Case 3:10-cv-30073 Document 1 Filed 04/15/10 Page 1 of 76

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
WESTERN DIVISION

CONNOR B., a minor child, by his next friend, Rochelle Vigurs,
ADAM S., a minor child, by his next friend, Denise Sullivan,
CAMILA R., a minor child, by her next friend, Bryan Clauson,
ANDRE S., a minor child, by his next friend, Julia Pearson,
SETH T., a minor child, by his next friend, Susan Kramer, and
RAKEEM D., a minor child, by his next friend, Bryan Clauson,
Individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DEVAL L. PATRICK, in his official capacity as Governor of the Commonwealth of Massachusetts,
JUDYANN BIGBY, in her official capacity as Secretary of the Massachusetts Executive Office of Health & Human Services, and
ANGELO MCCLAIN, in his official capacity as Commissioner of the Massachusetts Department of Children and Families,
Defendants.

) ) ) ) ) ) ) ) ) ) ) CASE NO. ________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT

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TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1 JURISDICTION, VENUE AND ASSIGNMENT ..........................................................................4 PARTIES .........................................................................................................................................6 Named Plaintiffs ..............................................................................................................................6
Connor B. ...............................................................................................................................6 Adam S. ................................................................................................................................10 Camila R. .............................................................................................................................13 Andre S. ...............................................................................................................................17 Seth T. ..................................................................................................................................21 Rakeem D. ............................................................................................................................23 Named Plaintiffs, Collectively..............................................................................................27 Next Friends...................................................................................................................................28 Defendants .....................................................................................................................................30 CLASS ACTION ALLEGATIONS ..............................................................................................31 GENERAL ALLEGATIONS ........................................................................................................33 I. Defendants Are Causing Harm To Children In Foster Care..............................................33
A. Defendants Fail To Protect Children From Abuse And Neglect In Foster Care. ......................................................................................................35
B. Defendants Unnecessarily Move Children Among Multiple Foster Care Placements...............................................................................................37
C. Defendants Place Children In Unsuitable Or Inappropriate Foster Homes Unable To Properly Care For Them ................................................... 38
D. Defendants Fail To Provide Children With Permanent Families As Soon As Safely Possible ..................................................................................39
1. Defendants Fail To Safely Reunify Children With Their Families .................40
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2. Defendants Fail To Timely Place Children With Adoptive Families When Reunification Is Not Possible ................................................................41
3. Defendants Fail To Prepare Children Who “Age Out” Of Foster Care To Live As Independent Adults ..............................................................42
E. Defendants Fail To Provide Children With Essential Services ............................................................................................................43
1. Defendants Fail To Provide Children With Adequate Visitation With Parents And Siblings, Damaging Their Family Relationships ...............43
2. Children Do Not Receive Adequate Medical, Dental And Mental Health Care ......................................................................................................44
3. DCF Fails To Assure That Children Receive Adequate Educational Services ...........................................................................................................46
II. The Harms And Risk Of Harms Suffered By Children Result From Defendants’ Failure To Properly Manage The DCF Foster Care System .........................47
A. Defendants Fail To Maintain An Adequately Staffed And Appropriately Trained Child Welfare Workforce............................................47
1. Caseworkers Carry Unmanageable Caseloads.................................................47
2. DCF Fails To Provide Adequate Training To Its Child Welfare Workforce ........................................................................................................49
B. Defendants Fail To Properly Manage DCF’s Foster Care Placements..................50
1. DCF Fails To Recruit And Retain An Adequate Number Of Foster Homes ..............................................................................................................50
2. DCF Fails To Timely And Appropriately Make Use Of Kin Placements .......................................................................................................54
3. DCF Does Not Appropriately Match Children To Foster Care Placements Capable Of Meeting Their Needs .................................................55
4. DCF Fails To Assure Foster Home Safety ......................................................57
C. DCF Fails To Properly Develop And Implement Case Plans And Service Plans For Foster Children And Their Families ...................................60
1. DCF Fails To Sustain Family Ties And Support Reunification When It Is Safely Possible ...............................................................................60
2. DCF Fails To Assure Timely Adoptions .........................................................62
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Case 3:10-cv-30073 Document 1 Filed 04/15/10 Page 4 of 76 3. DCF Fails To Adequately Prepare Youth Aging Out To Live Independently As Adults..................................................................................63
D. DCF Fails To Access Available Federal Funding .................................................64 COUNT I .......................................................................................................................................65 COUNT II ......................................................................................................................................67 COUNT III.....................................................................................................................................67 COUNT IV.....................................................................................................................................68 PRAYER FOR RELIEF ................................................................................................................69
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INTRODUCTION 1. This is a civil rights class action brought on behalf of all children who are now or will be in the foster care custody of the Massachusetts Department of Children and Families (“DCF”)1 as a result of abuse or neglect (“Plaintiff Children”). Defendants, each sued in his or her official capacity only and not individually, are Deval L. Patrick, Governor of the Commonwealth of Massachusetts (“Massachusetts”); JudyAnn Bigby, Secretary of the Massachusetts Executive Office of Health and Human Services (“EOHHS”); and Angelo McClain, Commissioner of DCF (collectively, “Defendants”). 2. Plaintiff Children, each of whom relies on DCF for basic care and protection, seek both declaratory and injunctive relief to remedy violations of their legal rights and to prevent Defendants, by their actions and their failure to act as lawfully required, from continuing to cause them harm. 3. The foster care system operated by DCF is responsible, under federal and state law, for investigating allegations of child abuse and neglect, for delivering in-home services to preserve families when safely possible, for providing temporary care and protection for children who cannot safely remain at home, for securing safe and stable families as soon as possible for children removed into state care, whether by reunification, adoption or legal guardianship, and for preparing those youth who will age out of foster care to live independently as adults. 4. The Massachusetts foster care system, however, is causing physical and psychological harm to the abused and neglected children it is mandated to protect. The myriad systemic defects afflicting the Massachusetts foster care system have long been known to
1 DCF was known as the Department of Social Services (“DSS”) until 2008. To avoid confusion, the department will be uniformly referred to as “DCF” in this pleading.
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Defendants, who are responsible by law for the approximately 8,500 vulnerable children and
youth currently in state foster care. Defendants are failing to take the necessary action to
discharge their obligations to ensure the safety and well-being of the children taken into their
custody.
5. DCF has harmed and continues to harm abused and neglected children in
foster care in numerous ways, including:
a. Children are abused and neglected while in Massachusetts foster care custody at an alarm ing rate. Among the 47 jurisdictions 2 reporting maltreatment data in 2008, Massachuse tts ranked 4th wo rst in the rate of abuse and neglect of children in foster care. DCF perfor mance in this vital safety measure deteriorated further in 2009.
b. Children in DCF foster care are moved from foster hom e to foster home with dam aging frequency, many moved between five or m ore different foster homes while in s tate care. A ccording to the m ost recent federal aud it of DCF perform ance, Massachusetts ranks 8th worst among the 51 jurisdictions reporting data on placement stability.
c. Many of the approxim ately 2,500 children in DCF foster care with a permanency goal of adoption languish in foster care for years; som e literally grow up in state care. Ac cording to the m ost recent federal audit of DCF performance, Massachusetts ranks 13th worst among the 47 jurisdictions reporting data on timeliness of adoptions.
d. Approximately 900 children “age out” of DCF foster care every year with no permanent family, a substantial number of them inadequately prepared to live independently as adults.
e. Approximately one in six child ren who are reunified with their families after removal into f oster care r eturn to f oster care due to further abuse or neglect.
6. These and other harms to children are caused by Defendants’ failure to
effectively manage the agency’s workforce, resources and practices. A number of systemic
problems undermine the agency’s ability to fulfill its legal obligations, including:
2 The federal government collects data concerning 52 jurisdictions that participate in the Title IV-E foster program implemented under the Social Security Act. Those 52 jurisdictions are the 50 states, the District of Columbia and Puerto Rico.
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a. DCF caseworkers carry unm anageable caseloads vastly exceeding what is co nsidered appropriate according to generally accepted professional standards. Excessive caseloads make it dif ficult in th e best of circum stances, and oftent imes impossible, to meet even minimum standards of care and protection for children.
b. DCF does not require or adequa tely provide ongoing training for caseworkers and supervisors.
c. DCF fails to recruit and maintain a sufficient number and array of safe and appropriate family foster homes and therapeutic placements. The serious shortage of foster care p lacements prevents D CF from matching children with caretakers able to m eet their need s and often forces DCF to make resource-driven placement decisions based simply on available beds rather than on children’s needs.
d. Family relationships are unnecess arily disrupted, and s ometimes permanently severed, because DCF does n ot ensure regular o r meaningful child-parent and sibling visitation, and because parents do not receive the services which m ight enable their children to s afely return home.
e. DCF fails to provide foster pare nts with the necessary supports and services to care for the child ren placed with them. Among othe r things, DCF pays grossly inadequate monthly foster care m aintenance payments, approximately 40% belo w the m inimum level required by federal law.
f. DCF has f ailed to m ake child and family services and f oster care placements equally accessible to children across the state.
7. As the custodian of children in foster care, DCF assumes constitutional
obligations that include protecting children in state care from harm and preserving the children’s
relationships with their parents and siblings whenever safely possible. Furthermore, because it
receives federal funding under Titles IV-B and IV-E of the Social Security Act, as administered
by the United States Department of Health and Human Services (“U.S. HHS”), Massachusetts
must conform to federal laws and regulations concerning the care of children in their custody.
Defendants fail to meet these constitutional and statutory obligations.
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8. DCF has not implemented the reforms necessary to remedy the severe and persistent legal violations within its foster care system, despite its longstanding knowledge of these systemic ills.
9. Defendants fail to exercise professional judgment in their care and protection of Plaintiff Children and, through their actions and inactions, demonstrate deliberate indifference toward the safety and well-being of the children in their custody.
10. Over the last 18 months, Defendants have exacerbated longstanding systemic problems, and aggravated the resulting harm to children, by cutting the child welfare workforce; by failing to provide promised increases in foster care maintenance payment rates; by reducing essential services for children and families; and by decreasing the resources and administrative support necessary to support a full continuum of foster care placements and services.
11. The Plaintiff Children have waited far too long for state officials to meet their constitutional and federal law obligations. They now respectfully seek equitable relief from this Court so that they may experience the safe and nurturing childhoods to which they are entitled.
JURISDICTION, VENUE AND ASSIGNMENT 12. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution and federal statutes. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). 13. Venue is proper pursuant to 28 U.S.C. § 1391(b). The claims arise in this District.
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14. Assignment in the Western Division is proper pursuant to LR.
