attorney Fees and Expenses by M.D., filed. Motion Docket Date 4/19/2018. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 03/29/2018)
586 ORDER granting 585 Motion for Extension of Time.Plaintiffs' application for attorney fees and expenses is due June 4, 2018.(Signed by Judge Janis Graham Jack) Parties notified.(lrivera, 2) (Entered: 03/29/2018)
588 Sealed Event, filed. (Entered: 04/04/2018)
***Delivery Confirmation; delivery date(s) 4/5/18 @ 10:16 a.m. re: 587 Document(s) Sent, filed. (mserpa, 2) (Entered: 04/05/2018)
589 Mail Returned Undeliverable as to M Vasquez (231 Pearl St, Apt. A Briggs, Tx 78608) re: 586 Order on Motion for Extension of Time, filed. (lcorbett, 7) (Entered: 04/06/2018)
Electronic Access to Record on Appeal Provided re: 560 Notice of Appeal to G. Garlinghouse, B. East and R. Hogan. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−40057), filed.(amireles, 2) (Entered: 04/10/2018)
Electronic Access to Record on Appeal Provided re: 560 Notice of Appeal to N. Adams and N Stepp. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−40057), filed.(amireles, 2) (Entered: 04/10/2018)
590 Mail Returned Undeliverable as to Olivia Sohmer (Childrens Rights) re: 586 Order on Motion for Extension of Time, filed. (dbenavides, 1) (Entered: 04/16/2018)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 71 of 88

05/14/2018 06/01/2018 06/01/2018
06/04/2018 06/07/2018 06/11/2018 06/11/2018 07/25/2018 08/02/2018 08/31/2018
08/31/2018 10/18/2018 10/19/2018
10/29/2018 10/29/2018 10/30/2018 11/20/2018 11/28/2018 11/28/2018

591 Sealed Event, filed. (Additional attachment(s) added on 12/17/2019: # 1 Redacted Letter) (jmarks, 2). (Entered: 05/18/2018)
592 Unopposed MOTION for Extension of Time to File Claim for Attorney Fees and Expenses by M.D., filed. Motion Docket Date 6/22/2018. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 06/01/2018)
593 ORDER ON PLAINTIFFS' THIRD UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE CLAIM FOR ATTORNEY FEES AND EXPENSES − granting 592 Motion for Extension of Time. Plaintiffs' application for attorney fees and expenses is due September 4, 2018.(Signed by Judge Janis Graham Jack) Parties notified.(fcarbia, 2) (Entered: 06/01/2018)
594 Sealed Event, filed. (Entered: 06/07/2018)
Corrective Entry: 594 Sealed Event was recorded on the wrong docket, filed. (mserpa, 2) (Entered: 06/07/2018)
595 Mail Returned Undeliverable as to M Vasquez re: 593 Order on Motion for Extension of Time,, filed. (klopez, 7) (Entered: 06/11/2018)
596 Mail Returned Undeliverable as to M.D. re: 593 Order on Motion for Extension of Time,, filed. (BrendaLacy, 4) (Entered: 06/12/2018)
599 Sealed Event, filed. (Entered: 09/07/2018)
600 Sealed Event, filed. (Additional attachment(s) added on 12/16/2019: # 1 Redacted Letter) (jmarks, 2). (Entered: 09/07/2018)
597 Opposed MOTION for Extension of Time File Claim for Attorney Fees and Expenses by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 9/21/2018. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 08/31/2018)
598 ORDER granting 597 Motion for Extension of Time. Plaintiffs application for attorney fees and expenses is due December 4, 2018.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 08/31/2018)
601 Order of USCA − OPINION − re: 560 Notice of Appeal ; USCA No. 18−40057. I would affirm the District Court's determinations on liability and remedy in full, filed. (Attachments: # 1 USCA Letter)(dterrell, 2) (Entered: 10/18/2018)
602 ORDER: All Parties are ORDERED to submit briefs addressing the issues on remand and proposing remedies consistent with the Fifth Circuits opinion within TEN DAYS from the date of this Order.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, 2) (Entered: 10/19/2018)
603 BRIEF Plaintiffs' Brief Addressing Issues on Remand and Proposing Appropriate Remedies re: 602 Order, by M.D., filed. (Attachments: # 1 Appendix A)(Yetter, R) (Entered: 10/29/2018)
604 BRIEF Defendants' Brief Regarding Issues and Injunctive Remedies on Limited Remand re: 601 USCA Order by Greg Abbott, filed.(Albright, Thomas) (Entered: 10/29/2018)
605 Mail Returned Undeliverable as to Olivia Sohmer; Children's Rights re: 602 Order,, filed. (AdrianDeLaRosa, 7) (Entered: 10/31/2018)
606 ORDER (Signed by Judge Janis Graham Jack) Parties notified.(jmarks, 2) (Entered: 11/20/2018)
Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 560 Notice of Appeal USCA No. 18−40057, filed.(amireles, 2) (Entered: 11/28/2018)
Electronic Access to the Supplemental Record on Appeal Provided re: 560 Notice of Appeal to T. Albright, D. Goldman, C. Ward, B. East, N. Adams, R.Hogan, J. Hughes, R. Yetter, B. McNeil, R. Simpson,P. Lionberger, L. Hoffman, S. Dixon, S. Keller, M. Lowry, K.Hawkins, N. Stepp, S. Bartosz, C. Remlin, T. Grigg Garlinghouse. Attorneys of record at the Circuit may download the record from the Court of Appeals.

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 72 of 88

11/28/2018 12/04/2018 12/04/2018 12/04/2018 12/05/2018 12/06/2018 12/11/2018
12/11/2018 12/21/2018
12/21/2018
12/31/2018 02/01/2019
02/01/2019 04/04/2019 04/04/2019 04/29/2019 06/03/2019

(USCA No. 18−40057), filed.(amireles, 2) (Entered: 11/28/2018)
607 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 606 Order by Greg Abbott, John J Specia, Jr, Chris Traylor (Filing fee $ 505, receipt number 0541−21362939), filed.(Albright, Thomas) (Entered: 11/28/2018)
608 MOTION for Extension of Time to File Claim for Attorney Fees and Expenses by A.M., filed. Motion Docket Date 12/26/2018. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 12/04/2018)
609 Mail Returned Undeliverable as to M Vasquez re: 606 Order, filed. (agould, 3) (Entered: 12/04/2018)
610 ORDER granting 608 Motion for Extension of Time. Plaintiff's application for attorney fees and expenses is due February 2, 2019..(Signed by Judge Janis Graham Jack) Parties notified.(fcarbia, 2) (Entered: 12/04/2018)
611 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 607 Notice of Appeal. Fee status: Paid, filed. (Attachments: # 1 Notice of Appeal) (amireles, 2) (Entered: 12/05/2018)
612 MAIL RETURNED UNDELIVERABLE re D.E. 606 to Olivia Sohmer, filed.(amartinez, 2) (Entered: 12/07/2018)
613 DKT13 TRANSCRIPT ORDER REQUEST by Andrew Stephens. Transcript is already on file in Clerks office regarding No Hearing−No Transcript. (No transcript is needed). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: 607 Notice of Appeal, filed. (Albright, Thomas) (Entered: 12/11/2018)
614 DESIGNATION of Record on Appeal by Greg Abbott, filed.(Albright, Thomas) (Entered: 12/11/2018)
Electronic Access to Supplemental Record on Appeal Provided re: 560 Notice of Appeal, 607 Notice of Appeal to T. Albright, D. Goldman, C. Ward,B. East,N. Adams,R. Hogan,J. Hughes,. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 18−40057), filed.(amireles, 2) (Entered: 12/21/2018)
615 Order of USCA − PER CURIAM − re: 607 Notice of Appeal ; USCA No. 18−40057. The opposed motion for clarification is denied, filed.(dterrell, 2) (Additional attachment(s) added on 12/21/2018: # 1 USCA Letter) (dterrell, 2). (Entered: 12/21/2018)
616 Mail Returned Undeliverable as to attorney Olivia Sohmer as to Children's Rights re: 610 Order on Motion for Extension of Time, filed. (agould, 3) (Entered: 01/07/2019)
617 Unopposed MOTION for Extension of Time To File Claim for Attorney Fees and Expenses by A.M., A.R., C.H., D.I., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., Z.H., filed. Motion Docket Date 2/22/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 02/01/2019)
***Set/Reset Deadlines: Plaintiffs'application for attorney fees and expenses is due by 4/5/2019. (srussell, 2) (Entered: 02/04/2019)
618 Unopposed MOTION for Extension of Time File Claim for Attorney fees and Expenses by M.D., filed. Motion Docket Date 4/25/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 04/04/2019)
619 ORDER granting 618 Motion for Extension of Time Plaintiffs' application for attorney fees and expenses is due 6/4/2019.(Signed by Judge Janis Graham Jack) Parties notified.(fcarbia, 2) (Entered: 04/04/2019)
620 Mail Returned Undeliverable as to Olivia Sohmer re: 619 Order on Motion for Extension of Time, filed. (nortiz, 5) (Entered: 05/01/2019)
621 MOTION for Extension of Time to File Claim for Attorney Fees and Expenses by M.D., filed. Motion Docket Date 6/24/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 06/03/2019)