40.1(D)(1)(b) because a majority of the Named Plaintiffs – Connor B., Adam S., Camila R. and
Rakeem D. – reside in the Western Division:
a. Named Plaintiff Connor B. resides in Hampshire County: Connor was removed from his parental home in Hampshire County and placed into the foster care custody of DCF pur suant to an action commenced by DCF in the Franklin/Ham pshire Counties Division of the Juvenil e Court. The DCF Area Office in Greenfield, Massachus etts handles day-to-day responsibilities on Connor’s case.
b. Named Plaintiff Ada m S. resides in Franklin County: Ada m was removed from his paren tal home in Franklin County and placed into the foster care custody of DCF pur suant to an action commenced by DCF in the Franklin/Ham pshire Counties Division of the Juvenil e Court. The DCF Area Office in Greenfield, Massachus etts handles day-to-day responsibilities on Adam’s case.
c. Named Plaintiff Camila R. resides in Hampden County: Ca mila was removed from her parental hom e in Hampden County and placed in to the foster care custody of DCF pur suant to an action commenced by DCF in the Ha mpden County Division of the Juvenile Court. A DCF Area Office in Springfield, Mass achusetts handles day-to-day responsibilities on Camila’s case.
d. Named Plaintiff Andre S. reside s in Essex County: Andre was removed from his parental hom e in Essex County and placed into the foster care custody of DCF pursuan t to an action comm enced by DCF in the Essex County Division of the Juvenile Court. The DCF Area Office in L ynn, Massachusetts handle s day-to-day responsibilities on Andre’s case.
e. Named Plaintiff Seth T. resides in Norfolk County: Seth was rem oved from his parental hom e in Norfolk County and placed into the foster care custody of DCF pursuant to an action commenced by DCF in the Norfolk County Division of the Juvenile Court. The DCF Area Office in South W eymouth, Massachusetts handles day-to-day responsibilities on Seth’s case.
f. Named Plaintiff Rakeem D. resides in Hampden County: Rakeem was removed from his parental hom e in Hampden County and placed into the foster care custody of DCF pur suant to an action commenced by DCF in the Ha mpden County Division of the Juvenile Court. A DCF Area Office in Springfield, Mass achusetts handles day-to-day responsibilities on Rakeem’s case.
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PARTIES Named Plaintiffs3 Connor B. 15. In early 2007, when Connor B. was six years old, DCF removed him from the care of his mother and took him into foster care custody. Connor was removed, along with his younger sister, because his mother was neglecting his medical care and was exposing her children to risk from a live-in boyfriend who had previously sexually abused his own daughter. 16. Connor, now nine years old, remains in foster care. Since Connor’s removal three years ago, DCF has moved him no fewer than six times among seven different placements spanning four different counties. In addition, he experienced one four-and-one-halfmonth long hospitalization. Connor was moved at least five times in his first year in foster care alone, and he was sexually abused in his very first foster care placement. 17. When DCF first removed Connor from his mother’s home in early 2007, DCF placed him in a foster home along with a 17-year-old boy who had previously received an Assessment for Safe and Appropriate Placement, which is used with youth who have engaged in inappropriate, coercive or aggressive sexual behavior. At the time DCF chose this placement for Connor, DCF knew that the assessment had shown that the teenager posed a serious risk of sexual abuse to others. 18. Despite its knowledge of this threat, DCF did not select another foster home for Connor. Instead, DCF placed Connor in the home subject to a purported “safety plan,” which consisted of installing an alarm intended to monitor the teenager’s access to Connor. The
3 In accordance with LR. 5.3, the identities of the minor Named Plaintiffs have been protected. Because some of the Named Plaintiffs share common initials, pseudonyms have been used to avoid confusion.
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safety plan proved ineffective. Within two months, the teenager began entering Connor’s bedroom at night, and sexually abused him on multiple occasions.
19. Connor told his school principal about the sexual abuse, and the principal reported it to DCF. DCF removed Connor from the foster home and placed him in a “night-tonight” or “hotline” foster home, a form of emergency placement intended for overnight use while an appropriate foster home is being identified.
20. Five days later, Connor was again moved to another foster home, where DCF knew another teenage boy was living. Almost immediately, Connor began to manifest extreme emotional distress, including threatening his foster mother with a knife, setting a fire in his foster home and having an emotional outburst where he knocked over displays at a department store. Within weeks, with his psychological condition rapidly deteriorating, Connor was brought to the hospital.
21. On May 1, 2007, Connor, still only six years old, was admitted to the hospital, where he was placed in a locked psychiatric unit. He lived in various programs within the hospital campus for the next four and one-half months.
22. While hospitalized, Connor received multiple psychiatric evaluations. The hospital pediatric psychiatrist diagnosed Connor as suffering from Post-Traumatic Stress Disorder (“PTSD”) with anxiety and Attention Deficit and Hyperactive Disorder (“ADHD”), and found that his previous foster care placements had damaged him. On two separate occasions, the psychiatrist recommended that, after discharge, Connor be placed in a residential treatment program to stabilize him. She also recommended ongoing individual and specialized therapy. The psychiatrist advised that after stabilizing Connor in a residential placement, DCF should place him in an intensive family foster home, which would provide enhanced case management
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support and services. Hospital doctors also prescribed several psychotropic medications for Connor. These would continue after his discharge.
23. Connor was also evaluated in the hospital by a clinician who specialized in the needs of sexually abused children. This clinician agreed with the conclusions and recommendations of the hospital psychiatrist, including that Connor should be placed in a residential treatment program and that the multiple placements Connor had experienced in less than a year had damaged him.
24. DCF disregarded these multiple clinical recommendations regarding Connor’s placement and service needs and did not place him in a residential treatment program. Instead, on September 13, 2007, DCF moved Connor to a Stabilization, Assessment and Rapid Reintegration (“STARR”) facility, a short-term shelter and/or diagnostic placement for children in DCF custody. Thus, after Connor had spent several months in a hospital setting where multiple diagnostic assessments were completed, DCF inappropriately moved him to a temporary, diagnostic facility.
25. To make matters worse, DCF rushed this move to the temporary facility. DCF did not provide Connor with adequate psychological preparation for his placement change. Furthermore, DCF did not provide the STARR staff with Connor’s complete history or all of his medications.
26. Connor lived at this STARR facility for about six weeks. On October 27, 2007, DCF moved him again, to another STARR facility located approximately 40 miles away from the first facility. The move required him to travel some two hours a day to and from his school.
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27. STARR facilities, such as those where Connor was placed, are generally considered appropriate for no more than 45-day stays. In Connor’s case, he was held in consecutive STARR placements, together lasting four months.
28. The STARR staff, like the psychiatrist and clinician who had assessed Connor at the hospital, recommended that Connor should next be placed in a residential treatment program and should receive ongoing individual and group therapy.
29. DCF again disregarded the clinical recommendation that Connor be placed in a residential treatment program. Instead, on January 17, 2008, DCF moved Connor from the STARR facility to yet another inappropriate facility, a 12-bed group home for boys aged 8 to 13. This facility was not only against clinical recommendation, but also was not age-appropriate, as Connor had only just turned seven.
30. This move was rushed as well. DCF informed Connor of his impending move from the STARR facility to the group home on the very day he was moved. No effort was made to prepare Connor for the move, such as having him visit the group home before the placement. Nor did DCF arrange therapy appointments, school transportation or any medication transfers before subjecting him to this sudden move.
31. The group home where Connor was placed did not provide him with the on-site educational services and intensive therapeutic and stabilization services that had been repeatedly recommended for him in the wake of his sexual abuse. For his first two months in the group home, Connor did not receive any individual therapy. In fact, during the extremely volatile period of Connor’s first eighteen months in foster care, there were extended periods when Connor was not seeing an ongoing, consistent therapist, despite repeated clinical recommendations that such therapy be prioritized.
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32. In July 2009, after eighteen months living in a group home and nearly three years living in foster care, Connor was moved to an intensive family foster home, where he lives today.
33. In September 2008, DCF changed Connor’s permanency goal from reunification to adoption and informed Connor that he would not return home to his mother. However, the actions necessary to free Connor for adoption have not been taken, now almost two years later. Meanwhile, visitation continues with his mother, who recently had a baby girl to whom Connor has begun to feel attached.
34. Connor’s future remains uncertain. His current foster parents have indicated that they do not plan to adopt him, and DCF has no alternative plan to secure a permanent family for Connor. Adam S.
35. Adam S. is 16 years old and has lived nearly half his life in the foster care custody of DCF. Adam has endured repeated, severe physical and psychological abuse in two of the seven or more placements that DCF has chosen for him over his many years in foster care.
36. DCF removed Adam at a very young age from his biological mother’s home due to neglect. At that time, DCF placed him with foster parents in a remote location, away from any immediate neighbors. DCF had approved the couple as both foster and adoptive parents. When Adam was placed with them, they had already adopted two daughters from DCF custody, and had other foster children living in the home. Later, the couple adopted Adam.
37. In October 2003, when he was nine years old, Adam informed his school teacher that his adoptive parents regularly forced him to get down on his hands and knees so they could beat him. DCF investigated and found the evidence insufficient to support removing the adopted children from the home. Nevertheless, DCF and the couple agreed to close the home as
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a foster placement. As a result, DCF caseworkers no longer visited the home. Shortly thereafter, Adam’s adoptive parents pulled him out of school, saying they planned to home-school him.
38. Adam’s adoptive father passed away shortly thereafter. 39. In April 2004, Adam’s older adoptive sister reported to school authorities that their younger adoptive sister had been badly beaten by their adoptive mother the previous day. 40. Initially, after interviewing the mother and the children, the investigators concluded that no abuse had occurred. The older sister, insisting otherwise, produced photographs of her sister’s bruises. With that, DCF removed all three children from the home. 41. Adam’s adoptive mother was subsequently convicted of child abuse. 42. The children later reported that they had been regularly beaten in the home with a large wooden paddle, which their adoptive parents called the “Board of Education.” The psychological impact of this physical abuse persists for Adam. Adam recently asserted that he accepts being hit because he believes that, as he put it, “if they beat me, I will learn.” 43. When Adam and his two sisters were removed from their adoptive mother’s custody, DCF initially placed all three children together in a foster home. Within a week of this placement, Adam threatened to hurt himself and was admitted to the hospital. After this, Adam was never placed with his siblings again, and he has seen them only sporadically since. 44. Adam remained hospitalized in a locked psychiatric unit for approximately two months. 45. On discharge, Adam was moved to an intensive foster home with a young couple who were unable to meet his significant needs. Shortly after Adam was placed with
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them, the foster parents called the police indicating that Adam was displaying uncontrollable behaviors in their home. The police removed Adam, then age ten, from the home and brought him to the police station, where a crisis stabilization team intervened.
46. Adam was admitted to a crisis stabilization unit for treatment. While there, he was prescribed multiple psychotropic medications, including antipsychotic drugs.
47. In late 2004, Adam was moved to a residential treatment program for children ages 6 to 13.
48. At the time DCF placed him in the residential treatment program, which provided on-site schooling, Adam had not regularly attended school for nearly a year.
49. Adam remained in the residential treatment program for approximately four years. Although he had difficulty establishing trusting relationships with his teachers and other program staff, Adam achieved some stability and emotional well-being at the program.
50. When Adam was 13, DCF moved him from the residential treatment program to a foster home. Adam quickly deteriorated in the home, and the foster parents told DCF that they could not handle him.