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06/03/2019 06/03/2019 06/10/2019 06/11/2019 07/30/2019
07/30/2019 07/31/2019 08/05/2019 08/05/2019 08/05/2019 08/06/2019 08/06/2019 08/06/2019 08/08/2019 08/08/2019
08/08/2019
08/09/2019

622 NOTICE of Defendants' Substitution of Lead Counsel by Greg Abbott, filed. (Stephens, Andrew) (Entered: 06/03/2019)
623 ORDER granting 621 Motion for Extension of Time Plaintiffs' application for attorney fees and expenses is due 8/5/2019.(Signed by Judge Janis Graham Jack) Parties notified.(fcarbia, 2) (Entered: 06/03/2019)
624 Mail Returned Undeliverable as to M Vasquez re: 623 Order on Motion for Extension of Time, filed. (JenniferLongoria, 1) (Entered: 06/10/2019)
625 Mail Returned Undeliverable as to Olivia Sohmer at Children's Rights re: 623 Order on Motion for Extension of Time, filed. (ehernandez, 5) (Entered: 06/11/2019)
626 Order of USCA; − JUDGMENT − Judgment issued as mandate 7/30/19 re: 607 Notice of Appeal ; USCA No. 18−40057. It is ordered and adjudged that the judgment of the District Court is affirmed in part, affirmed with modification in part, vacated in part and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court. Case reopened on 7/30/2019, filed.(dterrell, 2) (Entered: 07/30/2019)
627 Order of USCA; Judgment issued as mandate 7/30/19 re: 607 Notice of Appeal ; USCA No. 18−40057, filed. (Attachments: # 1 USCA Letter)(dterrell, 2) (Entered: 07/30/2019)
628 Letter from Monitors to Judge Jack by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 07/31/2019)
629 RESPONSE to 628 Document Letter from Monitors, filed by Greg Abbott, John J Specia, Jr, Chris Traylor. (Stephens, Andrew) (Entered: 08/05/2019)
630 MOTION for Extension of Time to File Claim for Attorney Fees and Expenses by M.D., filed. Motion Docket Date 8/26/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 08/05/2019)
631 ORDER granting 630 Motion for Extension of Time. Plaintiff's application due 9/5/19(Signed by Judge Janis Graham Jack) Parties notified.(jmarks, 2) (Entered: 08/05/2019)
632 Kevin Ryan Resume by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 08/06/2019)
633 NOTICE of Setting. Parties notified. Telephone Conference set for 8/8/2019 at 01:00 PM before Judge Janis Graham Jack, filed. (Conference for counsel and monitors)(lsmith, 2) (Entered: 08/06/2019)
634 Deborah Fowler Resume by Deborah Fitzgerald Fowler, filed.(Ryan, Kevin) (Entered: 08/06/2019)
635 Monitoring Staff Resumes by Kevin Ryan, filed. (Attachments: # 1 Resume)(Ryan, Kevin) (Entered: 08/08/2019)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 8/8/2019. Discussion was heard as to objections to rates of Monitors. Oral orders issued. Hearing concluded. Appearances: R Paul Yetter, Marcia Robinson Lowry, Andrew Bowman Stephens, Deborah Fitzgerald Fowler, Kevin M Ryan, Michael Kenneth Bartosz.(Digital # 1:10 − 1:19)(ERO:Jared Marks), filed.(lsmith, 2) (Entered: 08/08/2019)
636 AO 435 TRANSCRIPT REQUEST by Defendants for Transcript of Telephone Conference on 8/8/19 before Judge Jack. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Exceptional, filed. (Stephens, Andrew) Electronically forwarded to Exceptional on 8/8/2019 (jmarks, 2). (Entered: 08/08/2019)
637 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of 08−08−2019 Telephone conference before Hon. Janis G. Jack. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Electronically forwarded to Exceptional on 8/15/2019 (jmarks, 2). (Entered: 08/09/2019)

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08/12/2019 08/13/2019 08/15/2019
08/16/2019 08/16/2019 08/20/2019 08/20/2019
08/21/2019 08/27/2019
08/27/2019
08/27/2019
08/28/2019
08/29/2019 08/29/2019 08/29/2019 09/03/2019
09/03/2019

638 Mail Returned Undeliverable as to M Vasquez re: 631 Order on Motion for Extension of Time, filed. (sgonzalez, 5) (Entered: 08/12/2019)
639 Monitoring Staff Resumes by Kevin Ryan, filed. (Attachments: # 1 Monitoring Staff Resume)(Ryan, Kevin) (Entered: 08/13/2019)
640 TRANSCRIPT re: TELEPHONE CONFERENCE held on 8/8/19 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 11/13/2019., filed. (thudson, ) (Entered: 08/15/2019)
641 Notice of Filing of Official Transcript as to 640 Transcript. Party notified, filed. (idavis, 2) (Entered: 08/16/2019)
642 Mail Returned Undeliverable as to M Vasquez re: 633 Notice of Setting, filed. (MelissaMorgan, 4) (Entered: 08/16/2019)
643 Monitoring Staff Resume by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 08/20/2019)
645 Record on Appeal Returned from the US Court of Appeals for the Fifth Circuit re: 560 Notice of Appeal, 607 Notice of Appeal ; consisting of 1 envelope of trial exhibits (USCA No. 18−40057), filed.(amireles, 2) All exhibits referenced under DE 597 filed on shelf under 1/7/15 Modified on 8/26/2019 (amireles, 2). (Entered: 08/26/2019)
644 Amendment to Compensation Schedule by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 08/21/2019)
646 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Phone Conference on 8/27/19 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Electronically forwarded to Exceptional on 8/27/2019 (jmarks, 2). (Entered: 08/27/2019)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 8/27/2019. Parties are to confer and submit proposed order regarding confidentiality for the Court's consideration.Hearing concluded. Appearances:Paul Yetter, Andrew Stephens; Deborah Fowler; Kevin Ryan. R Paul Yetter.(Digital # 11:13 − 11:19)(ERO:Jared Marks), filed.(lsmith, 2) (Entered: 08/27/2019)
647 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Phone Conference on 8/27/19 before Judge Jack. Daily. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Copy Request Forwarded to Exceptional on 8/27/2019 (jmarks, 2). (Entered: 08/27/2019)
648 TRANSCRIPT re: TELEPHONE CONFERENCE held on 8/27/19 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 11/26/2019., filed. (thudson, ) (Entered: 08/28/2019)
649 Notice of Filing of Official Transcript as to 648 Transcript. Party notified, filed. (idavis, 2) (Entered: 08/29/2019)
650 Monitoring Staff Resumes by Kevin Ryan, filed. (Attachments: # 1 Monitoring Staff Resume, # 2 Monitoring Staff Resume)(Ryan, Kevin) (Entered: 08/29/2019)
651 Monitoring Staff Resumes by Kevin Ryan, filed. (Attachments: # 1 Monitoring Staff Resume, # 2 Monitoring Staff Resume, # 3 Monitoring Staff Resume)(Ryan, Kevin) (Entered: 08/29/2019)
652 Unopposed MOTION for Extension of Time To File Claim for Attorney Fees and Expenses by A.M., A.R., C.H., D.I., D.P., H.V., J.R., J.S., K. E., L.H., M.D., M.R., P.O., S.A., S.R., S.S., S.T., T.C., T.H., Z.H., filed. Motion Docket Date 9/24/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 09/03/2019)
653 Submission of Agreed Order by M.D., filed. (Attachments: # 1 Proposed Order Confidentiality Order)(Yetter, R) (Entered: 09/03/2019)

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09/04/2019
09/04/2019
09/05/2019 09/05/2019 09/05/2019 09/06/2019
09/06/2019 09/06/2019 09/10/2019 09/16/2019 09/16/2019 09/29/2019 09/29/2019 10/01/2019 10/01/2019 10/03/2019 10/04/2019 10/04/2019
10/04/2019
10/08/2019 10/08/2019 10/09/2019

654 ORDER granting 652 Motion for Extension of Time. Plaintiffs' application for attorney fees and expenses is due October 4, 2019.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 09/04/2019)
655 Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 9/4/2019. Court heard discussion of issues. Hearing concluded. Appearances:Andrew Stephens. R Paul Yetter.(Digital # 1:00 − 1:04)(ERO:Jared Marks), filed.(lsmith, 2) (Entered: 09/04/2019)
656 NOTICE of Submission of Agreed Order by M.D., filed. (Attachments: # 1 Proposed Order Confidentiality Order)(Yetter, R) (Entered: 09/05/2019)
657 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 09/05/2019)
658 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 09/05/2019)
659 SEALED DOCUMENT Monitoring Team Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Team Invoice, # 2 Monitoring Team Invoice) (Ryan, Kevin) (Entered: 09/06/2019)
660 SEALED DOCUMENT Monitoring Team Invoice by Deborah Fitzgerald Fowler, filed. (Fowler, Deborah) (Entered: 09/06/2019)
661 CONFIDENTIALITY ORDER, (Signed by Judge Janis Graham Jack) Parties notified.(lsmith, 2) (Entered: 09/06/2019)
662 Confidentiality Order Signed Acknowledgments by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 09/10/2019)
663 NOTICE Vacation by Greg Abbott, filed. (Stephens, Andrew) (Entered: 09/16/2019)
664 Mail Returned Undeliverable as to M Vasquez re: 661 Order, filed.(RTS; UTF) (sguevara, 4) (Entered: 09/17/2019)
665 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 09/29/2019)
666 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 09/29/2019)
667 Monitoring Staff Resumes by Kevin Ryan, filed. (Attachments: # 1 Resume)(Ryan, Kevin) (Entered: 10/01/2019)
668 Monitoring Staff Signed Confidentiality Order Acknowledgment by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 10/01/2019)
669 Monitoring Staff Signed Confidentiality Order Acknowledgment by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 10/03/2019)
670 SEALED DOCUMENT by Deborah Fitzgerald Fowler, filed. (Fowler, Deborah) (Entered: 10/04/2019)
671 MOTION for Extension of Time to File a Claim for Attorney Fees and Expenses by M.D., filed. Motion Docket Date 10/25/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 10/04/2019)
672 ORDER granting 671 Motion for Extension of Time Submission Date 10/11/2019.(Signed by Judge Janis Graham Jack) Parties notified.(fcarbia, 2) (Entered: 10/04/2019)
673 ADVISORY by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Stephens, Andrew) (Entered: 10/08/2019)
674 SEALED DOCUMENT by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice) (Ryan, Kevin) (Entered: 10/08/2019)
675 AO 435 TRANSCRIPT REQUEST by Paul Yetter for Transcript of Telephonic Hearing on 10/9/19 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Transcript

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10/09/2019
10/09/2019 10/09/2019
10/10/2019 10/11/2019 10/11/2019 10/11/2019 10/11/2019 10/11/2019 10/11/2019 10/11/2019 10/11/2019
10/11/2019
10/15/2019 10/15/2019

order sent to Exceptional Reporting. (Entered: 10/09/2019)
676 Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 10/9/2019. Court heard discussion of issues. Order to be entered. Hearing Concluded. Appearances:David Gutierrez, Law Clerk. R Paul Yetter, Andrew Bowman Stephens, Deborah Fitzgerald Fowler, Kevin M Ryan.(Digital # 10:01:55 − 10:26:14)(ERO:Linda Rivera), filed.(jmarks, 2) (Entered: 10/09/2019)
677 ORDER. The Defendants are ORDERED to provide to the Monitors a complete list of all of these placements with addresses by 5PM on October 10, 2019. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 10/09/2019)
678 AMENDED ORDER. The Defendants shall notify the placements by 5:00 PM on Monday, October 14, 2019. Further, the Defendants are ORDERED to provide to the Monitors a complete list of all of these placements with addresses by 5:00 PM on October 10, 2019. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 10/09/2019)
679 TRANSCRIPT re: TELEPHONE CONFERENCE held on 10/9/19 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 1/8/2020., filed. (thudson, ) (Entered: 10/10/2019)
680 Notice of Filing of Official Transcript as to 679 Transcript. Party notified, filed. (dterrell, 2) (Entered: 10/11/2019)
681 BILL OF COSTS in total amount $191,247.48 by M.D., filed.(Yetter, R) (Entered: 10/11/2019)
682 BILL OF COSTS in total amount $191,247.46 by M.D., filed. (Attachments: # 1 Continuation of Dkt 681)(Yetter, R) (Entered: 10/11/2019)
683 MOTION for Attorney Fees by M.D., filed. Motion Docket Date 11/1/2019. (Attachments: # 1 Exhibit A, # 2 Exhibit A−1, # 3 Exhibit A−2, # 4 Exhibit A−3)(Yetter, R) (Entered: 10/11/2019)
684 MOTION for Attorney Fees by M.D., filed. Motion Docket Date 11/1/2019. (Attachments: # 1 Exhibit Continuation of Dkt 683 − A−4)(Yetter, R) (Entered: 10/11/2019)
685 MOTION for Attorney Fees by M.D., filed. Motion Docket Date 11/1/2019. (Attachments: # 1 Continuation of Dkt 683 − Exhibit A−4 (Part 2))(Yetter, R) (Entered: 10/11/2019)
686 MOTION for Attorney Fees by M.D., filed. Motion Docket Date 11/1/2019. (Attachments: # 1 Continuation of Dkt 683 − Exhibit A−4 (Part 3))(Yetter, R) (Entered: 10/11/2019)
687 MOTION for Attorney Fees by M.D., filed. Motion Docket Date 11/1/2019. (Attachments: # 1 Exhibit B (Dkt 683), # 2 Exhibit B−1 (Dkt 683), # 3 Exhibit B−2 (Dkt 683), # 4 Exhibit B−3 (Dkt 683), # 5 Exhibit B−4 (Dkt 683), # 6 Exhibit C (Dkt 683), # 7 Exhibit C−1 (Dkt 683), # 8 Exhibit C−2 (Dkt 683), # 9 Exhibit C−3 (Dkt 683))(Yetter, R) (Entered: 10/11/2019)
688 MOTION for Attorney Fees by M.D., filed. Motion Docket Date 11/1/2019. (Attachments: # 1 Exhibit D (Dkt 683), # 2 Exhibit D−1 (Dkt 683), # 3 Exhibit D−2 (Dkt 683), # 4 Exhibit D−3 (Dkt 683), # 5 Exhibit D−4 (Dkt 683), # 6 Exhibit D−5 (Dkt 683), # 7 Exhibit D−6 (Dkt 683), # 8 Exhibit D−7 (Dkt 683), # 9 Exhibit E (Dkt 683), # 10 Exhibit F (Dkt 683))(Yetter, R) (Entered: 10/11/2019)
689 Unopposed MOTION for Extension of Time Respond to Plaintiff Class's Application for Attorney Fees and Expenses and Bill of Costs by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. Motion Docket Date 11/5/2019. (Attachments: # 1 Proposed Order Proposed Order)(Stephens, Andrew) (Entered: 10/15/2019)
690 ORDER granting 689 Unopposed MOTION for Extension of Time Respond to Plaintiff Class's Application for Attorney Fees and Expenses and Bill of Costs ; Motion−related deadline set re: 688 MOTION for Attorney Fees, 684 MOTION for Attorney Fees, 683 MOTION for Attorney Fees, 687 MOTION for Attorney Fees, 686