51. DCF’s next placement for Adam was another residential treatment program. This residential treatment program was primarily designated for youth sex offenders, making it completely inappropriate for Adam, who had never exhibited such behavior.
52. Shortly after this placement, Adam was brutally beaten by a group of teenagers in the program. Adam sustained serious physical injuries, which required hospitalization.
53. DCF investigated the incident and concluded that Adam had been the victim of a “fight club” orchestrated by a staff member at the facility. The staff member was
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later convicted of charges arising from the incident. The facility was subsequently closed, though it is unclear whether the events surrounding Adam in any way informed that decision.
54. During his hospitalization, Adam reported that he had also been repeatedly raped by another boy in the program. Adam said that, when he cried for help, staff would turn up the volume of the television over his pleas. DCF investigated Adam’s reports and concluded that there was no wrongdoing on the part of facility staff.
55. Soon after this hospitalization, DCF moved Adam to another residential treatment program, where he has now lived for almost two years.
56. Because of DCF’s failure to secure Adam’s safety in his placements and to provide him appropriate treatment and case planning services, Adam remains unstable and continues to suffer from extensive behavioral and emotional problems. At age 16, with less than two years before he will age out of foster care, Adam has no prospects for a permanent family, and is in a placement that will not adequately prepare him to live independently as an adult. Camila R.
57. Camila R. is 13 years old and has spent the last two years living in the foster care custody of DCF. In that time, DCF has separated her from her two sisters and moved her more than ten times among at least eleven different placements. Throughout this traumatic period, Camila has not received the educational and mental health services she requires. As a result of the separation from her sisters, repeated moves and the denial of necessary care and services, Camila has suffered multiple emotional traumas and continues to suffer significant harm.
58. Camila and her two sisters were first taken into the foster care custody of DCF in 2001, when Camila was four years old. A DCF investigation had shown that the children had been physically abused in their mother’s home, including being burned with
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cigarettes, beaten and submerged in water. In addition, the girls had endured educational and other neglect in the home, where they were exposed to domestic violence and drug use. Over the course of the year following removal, the three young girls were moved among at least three different homes before DCF returned them to their mother’s custody.
59. In 2006 and early 2007, DCF began receiving new reports that Camila and her sisters were missing school, and that physical abuse and neglect were occurring in the home. DCF investigated these reports but, after three months, closed the investigation and stopped visiting the home.
60. In late 2007 and early 2008, DCF again received reports that Camila and her two sisters were not attending school and that Camila’s older sister had been physically abused in the home. DCF opened a case and provided the family with some referrals for services.
61. In late January 2008, Camila’s mother told DCF that she was unable to care for Camila’s older sister and voluntarily surrendered her to the foster care custody of DCF. Camila was not removed from the home at that time.
62. In June 2008, when Camila was 12 years old, DCF again removed her from her mother’s home and took her into foster care custody. The reasons for this removal were physical abuse, ongoing educational neglect and domestic violence in the home. At the same time, DCF removed Camila’s younger sister.
63. DCF placed Camila and her sister in a foster home. Almost immediately, 12-year-old Camila ran away to try to find her older sister, from whom she had been separated for nearly six months.
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64. Camila made contact with her DCF caseworker shortly thereafter, and DCF placed her in a different foster home, where she remained for several months.
65. In fall 2008, DCF referred Camila for a psychological evaluation. She was diagnosed with PTSD, depression and anxiety, and therapy was recommended. DCF referred Camila for therapy, but she did not in fact meet with a therapist until fall 2009, nearly a full year later.
66. This year-long delay in providing Camila therapy occurred for a number of reasons. DCF initially failed to confirm whether Camila’s foster parents had actually scheduled Camila’s prescribed in-home therapy appointments. Later, DCF failed to transport Camila to out-of-home therapy appointments when her foster parents were unwilling or unable to do so. Further delays can be attributed to Camila’s multiple placement moves; to wait lists for therapy appointments; to switches in therapists; and to poor communication between DCF and provider agencies.
67. As a result, Camila did not receive the therapy she required during an acutely traumatic period in her life, and her situation deteriorated.
68. During the fall of 2008, Camila was regularly suspended from school, and spent these days in either in-school suspension or the DCF office. At around the same time, Camila began experiencing problems in her foster home, and DCF moved her to another foster home.
69. In January 2009, DCF learned that Camila was failing most of her classes, due in part to the repeated absences resulting from her suspensions.
70. In early March 2009, DCF moved Camila yet again, placing her in a nightto-night foster home. She remained there for the weekend while DCF sought out a longer-term
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placement. This placement search resulted in DCF returning Camila to a foster home that had previously failed. DCF did not make a sufficient effort to determine whether the caretaker could meet Camila’s needs any better than before. DCF also failed to provide any additional services to Camila or the foster home that might have stabilized her or improved a placement situation that had failed once already.
71. By the end of March 2009, the school had informed DCF that Camila would most likely fail sixth grade. Three months after learning this information, and five months after learning that Camila was failing most of her classes, DCF finally requested that Camila’s school evaluate whether she presented special education needs. This evaluation confirmed those needs and that Camila required special education services. Having removed Camila from her mother due in part to educational neglect, DCF failed to secure an assessment of Camila’s educational needs until nearly a year after her removal, undermining, if not altogether halting, her education.
72. By June 2009, Camila’s foster parents had told DCF that they no longer wanted Camila in their home. DCF moved her from this home for the second time, placing her in another night-to-night foster home. Almost immediately, she ran away to her sister’s foster home.
73. DCF next placed Camila in a STARR facility for two weeks, and then into another foster home.
74. Three months later, Camila’s foster mother, unable to meet Camila’s needs, requested that DCF remove Camila from the home.
75. At this time, DCF moved Camila to a time-limited (six-week) intensive foster home. As an intensive foster care placement, the foster home received additional case
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management support and services for Camila and the foster parents. Camila adjusted well to this home and showed marked improvement at school while living there. Nevertheless, once the sixweek time period elapsed, DCF immediately withdrew the intensive services and returned Camila to basic foster care.
76. Camila began a sharp downward spiral. She ran away from the new foster home almost immediately. Over the next several months, DCF moved Camila through one basic foster home after another, with Camila running away from each one. Each time she returned, DCF simply placed her in a new foster home without adequately assessing whether or not it could meet her needs and without implementing supports and services designed to address those needs.
77. Recently, DCF reversed course and returned Camila to an intensive foster care setting, where she now lives.
78. DCF’s permanency goal for Camila is “guardianship with kin.” However, in Camila’s two years in foster care, DCF has never placed her with kin, or even started visitation for her with any potential kin guardians. Camila has no other current prospects for a permanent family, either through adoption or guardianship. Andre S.
79. Andre has grown up as a child of the Massachusetts foster care system. DCF removed him from his mother’s custody more than twelve years ago when he was just three years old. Now fifteen, Andre is fast approaching adulthood without ever having had a stable family. Though Andre has eleven siblings, and a large extended family that might provide adult connections for him, DCF has not taken the necessary actions to preserve any of these family relationships, and Andre is largely disconnected from his family today.
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80. In January 1998, when Andre was three years old, DCF removed him and his younger sister from the custody of their mother due to severe neglect. Less than one year later, in September 1998, DCF changed Andre’s permanency goal from reunification to adoption because his parents stopped appearing for scheduled visits and demonstrated no significant interest in regaining custody.
81. Eighteen months later, in February 2000, the parental rights of Andre’s mother and father were terminated.
82. Over the course of the next ten years, DCF has not found a permanent home for Andre. Instead, DCF has exposed Andre to at least six different foster care placements, largely ill-suited to meet his needs.
83. DCF initially placed Andre and his sister in a maternal aunt’s home without taking adequate steps to determine the needs of the children and the capacity of their aunt to meet those needs. Only a few weeks later, Andre’s aunt informed DCF that she could not handle the children. At that juncture, DCF failed to make any meaningful effort to maintain the children in their aunt’s home by providing additional supports to the aunt and services to the children. Instead, in February 1998, DCF simply moved Andre and his sister to another foster home, where the children lived for the next ten months.
84. In October 1998, DCF briefly moved Andre and his sister into a preadoptive trial placement. When the pre-adoptive parents chose not to adopt Andre and his sister, DCF returned them to their prior foster home.
85. In August 2000, DCF placed both Andre and his sister into another kinship foster home, this time with a paternal cousin.
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86. Soon after arriving in the home, Andre, then six years old, began to exhibit aggressive and sexualized behaviors. DCF removed Andre from the home in November 2000 and hospitalized him for two months. During this time, Andre’s sister remained with the paternal cousin, and she was later adopted by another family.
87. Upon Andre’s discharge from the hospital in January 2001, DCF placed him in an intensive foster home. Eight months later, DCF moved Andre out of the home after his foster mother reported that she had observed Andre exhibiting sexualized behaviors toward other children.
88. In September 2001, DCF placed Andre, then age seven, into a residential treatment program – and left him there for five years.
89. When DCF placed him there, the program knew that Andre had exhibited inappropriate behaviors toward other children, suggesting that Andre had been the victim of sexual abuse. However, Andre did not receive treatment specifically targeted to address these issues.
90. In January 2002, DCF received further information supporting the already substantial evidence of Andre’s need for sexual abuse treatment. DCF investigated and confirmed that Andre’s sister, while still living in the home of the children’s paternal cousin, was the victim of abuse and neglect. DCF referred Andre’s sister for a sexual abuse evaluation. During her evaluation, Andre’s sister disclosed that she and Andre had engaged in inappropriate sexual contact with one another when they had lived together in the kin home. The clinician who conducted the sexual abuse evaluation credited her report, and indicated that it was imperative that Andre also receive a sexual abuse evaluation and any necessary treatment.
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91. Following this recommendation, and indeed for his remaining four years in the residential treatment program, Andre was never evaluated for sexual abuse or given any form of specialized treatment to meet this critical need.
92. When in 2005 DCF considered abandoning the goal of adoption for Andre, Andre’s attorney insisted on Andre’s behalf that a clinical assessment be provided to determine whether such a revised permanency plan was appropriate. Among its findings, the adoption assessment indicated that it was strongly suspected that Andre had been the victim of sexual abuse. The assessment recommended that adoption should remain Andre’s goal. It advised that, since Andre had not resided outside an institution for three years, he should first be transitioned to an intensive foster care home, and, when ready, to a pre-adoptive home.
93. In June 2006, DCF finally moved Andre, then twelve, out of the residential treatment program. At that time, however, DCF placed Andre into yet another residential facility. Unlike the first institution, this residential program operated a “step down” placement model that, consistent with the recommendations of the assessment, could prepare him to transition and to successfully live in a family home.
94. Eighteen months later, in December 2007, the program initiated visits between Andre and potential foster parents so that Andre could establish a relationship with them over time before he was moved to live with them.
95. In June 2008, after Andre had lived in residential facilities for almost seven years, DCF moved him to live with these foster parents. Nearly two years later, Andre still resides in this intensive foster home.
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96. In late 2008, DCF changed Andre’s permanency goal from adoption to “permanency through placement with kin.” Yet, DCF has not taken any meaningful steps to find kin that are willing and able to provide permanent care for him.
97. Andre continues to express a desire to be adopted or placed in a guardianship arrangement. In Andre’s twelve years in foster care and ten years of being legally freed for adoption, DCF has not found him a permanent nurturing family home. Seth T.
98. Seth has lived in DCF foster care for five of his thirteen years. In April 2005, DCF removed Seth, then just eight years old, and his two brothers from their mother due to a finding of neglect. By December 2006, DCF had changed Seth’s permanency goal to adoption and obtained a court order terminating the parental rights of his mother. Yet, as of now, over three years later, Seth remains in DCF custody.
99. During his first sixteen months in its custody, DCF moved Seth between five different foster care placements. Thereafter, since August 2006, Seth has lived in an intensive foster home with foster parents who have stated they are not available to act as his legal guardians because they need the supports DCF provides to high-needs children in foster care like Seth. Nearly five years after Seth’s removal from his mother, DCF has failed to secure an adoptive or other form of permanent family for him, though potential adoptive parents recently have taken interest in Seth.
100. Since taking action to free Seth for adoption in 2006, DCF has not adequately developed or implemented a child-specific recruitment plan tailored to locate a permanent family for Seth. Moreover, although Seth’s paternal grandparents early on expressed their interest in providing a home for Seth, DCF failed to fully explore this kinship option either for purposes of a temporary placement or as a potential permanent home.
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101. Beyond its failure to provide timely and competent permanency planning for Seth, DCF failed to take the necessary steps to preserve Seth’s relationships with his brothers. After changing Seth’s permanency goal to adoption, DCF reduced the frequency of Seth’s visits with his two brothers to six per year, in disregard of a clinical finding that it would be harmful to Seth and his brothers not to have adequate visitation to maintain their relationships. The visits with his older brother were subsequently reduced even further, to only four per year, when the brother secured a permanent placement with a legal guardian living out of state. Seth struggles to cope with the separation from his siblings and the uncertainty of temporary foster care.
102. DCF removed Seth and his brothers from his mother’s care in 2005, after finding the family home unsanitary and receiving a report that Seth had been left alone unsupervised. Seth’s mother, grappling with mental health issues at that time, was overwhelmed managing the care of her three sons, all of whom had learning disabilities. Seth, in particular, exhibited difficult behaviors which his mother believed stemmed from past sexual abuse by one of her ex-boyfriends.
103. DCF first placed Seth, eight years old, in a residential treatment program to stabilize his behaviors. Shortly thereafter, Seth’s paternal grandparents expressed their desire to take care of him. DCF declined to even conduct a home study of this potential kin placement.
104. A clinical assessment of Seth completed two months later, in June 2005, recommended that Seth be placed in intensive foster care with his older brother. DCF never placed Seth with his older brother as recommended.
105. Instead, in August 2005, Seth was moved to a therapeutic foster home with his younger brother. Within a month, Seth acted out sexually with this brother and was for that reason moved to a different therapeutic foster home, apart from all of his siblings.
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106. When Seth was eight years old, DCF assigned Seth a permanency goal of “long-term substitute care.” This is generally considered to be an inappropriate permanency goal for an eight-year-old child. When reunification appears unsafe or impractical, DCF should provide some other permanent arrangement for the child. Here, DCF instead relegated eightyear-old Seth to long-term foster care – an unacceptable option.
107. In June 2006, after Seth’s then-current foster parents complained about his erratic behavior, DCF moved Seth to a STARR facility.
108. In August 2006, Seth was moved to the family foster home where he still lives.
109. In September 2006, DCF changed Seth’s permanency goal from long-term substitute care to adoption, and petitioned for termination of Seth’s mother’s parental rights. His visits with his mother were reduced from every other week to four per year, with the visits taking place in a DCF office for two hours each.
110. Having entered foster care at age eight, Seth has reached his teen years having spent more than a third of his life in temporary foster placements, with no permanent family and minimal contact with his siblings. Rakeem D.
111. Rakeem is a 15-year-old youth who has spent his last two and one-half years in DCF foster care. His foster care experience has been marked by an absence of thoughtful case planning by DCF, resulting in Rakeem’s life being unstable and lacking in basic safety.
112. Since entering foster care, Rakeem has consistently expressed his desire to live with family. At first, Rakeem asked to live with his grandmother. Following his
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grandmother’s death in October 2008, Rakeem repeatedly requested that DCF place him with other family members. DCF has never placed Rakeem with family.
113. Instead, DCF has placed Rakeem in a series of stranger foster homes and group facilities. These placements have failed to meet his emotional and educational needs and have contributed to his sense of isolation. As a result, Rakeem has run away from several of these placements, repeatedly running to his grandmother’s house. Each time Rakeem has returned to DCF’s care, DCF has failed to make appropriate adjustments to his case plan in order to stabilize him and better meet his needs.
114. Over the past two and one-half years, DCF has moved Rakeem through at least eight different placements, cycling him through some more than once. At present, DCF has failed to secure even temporary stability for Rakeem, much less to establish a permanency plan tailored to meet Rakeem’s wishes for his own life. Rakeem, therefore, remains without any stable relationship or home environment, with adulthood just over two years away.
115. During the over two years of constant instability that resulted from DCF’s poor case management, Rakeem’s educational progress has also suffered. Although he entered foster care due in large part to educational neglect, DCF has never adequately addressed this issue, despite multiple requests from Rakeem’s court-appointed educational surrogate parent and others for DCF to do so.
116. DCF removed Rakeem and his three siblings from their home and took them into foster care in November 2007, when Rakeem was 13 years old, , primarily due to educational neglect. The four children were immediately separated and have never again lived in the same home.
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117. Rakeem’s first foster care placement was an intensive foster home. From the very start of this placement, Rakeem repeatedly told his caseworker that he wanted to live with his grandmother. Additionally, he asked why he was being denied the chance to spend time with friends. The caseworker told Rakeem that he would not have free time outside the home for at least a period of three weeks. She also explained that he would not be placed with his grandmother, leaving Rakeem sad, frustrated and alone.
118. By January 2008, Rakeem continued to feel confined in the foster home because of the restrictions placed on the time he could spend with family and friends. At this point, Rakeem was allowed recreational time outside of the foster home for just three hours a week.
119. Though dissatisfied with his foster home, Rakeem nevertheless was making an effort to adjust. At a January 17, 2008 foster care review, his private agency caseworker observed that Rakeem was doing well in the foster home. This caseworker also shared that Rakeem continued to express a strong desire to live with his grandmother.
120. After three months, in February 2008, DCF moved Rakeem to another intensive foster home, where he remained until approximately May 2008. As of late April, Rakeem’s caseworker observed that Rakeem was doing well in the new foster home, but that his school attendance had become a problem. Just two weeks later, Rakeem’s caseworker observed that he was doing better than he ever had since removal from his mother. Nevertheless, the caseworker, in an effort to persuade Rakeem to attend school and keep his curfew, had also advised him that he might be moved into a residential facility if his behavior at school and outside the home did not improve.
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121. At the end of May 2008, Rakeem, then age fourteen, ran away from his foster home. He was missing for nearly a month. Though DCF believed that he had run to live at his grandmother’s house, DCF made minimal efforts to find Rakeem.
122. One month later, after Rakeem was found, DCF placed him in a STARR facility. While there, Rakeem continued to question why he could not live with his grandmother. Several weeks after his placement in the STARR, Rakeem was informed by his caseworker that, due to his behaviors, DCF had decided that placement in a residential program outside of his home city would be best for him. Rakeem became very upset. He ran away from the STARR within 30 days.
123. In late September 2008, after Rakeem had once again been located, DCF moved him to a Behavioral Treatment Residence (“BTR”), a group care facility that provides onsite therapeutic treatment. The BTR that DCF chose for Rakeem was approximately 50 miles away from his family, including his mother, grandmother and siblings.
124. Within days of this placement, Rakeem’s grandmother died. DCF did not permit Rakeem to attend her funeral.
125. DCF changed Rakeem’s permanency goal from reunification with his mother to “permanency through placement with kin” in October 2008. Yet, four months later, Rakeem was still living at the BTR far from his family home, and DCF had yet to take any meaningful steps to locate or evaluate an appropriate kin placement for him.
126. In early February 2009, DCF met with BTR and other private agency staff, along with Rakeem, to discuss his case. At the meeting, a private agency indicated that it would be willing to provide transportation so that Rakeem could visit his mother and siblings on a
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weekly basis. DCF rejected this offer, indicating that increased visitation would not be considered until Rakeem’s behavior improved.
127. Rakeem ran away from the BTR that afternoon and was discovered, approximately three weeks later, back in the city where his family lives.
128. In early March 2009, DCF placed Rakeem at a BTR in his home city. Rakeem lived at the BTR for nearly seven months. Although he periodically ran away, he was running for shorter periods of time and less often, which the program recognized as progress. While at the BTR, he achieved stability and a measure of happiness. He became more engaged at school and focused in his activities.
129. In late September 2009, DCF moved Rakeem again. 130. Rakeem ran away less than a month later and was missing for the next several months. 131. On January 6, 2010, Rakeem resurfaced at school. The school called DCF, and Rakeem was brought to the DCF office. While he was there, he again implored DCF to place him with family. When DCF refused, he ran from the DCF office. 132. On January 25, 2010, Rakeem again resurfaced at school, which informed DCF of his return. DCF then placed Rakeem in a foster home, which he ran away from shortly thereafter. 133. Since then, Rakeem returned again and DCF placed him in another STARR facility, where he currently resides. Named Plaintiffs, Collectively 134. 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
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professional judgment regarding the Named Plaintiffs’ constitutional and statutory rights by failing to provide necessary services and appropriate placements for them; by failing to make periodic comprehensive assessments of their needs and providing services consistent with those needs; by failing to make timely and meaningful casework contacts 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 pay foster care maintenance payments on their behalf that cover the reasonable costs of caring for them; by failing to support their family relationships, in particular by not providing child-parent and sibling visits; by failing to provide appropriate management and supervision while they have been in DCF custody in accordance with their individual needs, best interests and professional standards; 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.
Next Friends 135. Named Plaintiff Connor B. appears by his next friend, Rochelle Vigurs. Ms. Vigurs served as Connor’s Court-Appointed Special Advocate in the Hampshire County Juvenile Court for approximately one year. She knows Connor personally, generally knows the issues regarding his foster care custody described here and is suited to represent his best interests in this case. She maintains her principal residence in South Worthington, Massachusetts. 136. Named Plaintiff Adam S. appears by his next friend, Denise Sullivan. Ms. Sullivan provides regular consultation as an educational advocate and surrogate and frequently
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serves the best interests of children as a court-appointed guardian ad litem in Massachusetts. Adam has expressed a desire to be a Named Plaintiff, and Ms. Sullivan is suited to represent his best interests in this case. She maintains her principal residence in Chicopee, Massachusetts.