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10/16/2019 10/18/2019 10/18/2019 10/18/2019 10/18/2019 10/21/2019
10/21/2019
10/22/2019 10/24/2019
10/24/2019
10/25/2019
10/28/2019 10/28/2019 10/28/2019 10/31/2019 10/31/2019 10/31/2019

MOTION for Attorney Fees, 685 MOTION for Attorney Fees ( Responses due by 10/31/2019.)(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 10/15/2019)
691 Mail Returned Undeliverable as to M Vasquez re: 672 Order on Motion for Extension of Time, filed. (mmapps, 4) (Entered: 10/18/2019)
692 Monitoring Staff Signed Confidentiality Order by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 10/18/2019)
693 Monitoring Staff Resumes by Kevin Ryan, filed. (Attachments: # 1 Resume)(Ryan, Kevin) (Entered: 10/18/2019)
694 Defendants' Proposed Workload Study Methodology by Greg Abbott, John J Specia, Jr, Chris Traylor, filed.(Stephens, Andrew) (Entered: 10/18/2019)
695 MOTION for Order to Show Cause as to Why Defendants Should Not be Held in Contempt by M.D., filed. Motion Docket Date 11/8/2019. (Yetter, R) (Entered: 10/18/2019)
696 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Phone Conference on 10/09/19 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Transcript Order sent to Exceptional Reporting. (Entered: 10/21/2019)
697 ORDER granting 695 Motion for Order to Show Cause Show Cause Hearing set for 11/5/2019 at 08:30 AM at the Earle Cabell Federal Building and United States Courthouse, 1100 Commerce Street, Room 1525, Dallas, Texas before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) (Attachments: # 1 Exhibit 1) Parties notified.(jmarks, 2) (Entered: 10/21/2019)
698 Mail Returned Undeliverable as to Children's Rights re: 672 Order on Motion for Extension of Time, filed. (agould, 3) (Entered: 10/23/2019)
699 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Status Conference−Phone Hearing on 3/16/17 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Transcript Order sent to Exceptional Reporting 10/24/2019. (Entered: 10/24/2019)
700 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Status Conference−Phone Hearing on 3/16/17. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Transcript Order sent to Exceptional Reporting. (Entered: 10/24/2019)
701 TRANSCRIPT re: STATUS CONFERENCE held on 3/16/17 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 1/23/2020., filed. (thudson, ) (Entered: 10/25/2019)
702 Status Update from the Monitors on Remedial Order 23 by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 10/28/2019)
703 Mail Returned Undeliverable as to Olivia Sohmer Children's Rights re: 680 Notice of Filing of Official Transcript, filed. (mxperez, 5) (Entered: 10/28/2019)
704 Notice of Filing of Official Transcript as to 701 Transcript. Party notified, filed. (ChristinaAvila, 2) (Entered: 10/28/2019)
705 NOTICE of Appearance by Christopher D. Hilton on behalf of Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Hilton, Christopher) (Entered: 10/31/2019)
706 OBJECTIONS to 681 Bill of Costs , filed by Greg Abbott, Chris Traylor. (Stephens, Andrew) (Entered: 10/31/2019)
707 MOTION for Leave to File Motion to Exceed Page Limitations by Greg Abbott, Chris Traylor, filed. Motion Docket Date 11/21/2019. (Attachments: # 1 Exhibit State Defendants' Response to Motion for Attorney Fees and Expenses, # 2 Exhibit State Defendant's Exhibits to Response to Motion for Attorney's Fees and Expenses, # 3

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 78 of 88

11/01/2019 11/01/2019 11/01/2019 11/04/2019 11/04/2019 11/04/2019 11/04/2019 11/05/2019
11/05/2019
11/05/2019 11/05/2019
11/05/2019 11/05/2019

Proposed Order Proposed Order)(Stephens, Andrew) (Entered: 10/31/2019)
708 ORDER granting 707 Unopposed Motion to Exceed Page Limitation.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, 2) (Entered: 11/01/2019)
709 RESPONSE in Opposition to 688 MOTION for Attorney Fees, 687 MOTION for Attorney Fees, 684 MOTION for Attorney Fees, 685 MOTION for Attorney Fees, 683 MOTION for Attorney Fees, 686 MOTION for Attorney Fees, filed by Greg Abbott, John J Specia, Jr, Chris Traylor. (Attachments: # 1 Appendix Exhibits)(Stephens, Andrew) (Entered: 11/01/2019)
710 SUPPLEMENT to 695 MOTION for Order to Show Cause as to Why Defendants Should Not be Held in Contempt by M.D., filed.(Yetter, R) (Entered: 11/01/2019)
711 Court Monitors' Update to the Court on Remedial Orders A7 and A8 by Kevin Ryan, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Ryan, Kevin) (Entered: 11/04/2019)
712 RESPONSE in Opposition to 695 MOTION for Order to Show Cause as to Why Defendants Should Not be Held in Contempt, filed by Greg Abbott, John J Specia, Jr, Chris Traylor. (Stephens, Andrew) (Entered: 11/04/2019)
713 MOTION to Amend 683 MOTION for Attorney Fees by M.D., filed. Motion Docket Date 11/25/2019. (Yetter, R) (Entered: 11/04/2019)
714 ORDER granting 713 Plaintiff's Motion to Amend Motion for Attorney Fees.(Signed by Judge Janis Graham Jack) Parties notified.(jalvarez, 2) (Entered: 11/05/2019)
Minute Entry for proceedings held before Judge Janis Graham Jack. SHOW CAUSE HEARING held on 11/5/2019. Court hears from Defense. Court hears from Plaintiff. Defense calls witnesses Kristene Blackstone and Tara Olah. Defense Exhibits 1−34, 36 and 100 admitted. Court's Exhibits 1 and 2 presented. Plaintiff has 20 days to file briefing. Defense has 20 days to respond. Discussion held on Workload Study and Group Home Exemption. By Friday November 8, 2019 at 5:00 pm., Defense will provide to the Monitors a list of sexually abused and aggressive children. By Wednesday 11/6/19 at 12:00 pm, defense will provide a more legible copy of Courts Exhibit 2. Court finds Contempt of failure to provide 24 hour awake supervision. Appearances:Summer Lee, Trevor Woodruff, Law Clerk: David Gutierrez. Barry F McNeil, R Paul Yetter, Marcia Robinson Lowry, Stephen Dixon, Christopher D. Hilton, Andrew Bowman Stephens, Thomas A Albright, Deborah Fitzgerald Fowler, Kevin M Ryan.(Court Reporter: Pam Wilson)(Digital # 8:22−10:12 and 10:16−11:39)(ERO:n/a), filed.(jmarks, 2) (Entered: 11/05/2019)
715 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Show Cause Hearing on 11/5/19 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Modified on 11/5/2019 (mserpa, 2). (Note: Pam Wilson is the court reporter that took this proceeding. T. Martinez (OAG's Office) notified and she will contact Ms. Wilson directly to place this order.) (Entered: 11/05/2019)
716 ORDER. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 11/05/2019)
717 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Hearing on 11/5/19 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Modified on 11/5/2019 (mserpa, 2). (Note: Pam Wilson is the court reporter that took this proceeding. L. Price at Coleman Yetter notified and she will contact Ms. Wilson directly to place this order.) (Entered: 11/05/2019)
723 COURT'S EXHIBIT 1, filed. (Attachments: # 1 Court's Exhibit 2)(jmarks, 2) (Entered: 11/06/2019)
728 Exhibit List by Greg Abbott (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 79 of 88

11/06/2019 11/06/2019
11/06/2019
11/06/2019
11/06/2019 11/06/2019 11/06/2019 11/06/2019 11/07/2019
11/08/2019 11/08/2019 11/08/2019
11/08/2019

Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 36, # 36 Exhibit 100)(jmarks, 2) (Additional attachment(s) added on 1/13/2020: # 37 Exhibit #100) (fcarbia, 2). (Entered: 11/08/2019)
718 AMENDED ORDER. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 11/06/2019)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 11/6/2019. Discussion held on clarification of Order. Court reiterates the Order that all licensed placements with a PMC child of more than six children shall have 24 hour awake supervision. Appearances:Audry Carmichal, Kristene Blackstone. R Paul Yetter, Christopher D. Hilton, Andrew Bowman Stephens, Deborah Fitzgerald Fowler.(Digital # 9:45:20 − 9:52:00)(ERO:J. Alvarez), filed.(jmarks, 2) (Entered: 11/06/2019)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 11/6/2019. Further discussion held on clarification of Order with parties. Appearances:Audrey Carmichael, Tiffany Roper. R Paul Yetter, Christopher D. Hilton, Andrew Bowman Stephens.(Digital # 10:12:30 − 10:22:23)(ERO:J. Alvarez), filed.(jmarks, 2) (Entered: 11/06/2019)
719 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Phone Conference on 11/6/19 before Judge Jack at 9:45 a.m.; Phone Conference on 11/6/19 before Judge Jack at 10:12 a.m.. Hourly turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) (Entered: 11/06/2019)
720 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Hearing on 11/6/19 at 10:12 a.m. before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) (Entered: 11/06/2019)
721 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Hearing on 11/6/19 at 9:45 a.m. before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) (Entered: 11/06/2019)
722 TRANSCRIPT re: TELEPHONE CONFERENCE held on 11/6/19 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 2/4/2020., filed. (thudson, ) (Entered: 11/06/2019)
724 TRANSCRIPT re: Show Cause Hearing held on 11/5/2019 before Judge Janis Graham Jack. Court Reporter: Pamela J. Wilson. Release of Transcript Restriction set for 2/4/2020, filed. (mserpa, 2) (Entered: 11/06/2019)
725 ORDER. It is ORDERED that Defendants shall be held in civil contempt of Court for violating this Court's order to provide 24−hour awake−night supervision, and that a sanction of $50,000 per day starting Friday November 8, 2019 for seven business days, then $100,000 per day until Defendants are compliant be paid to the Clerk of Court.(Signed by Judge Janis Graham Jack) (Attachments: # 1 Exhibit 1) Parties notified.(jmarks, 2) (Entered: 11/07/2019)
726 Letter From Monitors by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 11/08/2019)
727 Monitoring Staff by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 11/08/2019)
729 ORDER. The Court hereby directs the Clerk of the Court to deposit into the Registry of the Court any and all funds paid in accordance with the Court's November 7, 2019 Order (D.E. 725). Such funds shall be segregated and preserved for the benefit of PMC foster care children as designated by the Court. (Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 11/08/2019)
Financial Document Referred to Finance/Houston re: 725 Order, 729 Order,, filed. (mserpa, 2) (Entered: 11/08/2019)

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11/08/2019 11/08/2019 11/12/2019 11/13/2019 11/13/2019
11/13/2019
11/13/2019
11/13/2019
11/13/2019 11/14/2019 11/14/2019 11/14/2019 11/14/2019 11/14/2019 11/14/2019

730 SEALED DOCUMENT October Invoice − Texas Appleseed Monitoring Team by Deborah Fitzgerald Fowler, filed. (Fowler, Deborah) (Entered: 11/08/2019)
731 SEALED DOCUMENT by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice) (Ryan, Kevin) (Entered: 11/08/2019)
Confirmation of receipt of payment from Texas Comptroller in the amount of $150,000.00 re: 725 Order,. Receipt date: 11/12/19. Receipt number CC015461. Purpose Description: registry money. (dterrell, 2) (Entered: 11/12/2019)
732 NOTICE Regarding the Court's November 7, 2019 Order re: 725 Order, by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Exhibit)(Stephens, Andrew) (Entered: 11/13/2019)
733 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Phone Conference on 11/13/19 before Judge Jack. Hourly turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) (ELECTRONICALLY FORWARDED TO EXCEPTIONAL/ 11/13/19/ VRIOS) (vrios, 2). (Entered: 11/13/2019)
734 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Phone Conference on 11/13/19 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) (ELECTRONICALLY FORWARDED TO EXCEPTIONAL/ 11/13/19/ VRIOS) (vrios, 2). (Entered: 11/13/2019)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 11/13/2019. Discussion held on the lack of 24 hour awake night supervision in specific foster care facilities. Status Conference set for 11/18/2019 at 01:30 PM before Judge Janis Graham Jack at the Earle Cabell Federal Building and United States Courthouse, 1100 Commerce Street, Room 1525, Dallas, Texas. Appearances:Audrey Carmical, Kristene Blackstone. R Paul Yetter, Christopher D. Hilton, Andrew Bowman Stephens, Deborah Fitzgerald Fowler, Kevin M Ryan.(Digital # 9:06:30 − 9:32:53)(ERO:V. Rios), filed.(jmarks, 2) (Entered: 11/13/2019)
735 ORDER: Defendants are ORDERED to provide phone call records to the Monitors by 11/14/2019 at 12:00 p.m. It is also ORDERED that the Director of Boles Childrens Home, d.b.a. Arms of Hope, to appear before Janis Graham Jack, Senior United States District Judge. Show Cause Hearing set for 11/18/2019 at 01:30 PM before Judge Janis Graham Jack at the Earle Cabell Federal Building and United States Courthouse, 1100 Commerce Street, Room 1525, Dallas, Texas. (Signed by Judge Janis Graham Jack) Parties notified.(vrios, 2) (Entered: 11/13/2019)
736 TRANSCRIPT re: TELEPHONIC HEARING held on 11/13/19 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 2/11/2020., filed. (thudson, ) (Entered: 11/13/2019)
737 Notice of Filing of Official Transcript as to 736 Transcript. Party notified, filed. (ChristinaAvila, 2) (Entered: 11/14/2019)
738 SEALED DOCUMENT, filed. (mserpa, 2) (Additional attachment(s) added on 12/16/2019: # 1 Redacted Letter) (jmarks, 2). (Entered: 11/14/2019)
739 NOTICE of Filing Amended Declaration re: 732 Notice (Other) by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Exhibit)(Stephens, Andrew) (Entered: 11/14/2019)
742 Mail Returned Undeliverable as to Olivia Schmer re: 714 Order on Motion to Amend, filed. (ckrus, 4) (Entered: 11/18/2019)
743 Mail Returned Undeliverable as to Children's Rights re: 697 Order on Motion for Order to Show Cause,, filed. (RTS; Attempted Not Known)(sguevara, 4) (Entered: 11/18/2019)
744 Mail Returned Undeliverable as to M Vasquez re: 714 Order on Motion to Amend, filed. (ShoshanaArnow, 4) (Entered: 11/18/2019)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 81 of 88

11/18/2019 11/18/2019 11/18/2019
11/18/2019
11/18/2019 11/18/2019 11/19/2019
11/19/2019
11/19/2019 11/19/2019 11/20/2019 11/25/2019 11/25/2019 11/25/2019 11/29/2019 12/02/2019 12/02/2019