137. Named Plaintiff Camila R. appears by her next friend, Bryan Clauson. Mr. Clauson serves as Camila’s court-appointed educational surrogate parent. In that role, Mr. Clauson has advocated, and continues to advocate, for Camila’s educational rights and, for that purpose, has maintained contact with Camila, as well as with her assigned DCF caseworker. He knows Camila personally, generally knows the issues regarding her foster care custody described here, and is suited to represent her best interests in this case. Mr. Clauson is a licensed attorney in Massachusetts and maintains his principal office in Springfield, Massachusetts.
138. Named Plaintiff Andre S. appears by his next friend, Julia Pearson. Ms. Pearson serves as Andre’s court-appointed counsel in his care and protection proceeding pending in the Essex County Division of the Juvenile Court. In that role, she maintains contact with her client as necessary to discharge her obligations as his counsel. She knows Andre personally, generally knows the issues regarding his foster care custody described here, and is suited to represent his best interests in this case. Ms. Pearson is a licensed attorney in Massachusetts and maintains her principal office in Roxbury, Massachusetts.
139. Named Plaintiff Seth T. appears by his next friend, Susan Kramer. Dr. Kramer is suited to represent Named Plaintiff Seth’s best interests, and Seth wishes Dr. Kramer to appear for him in this case. Dr. Kramer is an instructor in Psychology at Bristol Community College and has served as a foster parent for DCF since 2006. She maintains her primary residence in Dartmouth, Massachusetts.
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140. Named Plaintiff Rakeem D. appears by his next friend, Bryan Clauson. Mr. Clauson serves as Rakeem’s court-appointed educational surrogate parent. In that role, Mr. Clauson has advocated, and continues to advocate, for Rakeem’s educational rights and, for that purpose, has maintained contact with Rakeem, as well as with his assigned DCF caseworker. He knows Rakeem personally, generally knows the issues regarding his foster care custody described here, and is suited to represent his best interests in this case. Mr. Clauson is a licensed attorney in Massachusetts and maintains his principal office in Springfield, Massachusetts.
Defendants 141. Defendant DEVAL L. PATRICK is Governor of the Commonwealth of Massachusetts and is sued solely in his official capacity. Pursuant to Part II, Chapter II, Section 1, Article 1 of the Constitution of the Commonwealth of Massachusetts, the executive power of the Commonwealth is vested in the governor. Under M.G.L. c. 6A §§ 2 and 4, the governor has the ultimate authority to direct and control the operation of EOHHS and DCF. Governor Patrick currently maintains his principal office at the Massachusetts State House, Office of the Governor, Room 280, Boston, Massachusetts, 02133. 142. Defendant JUDYANN BIGBY is the secretary of EOHHS and is sued solely in her official capacity. EOHHS is created under M.G.L. c. 6A § 2 and under M.G.L. c. 6A § 16 and is vested with the duty to administer the Commonwealth’s human services programs, including the child welfare operations of DCF. Pursuant to M.G.L. c. 6A § 3, the secretary is the head of EOHHS and is appointed by the governor. Secretary Bigby currently maintains her principal office at One Ashburton Place, 11th Floor, Boston, Massachusetts 02108. 143. Defendant ANGELO MCCLAIN is the commissioner of DCF and is sued solely in his official capacity. DCF is created under M.G.L. c. 18B § 1 and is vested with the duty to administer a “comprehensive child welfare program for children and families.” Pursuant
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to M.G.L. c. 18B § 6, the commissioner is the executive and administrative head of DCF, and is appointed by the secretary of EOHHS, with the approval of the governor. Commissioner McClain currently maintains his principal office at 24 Farnsworth Street, Boston, Massachusetts 02210.
144. DCF maintains six regional offices that oversee day-to-day operations at 29 Area Offices located throughout the state. Leadership and administrative duties for DCF are guided by its Central Office, located in Boston.
145. As of September 30, 2009, DCF had 8,413 children in its foster care custody.
CLASS ACTION ALLEGATIONS 146. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 147. The class is defined as all children who are now or will be in the foster care custody of DCF as a result of abuse or neglect. 148. The class of approximately 8,500 children is sufficiently numerous to make individual joinder impracticable. 149. The questions of law and fact raised by the Named Plaintiffs are common to and typical of the putative class they seek to represent. Each child relies on Defendants for child welfare placement, services and permanency, and is dependent on Defendants for his or her basic safety and well-being. Each child is being harmed, or is at risk of being harmed, by the systemic deficiencies within the Massachusetts foster care system. 150. Questions of fact common to the class include:
a. whether Defendants fail to provide Plaintiff Children safe, appropriate and stable foster care placements as required by law and by reasonable professional standards;
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b. whether Defendants fail to provide Plaintiff Children with tim ely and appropriate services an d care nece ssary to keep them safe and to prevent them from deterioratin g physically, psychologically or otherwise while in state custody as required by law and by reasonable professional standards;
c. whether Defendants fail to provide Plaintiff Children with tim ely and appropriate services nece ssary to ensure that they are either safely reunited with the ir families when appropriate or, when that is not possible, promptly freed for adopt ion and placed with a perm anent family as required by law and by r easonable professional standards; and
d. whether Defendants fail to provide Plaintiff Children with the supports necessary to maintain family relationships including the pro vision of child-parent visits and sibling visits, as required by law and by reasonable professional standards.
151. Questions of law common to the class include:
a. whether Defendants’ actions and in actions violate Plaintiff Children’s substantive rights under the due pro cess clause of the F ourteenth Amendment to the United Sta tes Constitution to be f ree from harm while in state custody;
b. whether Defendants’ actions and in actions violate Plaintiff Children’s rights to fam ily association under the First, Ninth and Fourteenth Amendments to the United States Constitution;
c. whether Defendants’ actions and in actions violate Plaintiff Children’s rights under the Adoption Assistan ce and Child W elfare Act of 1980 (“AACWA”), as amended by the Adoption and Safe Families Act of 1997 (“ASFA”), and relevant federa l regulations to tim ely adoption and adequate foster care maintenance payments; and
d. whether Defendants’ actions and in actions violate Plaintiff Children’s procedural rights not to be deprived of legal entitlements – including (i) the rights in relation to “placement of children in priva te families; early and periodic screening, dia gnostic and treatm ent standards; individualized health care plan” as provided in M.G.L. c. 119 § 32; (ii) the right to a “medical passport” as set forth in 110 CMR § 7.124; (iii) the rights to sibling visitation as provided in M.G.L. c. 119 § 26B(b), (d); and (iv) the right to be consid ered for placem ent with relatives, other adult persons who have played significant positive roles in th e child’s life, and any mi nor siblings or half-siblings, as provided in M.G.L. c. 119 § 23(c) – without a meaningful opportunity to be heard
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under the due process cl ause of the Fourteen th Amendment to the United States Constitution. 152. The Named Plaintiffs will fairly and adequately protect the interests of the entire class of Plaintiff Children. 153. The violations of law and resulting harms averred by the Named Plaintiffs are typical of the legal violations and harms suffered by all class members. 154. 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. 155. Plaintiff Children are represented by attorneys employed by Children’s Rights, a non-profit legal organization whose attorneys have substantial experience and expertise in child welfare institutional reform class actions; and Nutter McClennen & Fish, LLP, a private law firm located in Boston, Massachusetts with extensive experience in complex civil litigation. 156. Plaintiff Children’s attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the class. 157. Defendants have acted or failed to act on grounds generally applicable to all Plaintiff Children, necessitating declaratory and injunctive relief for the class. Plaintiff Children’s counsel knows of no conflicts among class members.
GENERAL ALLEGATIONS I. DEFENDANTS ARE CAUSING HARM TO CHILDREN IN FOSTER CARE
158. DCF is causing harm to children in its foster care custody in the following ways:
a. it fails to protect children from abuse and neglect in foster care; b. it unnecessarily moves children among multiple f oster care
placements;
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c. it places children in u nsuitable or inappropriate foster homes that cannot properly care for them;
d. it fails to reunify children with their families safely, or to provide them with an ado ptive or other permanent family when it f inds that saf e reunification is not possible; and
e. it fails to provide needed m edical, dental, m ental health, educational and other services necessary for children’s safety, perm anency and well-being.
159. DCF thereby violates the constitutional and federal statutory rights of the Plaintiff Children.
160. DCF and state officials have long been aware of these systemic failings and the resultant harm to vulnerable children. Since 2000, DCF has undergone two federal performance audits of its child welfare system, known as Child and Family Services Reviews (“CFSR”). These reviews are conducted by U.S. HHS to assess the performance of a child welfare system, including the outcomes achieved for children, to identify areas in which systemic improvement is required to assure appropriate outcomes for children, and to implement corrective actions on performance areas found to be deficient. Both federal audits revealed myriad areas in which the DCF foster care system was causing harm to the children under its care.
161. The CFSR process includes two categories of performance measures relating to outcomes for children. First, the performance of the audited system across the entire population of children served is evaluated in relation to six safety and permanency indicators based on a national database of child welfare outcomes. Second, a randomly selected set of child case files from the audited system is reviewed by federal auditors and assessed in relation to seven safety, permanency and well-being outcome measures.
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162. The first CFSR audit of DCF took place during the week of July 23, 2001, and determined that DCF failed to conform to federal expectations in each of the six safety and permanency indicators and in each of the seven safety, permanency and well-being outcome measures. Six years later, during the week of July 23, 2007, DCF underwent its second round CFSR audit. The federal government then determined that DCF still failed to conform to federal expectations in all six safety and permanency performance indicators, and also failed to meet six of the seven safety, permanency and well-being outcome measures.
163. Notwithstanding an almost nine-year opportunity to improve systemic performance since its first CFSR audit, DCF continues to place children at significant risk of harm. As to even the most fundamental obligation of a child welfare system – protecting children from further abuse and neglect – DCF performance has actually declined since the 2001 CFSR. DCF has not and is not acting with sufficient urgency to meet its constitutional and federal obligations.
A. Defendants Fail To Protect Children From Abuse And Neglect In Foster Care 164. Maltreatment of children in foster care has been a significant problem in
Massachusetts for years. According to federal data, DCF ranked 4th worst in the rate of child maltreatment in foster care among the 47 states reporting on this safety element in calendar year 2008; 7th worst among the 45 states reporting in 2007; 4th worst among the 46 states reporting in 2006; 2nd worst among the 43 states reporting in 2005; and 3rd worst among the 37 states reporting in 2004.
165. Fully aware of this history of high rates of abuse or neglect in foster care, Defendants are failing to implement the changes required to protect children in foster care from maltreatment. During 2009, an average of five children in foster care per week were the victims
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of abuse or neglect by their foster care providers. In DCF’s Child Welfare Act Reports, Fiscal
Year 2009, Defendants reported a rate of maltreatment in foster care that exceeds the federal
CFSR expectation for child safety by nearly 400%. Between 2008 and 2009, the overall rate of
substantiated abuse or neglect in foster care increased by 13%.
166. The high rate of maltreatment in care in Massachusetts is an inevitable
result of a system burdened with high caseworker caseloads, inadequate caseworker and
supervisor training, poor caseworker-child visitation practices and an inadequate array of
appropriate foster homes and attendant support services.
167. The problem of child maltreatment in Massachusetts foster care has
received wide publicity, including, inter alia:
a. On March 6, 2005, four-year-old Dont el Jeffers died after he was tied to a radiator by his foster mother, tortured for days, and kicked so hard that his bladder burst.
b. In April 2006, four-y ear-old Isaiah Barboza was hospitalized for second-degree burns from his waist to his toes after being exposed to scalding water while under the supervision of his foster mother.
c. On April 6, 2008, fourteen-year-old Acia Johnson died in an arson fire in her b iological mother’s home. The f ire was set by the mother’s lover. DCF had previously rem oved Acia from that hom e due to domestic violence, among other things. Acia resided in multiple foster homes following her removal by DCF and, at the tim e of the fire, was placed with her grand mother for tem porary foster care. Due to inadequate supervision and oversight by DCF, Acia was able to leave her grandmother’s home and move back into the ho me of her biological mother, where she died. DCF claim ed it had no idea that the mother had taken the child b ack into her hom e, even though DCF had received continued reports of abuse and neglect by the m other, including one alleging that the mother had been chasing Acia’s brother around the house with a hamm er. In Decem ber 2008, the Massachusetts Office of the Child Advocate concluded that DCF had failed to perf orm even the m ost rudimentary checks when investigating these reports.
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d. In January 2009, a four-year-old boy was severely burned with a hairstraightening iron by his foster mother; this injury was so serious that it required skin graft surgery.
B. Defendants Unnecessarily Move Children Among Multiple Foster Care Placements 168. Multiple foster care placements harm children. The DCF Practice Point
for Trauma-Informed Casework Practice states:
Every move may be experienced by the child as another traum atic event, regardless of the reason fo r the m ove. Stability in living situation is a foundation to permanency. Instability of placement, multiple moves, and ou r inability to achieve tim ely permanency can increase a child’s sense of anxiety and heighten a child’s feelings of insecurity or ‘not belonging.’ 169. As recognized by DCF in its Child and Family Services Plan for FY2010–
FY2014:
Multiple moves disrupt a child’s ab ility to maintain connections with family and/or to develop the connections they need for positive emotional, social growth. Instability in placem ent also significantly impacts a child’s edu cational achievement. Research has shown that the m ore frequently a child m oves subsequent to a home removal, the longer it is before they are able to retu rn home and the less likely they are to progress in their education. 170. Beyond the obvious changes in home environment and primary caretaker,
placement moves often result in changes in a child’s caseworker, therapist and other service
providers, school and friends, as well as in the frequency or nature of family visitation.
171. DCF moves children among foster care placements at a rate that places
Massachusetts among the eight worst foster care systems in the country in terms of placement
stability. According to federal data from the July 2007 CFSR, 51.4% of children who had been
in Massachusetts foster care for one to two years had experienced three or more placements, and
77.5% of children in foster care for more than two years had experienced three or more
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placements. Even within the first twelve months of their placement into foster care, 28.1% of children in DCF custody had already experienced multiple placement moves in 2007.
172. Thousands of children in DCF custody have been through five or more placements.
173. Of the 812 youth who aged out of state foster care in 2005, DCF had subjected 319 of them to ten or more placements.
174. The frequency of moves for children in DCF foster care is an inevitable result of a system with an inadequate array of suitable foster homes, ineffective matching between children and foster homes, and a lack of services, specialized programs and financial supports to enable foster parents to manage child needs.
C. Defendants Place Children In Unsuitable Or Inappropriate Foster Homes Unable To Properly Care For Them 175. DCF harms children by selecting foster homes that are ill-suited and ill-
equipped to meet their needs. For example, DCF placed: a child who only speaks English in a home where English is not spoken; a toddler with foster parents who specifically requested teens and were unable to provide the daycare needed for younger children; an asthmatic child in a home with smokers; and a gay teen in a home intolerant of differences in sexual orientation.
176. DCF also harms children by making inappropriate decisions regarding residential and group placements. Due to the trauma they have experienced, some children are unable to live in an intimate family setting without prior therapeutic intervention and stabilization. For these children, temporary placement in a more structured congregate setting is often clinically recommended.
177. Defendants frequently do not follow clinical recommendations that a child be placed in a more restrictive and structured foster care setting such as a residential treatment
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center. Conversely, Defendants too often fail to return children placed in residential care to more family-like settings when they are ready.
178. Some children present needs that do not require residential care, but nonetheless require supports that are not available in basic family foster care. For these children, DCF procures, through private providers, an array of “intensive” foster care homes, which provide additional case management support and services. However, DCF fails to consistently make appropriate decisions regarding when to place or keep a child in an intensive foster care home.
179. Given its inadequate number and array of foster care placements, DCF also experiences an elevated rate of children running away from foster care placements that fail to meet their needs. Though the national rate for youth “on the run” is approximately 2% of the foster care population, DCF experienced rates as high as 4 to 7% in numerous regions of the state in state fiscal year 2008. The DCF Area Office for Springfield reported a rate of 7% in state fiscal year 2008 and 9% the preceding year – 350 to 450% of the national average. DCF has failed to implement meaningful programmatic or policy solutions to address this serious safety threat.
180. This poor decision making is an inevitable result of a system with overwhelmingly high caseloads, poor caseworker training and supervision and an overarching lack of organizational and individual accountability to assure acceptable results for children.
D. Defendants Fail To Provide Children With Permanent Families As Soon As Safely Possible 181. Foster care is intended to be temporary. Children who do not grow up in
stable family environments are less likely to complete their education, to form healthy relationships or to be otherwise prepared to live healthy, satisfying adult lives. Accordingly,
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professional standards provide that foster children should be placed in permanent, safe, loving homes as quickly as possible, whether with their parents or with an adoptive family.
182. Plaintiff Children are frequently harmed because DCF permits them to languish for years in foster care. As of September 30, 2009, DCF reported that 2,038 children had remained in foster care for two to four years, and 1,594 for more than four years.
1. Defendants Fail To Safely Reunify Children With Their Families 183. Federal and state law provide that DCF must, in the first instance, make a reasonable effort to preserve family relationships. After a child is removed from home due to abuse or neglect, federal law and policy dictate that the preferred course of action is to reunify the child with his or her parents. Reunification, however, is only appropriate where the reason for removal has been addressed through appropriate services to the family so that child safety is assured. 184. Children reunified with their families by DCF too often re-enter foster care due to further abuse and neglect. Failed reunifications cause harm to children both as a result of additional maltreatment and the trauma that accompanies repeated family separation. 185. DCF returns a significant number of children in foster care to their parents without taking adequate measures to assure the children’s safety. According to federal data from the 2007 CFSR, 15.7% of children in DCF foster care who had been returned to their families reentered foster care within 12 months. DCF subsequently reported a re-entry rate of 16% for children who were reunified with their families for the period from April 1, 2007 to March 31, 2008. This rate exceeds the federal expectation by nearly 60%. 186. The high rate of re-entry is an inevitable result of a system with a lack of adequate parental involvement in case planning, untrained caseworkers with high caseloads, poor caseworker supervision and an insufficient array of child and family services.
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187. In the worst cases, inappropriate reunifications lead to severe injury or even death. On March 19, 2010, Kim Peno killed her two-year-old son, Timothy. Timothy had previously been in DCF custody, but had been reunified with his mother between six months and a year before his death. Medical reports revealed that Timothy died after suffering multiple blows to the head, which probably caused a severe brain injury, and that his body was covered in bruises.
188. In November 2007, nine-month-old Jocelyn Ward Anderson was killed by her mother after having been reunified with her after a four-month episode in foster care. Examination revealed that Jocelyn had been the victim of three separate attacks by her mother in the days leading up to her death – one in which her arm was violently twisted, another in which she was thrown down on her bottom causing spinal injuries, and a final episode in which she was violently shaken and slammed onto an object, causing a fatal skull fracture.
2. Defendants Fail To Timely Place Children With Adoptive Families When Reunification Is Not Possible
189. DCF is required to make prompt efforts to find children alternative permanent homes, typically through adoption, when reunification is not safely possible.
190. DCF fails to secure timely adoptions for scores of children in its custody who cannot be safely returned to their families. Many children with a goal of adoption languish in foster care for years, some literally growing up in state care.
191. According to federal data from the 2007 CFSR, Massachusetts ranked 13th worst among the 47 reporting states in achieving timely adoptions for children. Current DCF data reveals that necessary improvements have not been made in this vital area.
192. As of September 30, 2009, 2,486 children in DCF foster care (2,112 of whom were ages 11 and younger) had the goal of adoption and were waiting for DCF to unite
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them with permanent families. Moreover, 46% of all children with the goal of adoption had already been in foster care for two years or more, and 13% had already been in care for more than four years.
193. Over the last 15 years, there has been a dramatic decline in the annual number of finalized public adoptions in Massachusetts. In state fiscal years 1995 through 1998, DCF reported 1,073, 1,113, 1,161 and 1,100 total finalized adoptions per year, respectively. In contrast, in state fiscal years 2003 through 2006, DCF reported only 733, 812, 832 and 874 total finalized adoptions per year, respectively. In state fiscal year 2009, DCF finalized only 764 adoptions.
194. The lagging adoption rates in Massachusetts are an inevitable result of a system with excessive caseloads for adoption workers, inadequate caseworker training, insufficient financial supports for foster and adoptive parents, and inadequate efforts to recruit adoptive parents.
3. Defendants Fail To Prepare Children Who “Age Out” Of Foster Care To Live As Independent Adults
195. A June 2008 study by the Boston Foundation of youth aging out in 2005, Preparing Our Kids for Education, Work and Life, states: “[Y]outh who age out of [DCF] are still at considerable risk, particularly for homelessness, significant mental health needs, early pregnancy, physical violence and unwanted sexual contact.” The study reported that, of the youth surveyed, within three years of aging out of foster care:
a. 37% experienced homelessness; b. 54% were unemployed; of those who were employed, 47% were
employed 20 hours or less per week and only 10% received health benefits through employment; c. 30% were threatened or injured with a weapon in the last 12 months;
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d. 11% suffered sexual contact against their will within the last 12 months;
e. 25% had been arrested and 8% had been incarcerated within the last 12 months;
f. 34% had used illegal drugs and 31% had drunk heavily in the past 30 days;
g. 43% had been pregnant or had impregnated someone; and h. 59% reported feeling “sad or hopeless almost every day for two weeks
or more in a row” during the last 12 months, which is an indicator of depression. 196. Nearly 900 children aged out of Massachusetts foster care in 2009, approximately half of whom had spent three years or more in state care. 197. According to a 2008 report issued by The Pew Charitable Trusts, Massachusetts was among the three states with the highest percentage of youth who aged out of foster care in 2006. E. Defendants Fail To Provide Children With Essential Services 1. Defendants Fail To Provide Children With Adequate Visitation With Parents And Siblings, Damaging Their Family Relationships 198. When a child who has been separated from his or her parents and siblings also loses meaningful contact with them, the trauma of separation is aggravated and successful reunification (if that is the goal) becomes more difficult. Sibling connections can be severed irreversibly. DCF, therefore, is required to ensure that children in foster care are regularly able to visit with their parents and siblings. In far too many cases, DCF fails to meet these obligations. 199. In the 2007 CFSR audit, the federal government determined that in only 76% of children’s cases had the agency “made concerted efforts to ensure that [child-parent and
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sibling] visitation was of sufficient frequency to meet the needs of the family”; this performance falls below the federal benchmark of 90% for this outcome measure.