740 Court Monitors' Supplemental Update by Kevin Ryan, filed. (Attachments: # 1 Exhibit)(Ryan, Kevin) (Entered: 11/18/2019)
741 NOTICE Supplemental re: 725 Order, by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Exhibit KTaccetta Declaration re Boles Children's Home and Attachments)(Stephens, Andrew) (Entered: 11/18/2019)
745 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Show Cause Hearing on 11/18/19 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Modified on 11/19/2019 (mserpa, 2). (Ordering party notified of court reporter's name and phone number for purposes of ordering transcript − mfs) (Entered: 11/18/2019)
Minute Entry for proceedings held before Judge Janis Graham Jack. STATUS CONFERENCE held on 11/18/2019. Discussion held on on Boles Home 24 hour awake care. Plaintiff calls witness Troy Robertson. Discussion held on 24 hour awake supervision for PMC Children. Court's Exhibits 1 and 2 admitted. Discussion held on hotline calls. Discussion held on caseload studies. Appearances:Trevor Woodruff, Kristene Blackstone, Jadd Masso. R Paul Yetter, Christopher D. Hilton, Andrew Bowman Stephens, Thomas A Albright, Kevin M Ryan.(Court Reporter: Shawn McRoberts)(Digital # 1:24 − 1:59), filed.(jmarks, 2) (Entered: 11/19/2019)
750 COURT'S EXHIBIT 1, filed. (Attachments: # 1 Court's Exhibit 2)(jmarks, 2) (Entered: 11/22/2019)
770 Letter from Liliana Salinas−Sletmoen, filed. (jmarks, 2) (Additional attachment(s) added on 12/16/2019: # 1 Envelope) (jmarks, 2). (Entered: 12/16/2019)
746 TRANSCRIPT re: Show Cause Hearing held on 11/18/19 before Judge Janis Graham Jack. Court Reporter/Transcriber Shawn McRoberts. Ordering Party Andrew Stevens Release of Transcript Restriction set for 2/18/2020, filed. (mserpa, 2) (Entered: 11/19/2019)
747 ORDER: The Court ACCEPTS Boles Childrens Homes agreement to comply with the Courts November 20, 2018 Order and provide 24−hour−awake−night supervision to the PMC children in its care immediately. (Signed by Judge Janis Graham Jack) Parties notified.(amartinez, 2) (Entered: 11/19/2019)
749 Mail Returned Undeliverable as to M Vasquez re: 735 Order, filed. (sanderson, 4) (Entered: 11/21/2019)
773 Letter from Shiron S. Polk, filed. (jmarks, 2) (Additional attachment(s) added on 12/17/2019: # 1 Unredacted Letter, # 2 Envelope) (jmarks, 2). (Entered: 12/17/2019)
748 Notice of Filing of Official Transcript as to 746 Transcript. Party notified, filed. (dterrell, 2) (Entered: 11/20/2019)
751 Unopposed MOTION for Extension of Time to File Reply in Support of Fee Application and Bill of Costs by M.D., filed. Motion Docket Date 12/16/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 11/25/2019)
752 ORDER granting 751 Motion for Extension of Time to File Reply in Support of their Fee Application and Bill of Costs. Replies due by 12/2/2019.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, 2) (Entered: 11/25/2019)
753 Mail Returned Undeliverable as to Children's Rights re: 735 Order,,, filed. (gkelner, 4) (Entered: 11/25/2019)
760 Mail Returned Undeliverable as to M Vasquez re: 747 Order,, filed. (jguajardo, 4) (Entered: 12/05/2019)
754 SEALED DOCUMENT, filed. (KelliePapaioannou, 2) (Entered: 12/02/2019)
755 Joint MOTION for Extension of Time for Briefing Deadlines and Plaintiffs' Unopposed Motion to Exceed Page Limitations by M.D., filed. Motion Docket Date 12/23/2019. (Attachments: # 1 Proposed Order)(Yetter, R) (Entered: 12/02/2019)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 82 of 88

12/02/2019 12/03/2019 12/03/2019
12/05/2019 12/05/2019 12/05/2019 12/06/2019 12/09/2019 12/09/2019
12/09/2019 12/10/2019 12/10/2019 12/10/2019 12/16/2019
12/16/2019 12/17/2019 12/19/2019 12/19/2019 01/06/2020

758 Mail Returned Undeliverable as to attorney Olivia Sohmer as to All Plaintiffs re: 747 Order,, filed. (agould, 3) (Entered: 12/03/2019)
756 SEALED DOCUMENT Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Document, # 2 Document) (Ryan, Kevin) (Entered: 12/03/2019)
757 ORDER granting 755 Motion for Extension of Time. Plaintiffs' Reply in Support of their Bill of Costs and Application for Attorney Fees and Expenses shall be due on December 9, 2019; and State Defendants' Sur−Reply to Plaintiffs' Bill of Costs and Application for Attorney Fees and Expenses shall be due on January 13, 2020.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 12/03/2019)
759 NOTICE Supplemental Notice Regarding The Boles Children's Home by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Attachments: # 1 Exhibit A)(Stephens, Andrew) (Entered: 12/05/2019)
761 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 725 Order, 716 Order, 718 Order by Greg Abbott, John J Specia, Jr, Chris Traylor (Filing fee $ 505, receipt number 0541−23709290), filed. (Stephens, Andrew) (Entered: 12/05/2019)
763 Mail Returned Undeliverable as to M Vasquez re: 752 Order on Motion for Extension of Time, filed. (hlerma, 4) (Entered: 12/09/2019)
766 Mail Returned Undeliverable as to Olivia Sohmer re: 752 Order on Motion for Extension of Time, filed. (CindyMiranda, 5) (Entered: 12/10/2019)
762 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 761 Notice of Appeal. Fee status: Paid. Reporter(s): ERO, filed. (fcarbia, 2) (Entered: 12/09/2019)
764 REPLY in Support of 683 MOTION for Attorney Fees, filed by M.D.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Yetter, R) (Entered: 12/09/2019)
765 REPLY to 706 Objections to Plaintiffs' Bill of Costs, filed by M.D.. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit 16, # 3 Exhibit 17, # 4 Exhibit 18, # 5 Exhibit 19, # 6 Exhibit 20)(Yetter, R) (Entered: 12/09/2019)
767 SEALED DOCUMENT November Invoice by Deborah Fitzgerald Fowler, filed. (Fowler, Deborah) (Entered: 12/10/2019)
768 SEALED DOCUMENT, filed. (jmarks, 2) (Entered: 12/11/2019)
769 Letter from Richard Jackson, filed. (jmarks, 2) (Entered: 12/11/2019)
771 Agreed MOTION Agreed Motion Regarding Worklod Studies in the November 20, 2018 Order by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. Motion Docket Date 1/6/2020. (Attachments: # 1 Proposed Order Order Regarding Workload Studies)(Hilton, Christopher) (Entered: 12/16/2019)
774 Mail Returned Undeliverable as to M Vasquez re: 762 Clerk's Notice of Filing of an Appeal, filed. (CindyMiranda, 5) (Entered: 12/17/2019)
772 ORDER REGARDING WORKLOAD STUDIES IN THE NOVEMBER 20, 2018 ORDER granting 771 Motion.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 12/17/2019)
The Court Orders the United States Marshals Service to do preliminary background checks on all proposed staff submitted by the Monitors., filed. (jmarks, 2) (Entered: 12/19/2019)
775 Mail Returned Undeliverable as to Children's Rights re: 762 Clerk's Notice of Filing of an Appeal, filed. (RTS; Attempted Not Known)(sguevara, 4) (Entered: 12/20/2019)
776 Monitor's Staff Resumes by Kevin Ryan, filed. (Attachments: # 1 Monitor's Staff Resume)(Ryan, Kevin) (Entered: 01/06/2020)

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 83 of 88

01/07/2020 01/07/2020 01/10/2020
01/10/2020 01/10/2020 01/10/2020 01/10/2020 01/13/2020 01/13/2020
01/13/2020 01/15/2020 01/15/2020 01/15/2020 01/15/2020 01/16/2020 01/21/2020 01/31/2020
02/05/2020 02/05/2020