200. The 2007 CFSR audit also determined that: a. In 47% of audited cases, children in foster care visited with siblings less frequently than once per month; b. In 39% of audited cases, children in foster care had no visitation whatsoever with their fathers; and c. In 34% of audited cases, children in foster care visited with their mothers less frequently than once per month.
201. DCF itself acknowledged in the course of the 2007 CFSR that “the child and family’s opportunity to engage in quality visits during the time the child is in out-of-home placement positively impact the likelihood of reunification in a timely manner. The availability of transportation for child/parents to visit also impacts both the quality and frequency of visitation.”
202. Even when DCF facilitates family visitation, the visits frequently take place for a mere hour, often in small, dingy and bare rooms that inhibit spontaneity and relaxed, natural or loving interactions.
2. Children Do Not Receive Adequate Medical, Dental And Mental Health Care
203. DCF fails to consistently and timely provide required medical, dental and mental health screenings and follow-up care to children in its custody. Federal and Massachusetts law require that DCF assure to all children in foster care the screenings and follow-up care as set forth by the state under the “Early and Periodic Screening, Diagnosis and Treatment” (“EPSDT”) provisions of Medicaid.
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204. The 2007 CFSR audit determined that only 75.4% of children were receiving adequate medical, dental and mental health care, well below the federal benchmark of 95%.
205. Some three years later, DCF internal data reflects no material improvement in the delivery of medical, dental and mental health screenings. Indeed, in its FY 2010-2014 Child and Family Services Plan, DCF acknowledges that its current performance target for timely provision of initial and comprehensive health assessments amounts to only 50% compliance with DCF policy.
206. Massachusetts law requires DCF to furnish all foster caretakers with a “medical passport” setting forth the complete medical, dental and mental health history of the child placed with them. DCF is required to assure that these medical passports are routinely updated and delivered to new foster caretakers whenever a child’s placement is changed. The medical passport is intended to assure that all relevant medical history for a child is readily available to substitute care providers and physicians who encounter the child and provide care. This is particularly important for children in foster care because of their frequent placement moves, often between different neighborhoods and even counties. DCF fails to meet its medical passport obligations. This critical information is frequently not provided to foster parents and, even when provided, is often incomplete and outdated.
207. DCF does not implement adequate procedural safeguards to assure that children receive psychotropic drugs only when medically necessary, and not just to control difficult behavior. Public reports indicate that between two-thirds and three-quarters of children in DCF custody are receiving psychotropic medications. Although state law requires judicial
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oversight of certain anti-psychotic medications, no such oversight is required for other psychotropic medications, such as antidepressants.
208. All children in DCF foster care are automatically eligible for Medicaid coverage and, therefore, are part of the certified class in Rosie D. v. Patrick, Civ. No. 01-30199. Plaintiffs here do not seek to relitigate the legal rights determined in Rosie D. and made subject to the Rosie D. remedial order. Plaintiffs expressly reserve their right to seek a judicial remedy here for any failing by DCF to address their medical, dental and mental health needs, whether Medicaid-covered or not, that are not subject to the Rosie D. remedial order.
3. DCF Fails To Assure That Children Receive Adequate Educational Services 209. DCF policy recognize that all children in foster care must: attend school full-time; be provided educational assessments and services; receive the education most appropriate to their needs, including special education; and receive supplementary educational support as necessary. 210. DCF frequently fails to meet the educational needs of children in its custody. Though DCF had made strides in this service area as of 2007, since then resource reductions have led to a decline in performance. 211. When DCF moves children from one placement to another, it makes inadequate efforts to maintain children in the same schools. As a result, children are forced to change schools repeatedly, disrupting their education. 212. Significant numbers of children in DCF custody require special education services, yet DCF fails to ensure that these needs are met. Pursuant to DCF policy and guidelines, an adult must be appointed to exercise special education decision-making authority for children in foster care needing special education. DCF does not consistently ensure that such a person is appointed or available.
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213. When DCF does provide an educational advocate, he or she often lacks the requisite knowledge and qualifications to effectively advocate for the child. Though DCF has a stated preference that a child’s foster parent function as his or her educational advocate, DCF fails to provide adequate training to prepare foster parents to fulfill that vital role.
214. As a result of DCF’s failure to assure necessary educational advocacy and services for children, a substantial number of children in DCF care fails to attain a high school diploma or even a General Educational Development (“GED”) credential. II. THE HARMS AND RISK OF HARMS SUFFERED BY CHILDREN RESULT FROM
DEFENDANTS’ FAILURE TO PROPERLY MANAGE THE DCF FOSTER CARE SYSTEM
215. The harms described above in paragraphs 158 -- 214 result from Defendants’ failure to address structural and systemic problems that have been known to DCF for years. Among these systemic and structural problems are: (a) an overburdened and undertrained workforce; (b) the failure to recruit and retain an adequate number and array of foster homes and other placement settings; (c) the failure to develop and implement appropriate case plans and services plans for foster children and their biological parents; and (d) the failure to effectively manage agency staff and programmatic resources.
A. Defendants Fail To Maintain An Adequately Staffed And Appropriately Trained Child Welfare Workforce 1. Caseworkers Carry Unmanageable Caseloads 216. No foster care system can effectively perform its basic functions absent a
well-trained, experienced and adequately staffed workforce. Caseworkers are responsible for ensuring that children in foster care receive vital safety, health, educational and permanency services critical to their well-being.
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217. The Child Welfare League of America (“CWLA”), a coalition of private and public agencies that develops child welfare policies and promotes sound child welfare practice, has established nationally-recognized standards for caseworker caseloads. The standards governing foster care caseworkers limit caseloads to between 12 and 15 children per worker. The Council on Accreditation (“COA”), an accrediting body that partners with human service organizations to improve child welfare service delivery outcomes, recommends that caseloads for foster care caseworkers be limited to 8 to 18 children per worker, depending on the needs of the children.
218. By contrast, DCF caseloads exceed the CWLA and COA caseload standards by a wide margin. These excessive caseloads overburden caseworkers and prevent them from performing casework in conformance with DCF policy and generally accepted standards of professional child welfare case practice. DCF’s contract with the union representing its caseworkers sets the cap for ongoing foster care workers at a ratio of 18 families per caseworker. Because there are several siblings in many families, this 18:1 ratio translates into a caseload of 35 or more children per ongoing foster care worker.
219. In reality, caseloads are substantially higher than the contracted ratio of 18:1. Ongoing caseworkers across the state routinely carry caseloads of 22 to 27 families. DCF foster care caseworkers typically carry caseloads 3 to 6 times the CWLA and COA standards.
220. DCF Commissioner McClain has recognized in the DCF Child and Family Services Plan for FY2010-FY2014, prepared and submitted to the federal government under his authority, that manageable caseloads are a “critical variable” in assuring that workers are able to address the goals of safety, permanency and well-being.
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221. To date, Defendants have not taken any meaningful action to bring caseloads to manageable levels.
2. DCF Fails To Provide Adequate Training To Its Child Welfare Workforce 222. A foster care system cannot provide for the safety and well-being of children absent a well-trained caseworker staff that is fluent in governing policy and procedure and familiar with current best practices. A well-managed foster care system includes both preservice training requirements, which must be fulfilled by caseworkers before they can carry an active caseload, and a mandatory annual in-service training requirement designed to refresh caseworkers in basic policy and procedure and to teach advances in policy and in the field. 223. Though DCF requires the completion of a pre-service training curriculum before a caseworker can carry a caseload, DCF has no mandatory annual in-service training requirement. 224. This shortcoming is especially problematic in Massachusetts, where there is no requirement that a prospective caseworker demonstrate any prior formal education or training in child welfare. 225. DCF receives annual state funding to operate an intra-agency educational unit called the “Child Welfare Institute” (“CWI”). Defendants fail to make effective use of this important resource. Caseworkers are not required to enroll in CWI programs. While some caseworkers take advantage of continuing education offered by CWI, a significant number of caseworkers either choose not to attend these trainings or are unable to attend due to the burdens imposed by their high caseloads. 226. As a direct result of DCF caseworkers’ inadequate training, children frequently suffer harm because their assigned caseworkers are ill-prepared to make the judgments necessary to promote the children’s safety and well-being.
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B. Defendants Fail To Properly Manage DCF’s Foster Care Placements 227. When DCF removes a child from his or her family home, it is obligated to
provide a safe and suitable temporary home for that child until the child returns home or a new permanent family arrangement can be secured. In selecting a particular foster care placement or institution for a child, DCF is obligated to assess the child’s individual needs and to match those needs to a suitable and safe placement. DCF’s many management failures include: (1) failure to recruit an adequate number of placements; (2) failure to timely and appropriately make use of kin placements; (3) lack of a uniform, effective system for appropriately matching children to the best available foster homes; and (4) failure to adequately monitor and oversee foster placements.
1. DCF Fails To Recruit And Retain An Adequate Number Of Foster Homes 228. A foster care system must, of course, maintain a sufficient number of homes to accommodate the number of children currently in custody and additional children as they enter the system on an ongoing basis. In addition, child welfare practice requires that a sufficient array of placement types be available. The types of placement will range from “basic” foster homes that provide ordinary parental care to children without heightened therapeutic needs, to more “therapeutic,” “intensive” or “specialized” foster homes that receive additional training and support for the care of more high-needs children, to more highly structured or “restrictive” group homes and residential programs (known as “congregate care”) suitable for children who cannot yet thrive in a family setting. 229. Under federal law and policy, the preferred type of placement for any child is the least restrictive one that can meet the child’s needs. Further, children who are in more restrictive placements should be “stepped down” to less restrictive ones when they are safely able to do so.
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230. DCF regularly fails to recruit and retain an adequate number and array of foster homes.
231. For example, DCF fails to retain a sufficient number of foster homes willing and able to care for teens. As a result, DCF frequently places teens in congregate settings, even though the needs of many of these teens can be adequately met in a family home.
232. The severe shortage of foster homes is reflected in DCF’s overuse and misuse of “night-to-night” or “hotline” homes. These “night-to-night” homes are designed to provide one-time, emergency beds for children removed from their homes late in the evening or on weekends. However, DCF frequently uses these placements for longer periods of time because it cannot find appropriate, stable foster homes. As found in the 2007 CFSR:
In some regions, the agency uses “hotline” homes to place children (usually youth) until an appropriate placement is established. In many of these hom es, children do not have the option of being there during the day, so they s pend time at th e area offices awaiting confirmation of their ne xt placement. For som e youth, this pattern of “night-to-n ight” placement may occur with regularity. 233. Though DCF policy and applicable licensing regulations place limits on the number of children who may be placed in a single foster home to assure child safety and well-being, DCF regularly must waive these restrictions due to the overall shortage of foster homes. 234. One significant barrier to the recruitment and retention rate of foster homes is that DCF does not provide adequate financial supports to foster parents. 235. Federal law requires any state receiving federal foster care funds to pay foster care maintenance payments, or “per diem” or “board” rates, to foster parents to cover the costs associated with the foster care of a child, including food, clothing, shelter, daily
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supervision, school supplies, incidentals, liability insurance and reasonable travel to the child’s home for visitation.