777 SEALED DOCUMENT Monitor's Invoice by Kevin Ryan, filed. (Attachments: # 1 Invoice, # 2 Expenses) (Ryan, Kevin) (Entered: 01/07/2020)
778 SEALED DOCUMENT Appleseed Monitoring Team Invoice by Deborah Fitzgerald Fowler, filed. (Fowler, Deborah) (Entered: 01/07/2020)
779 DKT13 TRANSCRIPT ORDER REQUEST by Christopher Hilton. Transcript is already on file in Clerks office regarding Phone Conference on 10/9/19 before Judge Jack; Show Cause Hearing on 11/5/19 before Judge Jack; Two Phone Conferences on 11/6/19 before Judge Jack; and Show Cause Hearing on 11/18/19 before Judge Jack. (A transcript is requested). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: Status Conference,, 761 Notice of Appeal, 746 Transcript, 736 Transcript, 724 Transcript, 722 Transcript, 701 Transcript, 679 Transcript, filed. (Hilton, Christopher) (Entered: 01/10/2020)
780 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 01/10/2020)
781 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 01/10/2020)
782 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 01/10/2020)
783 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 01/10/2020)
Fifth Circuit Court of Appeals LETTER advising EROA due 1/27/2020 (USCA No. 19−41015), filed.(fcarbia, 2) (Entered: 01/13/2020)
784 Unopposed MOTION for Leave to File Excess Pages by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. Motion Docket Date 2/3/2020. (Attachments: # 1 Exhibit State Defendant's Sur−Reply to Plaintiff Class's Application for Attorney's Fees and Expenses, # 2 Appendix Exhibits to State Defendant's Sur−Reply, # 3 Proposed Order Proposed Order)(Stephens, Andrew) (Entered: 01/13/2020)
785 Opposed OBJECTIONS to 681 Bill of Costs Defendants' Sur−Reply, filed by Greg Abbott, John J Specia, Jr, Chris Traylor. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Stephens, Andrew) (Entered: 01/13/2020)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 761 Notice of Appeal USCA No. 19−41015, filed.(fcarbia, 2) (Entered: 01/15/2020)
786 Appleseed Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 01/15/2020)
787 Appleseed Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 01/15/2020)
788 Appleseed Monitoring Staff Confidentiality Order Acknowledgments by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 01/15/2020)
789 NOTICE of Submission re: 772 Order on Motion for Miscellaneous Relief by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Stephens, Andrew) (Entered: 01/16/2020)
790 Monitoring Staff Confidentiality Agreement by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 01/21/2020)
Electronic Access to Record on Appeal Provided re: 761 Notice of Appeal to Kyle Douglas Hawkins, Joseph D. Hughes, Greg Abott, Courtney Phillips, Jaime Masters, Christian J. Ward and R. Paul Yetter. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−41015), filed.(fcarbia, 2) (Entered: 01/31/2020)
791 SEALED DOCUMENT Monitors Invoice by Kevin Ryan, filed. (Attachments: # 1 Document, # 2 Document) (Ryan, Kevin) (Entered: 02/05/2020)
792 Monitors Staff Confidentiality Order by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 02/05/2020)

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02/05/2020 02/05/2020 02/05/2020 02/05/2020 02/05/2020 02/06/2020 02/11/2020 02/12/2020 02/12/2020 02/12/2020
02/12/2020 02/12/2020
02/14/2020 02/18/2020 02/18/2020 02/19/2020 02/19/2020 02/20/2020 02/21/2020

793 Monitoring Staff Resume − Intern by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/05/2020)
794 Intern Confidentiality Order Acknowledgment by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/05/2020)
795 Monitoring Staff Resume − Intern by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/05/2020)
796 Monitoring Staff Intern Signed Confidentiality Order Acknowledgment by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/05/2020)
797 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/05/2020)
798 SEALED DOCUMENT Texas Appleseed Monitoring Team Invoice by Deborah Fitzgerald Fowler, filed. (Fowler, Deborah) (Entered: 02/06/2020)
799 SEALED DOCUMENT Monitoring Staff Applicant Resume and Exhibits by Deborah Fitzgerald Fowler, filed. (Attachments: # 1 Exhibit, # 2 Exhibit) (Fowler, Deborah) (Entered: 02/11/2020)
800 NOTICE of Appearance by Kimberly Gdula on behalf of Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Gdula, Kimberly) (Entered: 02/12/2020)
***Set/Reset Hearings: Telephone Conference set for 2/12/2020 at 09:00 AM before Judge Janis Graham Jack (jmarks, 2) (Entered: 02/12/2020)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 2/12/2020. Discussion held on the potential hiring of Monitors Staff. Discussion held on the definitions provided by the Monitors. Defendants shall provide comments by Wednesday 2/19/2020. Order to follow. Appearances:Audrey Carmichael, R Paul Yetter, Christopher D. Hilton, Kimberly Ann Gdula, Deborah Fitzgerald Fowler, Kevin M Ryan.(Digital # 9:02:05 − 9:12:54)(ERO:A. Martinez), filed.(jmarks, 2) (Entered: 02/12/2020)
801 ORDER Comments to the Court Monitors due by 12:00 PM on 2/19/2020.(Signed by Judge Janis Graham Jack) Parties notified.(KelliePapaioannou, 2) (Entered: 02/12/2020)
802 AO 435 TRANSCRIPT REQUEST by Christopher Hilton for Transcript of Phone Conference held on 2/12/20 before Judge Janis Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Hilton, Christopher) Electronically forwarded to Exceptional on 2/13/20. Estimated Transcript Completion Date 24 hours. (amartinez, 2). (Entered: 02/12/2020)
803 Transcript (Sealed) of proceedings held on held on 2/12/20. Court Reporter/Transcriber EXCEPTIONAL REPORTING, filed. (thudson, ) (Entered: 02/14/2020)
804 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/18/2020)
805 Monitoring Staff Signed Confidentiality Order Acknowledgment by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/18/2020)
806 NOTICE of Submission Regarding Heightened Monitoring re: 801 Order by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Gdula, Kimberly) (Entered: 02/19/2020)
807 NOTICE of Submission Regarding Caseload Standards re: 801 Order by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Gdula, Kimberly) (Entered: 02/19/2020)
808 ***Set/Reset Deadlines/Hearings: Telephone Conference set for 2/21/2020 at 11:00 AM before Judge Janis Graham Jack (jmarks, 2) (jmarks, 2). (Entered: 02/20/2020)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 2/21/2020. Discussion held on Monitors staffing, fees and their duties. Discussion held on 24−hour awake supervision. Discussion held on attorneys fees to be used for an integrated computer system for DFPS. Discussion held

Case: 2:11-cv-84 As of: 05/10/2020 12:44 PM CDT 85 of 88

02/21/2020
02/21/2020
02/21/2020 02/22/2020
02/24/2020 02/25/2020
02/25/2020 02/26/2020 02/28/2020 02/28/2020 02/28/2020 02/28/2020 02/28/2020 02/28/2020 02/28/2020 02/28/2020 02/28/2020

on the death of a child in DFPS custody. Discussion held on Childrens Hope House and Hector Garza facilities. Court orders Mr. Yetter to obtain a transcript of todays telephone conference. Courts Order to follow on discussions held during todays telephone conference. Appearances: R Paul Yetter, Christopher D. Hilton, Kimberly Ann Gdula, Andrew Bowman Stephens, Deborah Fitzgerald Fowler, Kevin M Ryan.(Digital # 10:58:27 − 11:29:41)(ERO:L. Garza), filed.(jmarks, 2) (Entered: 02/21/2020)
809 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Phone Conference held on 2/21/20 before Judge Janis Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Electronically forwarded to Exceptional Reporting on 2/21/2020 (grogan, 2). (Entered: 02/21/2020)
810 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of 2/21/2020. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Electronically forwarded to Exceptional Reporting on 2/21/2020 (grogan, 2). (Entered: 02/21/2020)
811 ORDER. Response due no later than 12:00 p.m. on 2/26/2020.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, 2) (Entered: 02/21/2020)
812 TRANSCRIPT re: TELEPHONIC HEARING held on 2/21/20 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 5/22/2020., filed. (thudson, ) (Entered: 02/22/2020)
813 Notice of Filing of Official Transcript as to 812 Transcript. Party notified, filed. (dterrell, 2) (Entered: 02/24/2020)
814 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Request Audio for Phone Conference on 2/21/20 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) (Entered: 02/25/2020)
815 Mail Returned Undeliverable as attorney Olivia Sohmer re: 801 Order, filed. The address was updated and the Order was re−noticed. (ClaudiaGutierrez, 4) (Entered: 02/26/2020)
816 NOTICE Of Submission re: 811 Order by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Gdula, Kimberly) (Entered: 02/26/2020)
817 Monitoring Staff Resume by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 02/28/2020)
818 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 02/28/2020)
819 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 02/28/2020)
820 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 02/28/2020)
821 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 02/28/2020)
822 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 02/28/2020)
823 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 02/28/2020)
824 Texas Appleseed Invoice − August 2019 by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/28/2020)
825 Texas Appleseed Invoice − September 2019 by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/28/2020)

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02/28/2020 02/28/2020 02/28/2020 02/28/2020 03/02/2020 03/02/2020
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826 Texas Appleseed Invoice − October 2019 by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/28/2020)
827 Texas Appleseed Invoice − November 2019 by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/28/2020)
828 Texas Appleseed Invoice − December 2019 by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/28/2020)
829 Texas Appleseed Invoice − January 2020 by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 02/28/2020)
830 Confidentiality Order by Kevin Ryan, filed.(Ryan, Kevin) (Entered: 03/02/2020)
Electronic Access to Record on Appeal Provided re: 761 Notice of Appeal to Lonny Jacob Hoffman for Appellee A. R.. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−41015), filed.(fcarbia, 2) (Entered: 03/02/2020)
831 Monitoring Staff Acknowledgment of Confidentiality Order by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 03/02/2020)
832 The Court Monitors' Report to the Court Regarding Remedial Order 20 by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 03/03/2020)
833 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 03/04/2020)
834 TRANSCRIPT re: AMENDED TRANSCRIPT TO REPLACE DE 812; TELEPHONIC HEARING held on 2−21−20 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 6/8/2020., filed. (thudson, ) (Entered: 03/09/2020)
835 Notice of Filing of Official Transcript as to 834 Transcript,. Party notified, filed. (ChristinaAvila, 2) (Entered: 03/10/2020)
836 Appleseed February Monitoring Invoice by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 03/12/2020)
837 ORDER Adopting Definitions (Signed by Judge Janis Graham Jack) Parties notified.(jmarks, 2) (Entered: 03/18/2020)
838 ORDER to temporarily suspend until further notice "in−person" aspects of the March 18th (D.E. 837) Order.(Signed by Judge Janis Graham Jack) Parties notified.(jmarks, 2) (Entered: 03/29/2020)
839 NOTICE of Setting. Parties notified. Telephone Conference set for 4/3/2020 at 01:00 PM by telephone before Judge Janis Graham Jack, filed. (Confirmed attendance received from Paul Yetter, Kimberly Gdula, Debbie Fowler, and Kevin Ryan via email).(LoriPurifoy, 4) (Entered: 04/01/2020)
840 RESPONSE to 838 Order , filed by Greg Abbott, John J Specia, Jr, Chris Traylor. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Gdula, Kimberly) (Entered: 04/01/2020)
841 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Phone Conference held on 4/3/20 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Audio and log notes uploaded to Exceptional on 4/6/20 by Frenchie Carbia. Estimated completion of transcript order is 4/7/20. (Entered: 04/03/2020)
842 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Hearing on 4/3/2020 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R) Audio and log notes uploaded to Exceptional on 4/6/20 by Frenchie Carbia. Estimated completion of transcript order is 4/7/20. (Entered: 04/03/2020)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 4/3/2020. Discussion re: compliance with the Court's Order

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04/03/2020 04/07/2020
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04/21/2020 04/21/2020 04/22/2020
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04/22/2020

(DE 837) and the effects of the COVID−19 pandemic. DFPS and HHSC to provide info on pattern, heightened monitoring, list of operations to monitors by 6/5/20. Order to follow re: today's hearing. Appearances:Paul Yetter, Kimberly Gdula, Chris Hilton, Debbie Fowler, Kevin Ryan. Appearances for DFPS: Audrey Carmical − General Counsel; Tiffany Roper − Deputy General Counsel ; Rand Harris − Associate Commissioner of Compliance, Coordination and Strategy; Kristene Blackstone − Associate Commissioner of Child Protective Services; Rebecca Flores − Director of Purchased Client Services ; Ashland Batiste − Director of Child Care Investigations; Jane Burstain − Director of Systems Improvement. Appearances for HHSC: Corey Kintzer − Associate Director of Litigation; Jean Shaw − Associate Commissioner for Child Care Regulation. (Digital # 12:57−2:02)(ERO:Angel Mireles), filed.(LoriPurifoy, 4) (Entered: 04/03/2020)
843 ORDER (Signed by Judge Janis Graham Jack) Parties notified.(jmarks, 2) (Entered: 04/03/2020)
844 TRANSCRIPT re: TELEPHONE CONFERENCE held on 4/3/20 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party TAMERA MARTINEZ Release of Transcript Restriction set for 7/6/2020., filed. (thudson, ) (Entered: 04/07/2020)
845 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice, # 2 Monitoring Invoice)(Ryan, Kevin) (Entered: 04/07/2020)
846 Mail Returned Undeliverable as to M Vasquez re: 838 Order, filed. (gkelner, 4) (Entered: 04/07/2020)
847 Notice of Filing of Official Transcript as to 844 Transcript. Party notified, filed. (dterrell, 2) (Entered: 04/08/2020)
848 NOTICE Submission−Cost Estimate re: 843 Order by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Gdula, Kimberly) (Entered: 04/13/2020)
849 Appleseed March Monitoring Invoice by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 04/13/2020)
850 Mail Returned Undeliverable as to M Vasquez re: 843 Order, filed. (mmapps, 4) (Entered: 04/14/2020)
851 Monitoring Staff Resume by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 04/17/2020)
852 NOTICE of Setting. Parties notified. Telephone Conference set for 4/22/2020 at 09:00 AM before Judge Janis Graham Jack, filed. (Confirmed attendance received from Paul Yetter, Kimberly Gdula, Debbie Fowler, and Kevin Ryan via email)(LoriPurifoy, 4) (Entered: 04/20/2020)
853 State Plan to Protect Children and Staff from Further Spread of COVID−19 by Greg Abbott, John J Specia, Jr, Chris Traylor, filed.(Gdula, Kimberly) (Entered: 04/21/2020)
854 NOTICE of Proposed Hearing Agenda by M.D., filed. (Yetter, R) (Entered: 04/21/2020)
855 AO 435 TRANSCRIPT REQUEST by R. Paul Yetter for Transcript of Phone Conference held on 4/22/20 before Judge Jack.. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Yetter, R). Request Electronically Forward to Exceptional Reporting Services 04/23/2020 (MaraSalas, 2). (Entered: 04/22/2020)
856 AO 435 TRANSCRIPT REQUEST by Andrew Stephens for Transcript of Phone Conference held on 4/22/20 before Judge Jack. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Stephens, Andrew) Request Electronically Forwarded to Exceptional Reporting Services 4/23/2020 (MaraSalas, 2). (Entered: 04/22/2020)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 4/22/2020. Discussion re: State Plan to Protect Children and Staff from Further Spread of COVID−19 (DE 853), and matters set forth in Proposed

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Agenda (DE 854). Order to follow re: today's hearing.Appearances: Marcia Robinson Lowry, Kimberly Ann Gdula, Samantha Bartosz, Christina Remlin, Deborah Fitzgerald Fowler, Kevin M Ryan. Appearances for DFPS: Audrey Carmical − General Counsel; Tiffany Roper − Deputy General Counsel ; Rand Harris − Associate Commissioner of Compliance, Coordination and Strategy; Kristene Blackstone − Associate Commissioner of Child Protective Services; Rebecca Flores − Director of Purchased Client Services ; Ashland Batiste − Director of Child Care Investigations. Appearances for HHSC: Corey Kintzer − Associate Director of Litigation; Jean Shaw − Associate Commissioner for Child Care Regulation.(Digital # 8:59−9:35)(ERO:Mara Salas), filed.(LoriPurifoy, 4) (Entered: 04/22/2020)
857 TRANSCRIPT re: TELEPHONE CONFERENCE held on 4/22/20 before Judge Janis Graham Jack. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party PAUL YETTER Release of Transcript Restriction set for 7/23/2020., filed. (thudson, ) (Entered: 04/24/2020)
858 Notice of Filing of Official Transcript as to 857 Transcript. Party notified, filed. (dterrell, 2) (Entered: 04/27/2020)
859 Monitoring Staff Signed Confidentiality Order Acknowledgment by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 04/28/2020)
860 Monitoring Staff Resume and Confidentiality Order by Kevin Ryan, filed. (Attachments: # 1 Confidentiality Order)(Ryan, Kevin) (Entered: 04/30/2020)
861 NOTICE of Submission Regarding Education and Technology Information by Greg Abbott, John J Specia, Jr, Chris Traylor, filed. (Gdula, Kimberly) (Entered: 05/01/2020)
862 Monitoring Staff Confidentiality Order Signed Acknowledgment by Deborah Fitzgerald Fowler, filed.(Fowler, Deborah) (Entered: 05/05/2020)
863 Monitoring Invoice by Kevin Ryan, filed. (Attachments: # 1 Monitoring Invoice)(Ryan, Kevin) (Entered: 05/05/2020)