236. DCF’s foster care maintenance payments are inadequate to cover the costs that Massachusetts is required to pay foster parents under this law. As of 2008, the United States Department of Agriculture (“USDA”) estimated that the average monthly expenditures for a child in middle income, husband-wife families in the urban Northeast ranged from $1,043 to $1,228, net of health care, depending on the age of child.
237. Under a different methodology, the National Foster Parent Association, the University of Maryland School of Social Work and Children’s Rights estimated in a 2007 study that the monthly cost of caring for a child in foster care in Massachusetts ranges from $766 to $962, depending on age.
238. The monthly payment provided to foster parents by DCF ranges from $520 to $565. Thus, Massachusetts’ foster care maintenance payments are 47 to 70% below the minimum required to meet the costs of raising a child in Massachusetts foster care.
239. In a 2009 survey of 319 foster parents conducted by the Massachusetts Society for the Prevention of Cruelty to Children (“MSPCC”), 74% of the parents surveyed reported that the financial support they receive from DCF does not cover the costs of fostering a child, with their estimates of the shortfall ranging to over $200 per month.
240. In 2008, Massachusetts enacted a law to raise the foster care maintenance rates, subject to appropriations, to meet the USDA estimates. However, no rate increases have taken place.
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241. Defendant McClain acknowledged in his budget testimony in March 2009 that “[f]ailure to address rates could result in . . . difficulty in retaining current and recruiting new foster families.”
242. DCF also routinely fails to provide other necessary financial support to foster parents, such as daycare services and reimbursements for extraordinary child care expenses.
243. DCF recruits two-earner families as foster homes. These foster families require dependable and consistent daycare in order to meet the needs of the children who are placed with them. However, DCF does not subsidize a sufficient number of daycare slots to meet foster parent demand.
244. The 2009 MSPCC survey of foster parents revealed that nearly half had refused placements of children. “Daycare issues” was the most commonly stated reason for refusal. Only 41% of the surveyed parents reported that they received needed child care for their foster children “always” or “most of the time.”
245. DCF policy, through its “receiptable reimbursement program” (“RRP”), provides for reimbursement to foster and pre-adoptive families for exceptional and essential outof-pocket costs, such as transportation to doctors, therapists and biological family visitation; medication, medical supplies and equipment; therapy not covered by MassHealth; and replacement of eyeglasses and orthopedic shoes.
246. Through its Parents and Children Together Program (“PACT”), DCF is also supposed to reimburse foster parents for their time and effort in meeting certain needs that are specified by DCF in children’s case plans, which efforts are not otherwise paid for through foster care maintenance payments, MassHealth or other funding sources. Such services include
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care for multiply-handicapped children, physical therapy, care of a catheter and other special needs. Approximately half of the foster parents surveyed by MSPCC in 2009 made use of PACT.
247. In the past year, RRP and PACT funding have been severely cut. These cuts make it impossible for many foster parents, who are unable to provide these services without reimbursement, to continue accepting DCF placements or to fully support the children placed with them.
248. In the 2009 MSPCC survey, only 61.6% of foster parents surveyed indicated that they planned to continue fostering.
2. DCF Fails To Timely And Appropriately Make Use Of Kin Placements 249. Massachusetts law requires caseworkers to search for and place children with kin, if appropriate and safe, at the outset of a child’s foster care episode in order to reduce the trauma of removal. DCF regulations similarly require that DCF consider “placement with kinship family” before considering any other placement. 110 CMR 7.101(2). 250. Defendants are failing to uniformly administer this policy. DCF often does not place children with kin even when appropriate kin placements are available, thus aggravating the trauma of the children’s removal from their parents. The 2007 CFSR audit determined that in nearly one out of every four applicable cases, DCF failed to make diligent efforts to locate and assess a child’s relatives as possible foster care placements. 251. The failure to timely identify potential kin placements also results in subsequent placement instability. DCF frequently finds a potential kin resource only after initial placement of a child with a stranger foster parent; in these situations, the child must endure the trauma of an additional placement move in order to live with kin.
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252. Under Massachusetts law, kinship foster care providers are required to obtain the same license that is required of third-party foster parents. Licensure not only permits the kin to provide foster care, but also entitles them to the same supports and protections, including Medicaid coverage, services, caseworker visits, supervision of parental visits and foster care maintenance payments, that are provided to third-party foster caretakers.
253. DCF frequently facilitates placement of abused and neglected children with unlicensed kin, when circumstances prevent the licensure of that kin home and a court is nonetheless willing to place direct legal custody of the child with the identified kin. DCF has not promulgated any policy regarding the use and support of unlicensed kin, but instead allows area offices throughout the state to place children in these unlicensed homes on an ad hoc basis. As a result, in many areas of the state, DCF is placing children in the homes of relatives without adequately assuring the safety and stability of these placements.
3. DCF Does Not Appropriately Match Children To Foster Care Placements Capable Of Meeting Their Needs
a) DCF Is Placing Children Wherever There Is An Available Bed Rather Than On The Basis Of Need
254. DCF has not implemented an adequate system for appropriately matching foster children to foster homes. Rather than assessing all relevant circumstances, including the capacity of foster care providers to serve a child’s needs, DCF often chooses placements for children haphazardly or on the basis of mere availability. As concluded in the 2007 CFSR, “[c]hildren may be placed wherever there is a bed, and this may result in poor matches.”
255. The chronic shortage of appropriate foster homes contributes to DCF’s failure to appropriately match children to foster homes, since caseworkers often have few or no placement options for children at the time they are removed.
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256. In the 2007 CFSR, DCF itself admitted that the instability of foster placements in Massachusetts stems from myriad systemic flaws including: (a) “ineffective matches between children and resource [foster] homes,” (b) “foster parents who have not been adequately trained or supported in caring for the child,” and (c) “inadequate information provided to family foster care and congregate care providers during emergency placement of children.”
b) DCF Fails To Use Residential Care When Needed, Instead Waiting For Children To “Fail Up” The System
257. DCF routinely denies children placements in residential treatment facilities, even when these placements are clinically recommended, forcing children instead to “fail up” the system. DCF initially places these high-need children in basic foster homes; these placements inevitably fail due to the inability of the foster parents to meet the children’s needs. Only after the children’s conditions have deteriorated even further due to a lack of appropriate services and the trauma of repeated placement moves does DCF finally authorize the residential care that was clearly needed in the first place.
258. Once children are in residential care, DCF often “steps them down” prematurely, leading to a new series of failed placements and further emotional deterioration.
259. The Child Welfare League of Massachusetts reported in its 2009 study, Public Secrets: Silent Suffering, that: “Children with serious emotional and behavioral issues are being referred to foster care homes instead of residential programs against clinical advice.” The report also stated:
[A] non-profit provider i ndicated an increase in activity to move their current kids to lower levels of care. DCF social workers with whom this provider interacts are reporting that placement decisions are now often m ade based on financ ial concerns, and against their professional recommendation.
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4. DCF Fails To Assure Foster Home Safety a) DCF Fails To Assure Regular Caseworker Visits To Children In Foster
Homes or Congregate Care 260. Without direct observation by trained caseworkers of the conditions in foster homes and congregate care facilities, the foster care system cannot adequately assure child safety. 261. DCF Commissioner McClain, in a March 27, 2008 Boston Globe article, acknowledged the threat of harm to children in DCF custody when caseworkers do not regularly visit them, stating: “[R]esearch shows there’s a correlation between frequency of worker contact and good outcomes for kids and families, especially keeping kids safe.” (Emphasis added.) 262. Defendant McClain also stated in the DCF Child and Family Services Plan For FY2010-FY2014 that regular worker visits with children are a “cornerstone of child welfare practice,” and one of the basic “nuts and bolts” of good casework practice. 263. DCF caseworkers agree. As stated by an officer of the Service Employees International Union (“SEIU”) Local 509, which represents DCF caseworkers: “Our staff is overburdened, and to be perfectly honest, we’re worried a kid is going to get hurt. If we can’t get out there to see these kids, we’re worried someone will slip through the cracks.” 264. Thousands of children in DCF custody are not receiving required monthly caseworker visits. In connection with the 2007 CFSR, DCF reported that only 70% of children were receiving monthly visits from their caseworkers as required. More specifically, across all DCF regions, the percentage of children receiving monthly visits from their caseworkers ranged from 68 to 73%.
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265. Only 53.2% of the 319 foster parents surveyed by MSPCC in 2009 reported seeing their foster child’s caseworker monthly, and 29.7% reported that the caseworker spent no time alone with the foster child at all.
266. Caseworkers frequently fail to visit with foster children for periods of two, three or more consecutive months. When such visits do occur, they are often brief and do not always involve direct conversation between the caseworker and the child outside the presence of the foster parent.
267. Though both management and caseworker staff recognize the vital importance of caseworker-child visitation, DCF is unable to determine whether caseworkers are visiting children as required. DCF reported in its Child and Family Services Plan for FY2010FY2014:
It is un clear whether ou r current perform ance is attribu table to a lack of actual visits, data def inition/entry issues, or some combination of both. This is compounded by the lack of an institutionalized quality assuranc e process that could potentially identify systemic and practice issues. Th is challenge has implications in other practice areas, as well. 268. DCF is therefore violating federal law requiring DCF to collect and report data relating to (1) the percentage of children in foster care who were visited during each and every calendar month and (2) the percentage of visits that occurred in the child’s residence. b) DCF Fails To Effectively Monitor Foster Placements Recruited, Managed
And Supervised By Private Agencies 269. DCF places children removed from home due to abuse or neglect in foster care settings either directly supervised by DCF caseworkers or indirectly managed by DCF through private agencies. When DCF engages a private agency to provide supervision and care for a child, DCF retains ultimate responsibility for that child’s safety, permanency and wellbeing.
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270. The foster care settings directly recruited and supervised by DCF are all basic foster family homes. DCF provides intensive foster care and congregate care for children with elevated needs by procuring those services from private agencies.
271. As of December 31, 2008, DCF had placed 40% of all children in out-ofhome care in placements run by private agencies.
272. Since state fiscal year 2005, DCF has contracted with an array of “Lead Agencies” to administer the delivery of foster care services provided by the private providers under contract with the state. DCF calls this management model for purchased services “Family Networks.” There is one Lead Agency for each of the 29 DCF Area Offices.
273. The Lead Agencies that operate the Family Networks system are responsible for, inter alia: (a) assessing and coordinating the needs of individual children whether in private or public placements; (b) performing case management activities for children in private contract agency placements; (c) facilitating Family Team Meetings; (d) managing private contract agency providers and networks; (e) developing a network of community-based child welfare resources; (f) providing educational coordinators for children; and (g) performing utilization reviews to assure that purchase of service contracts are implemented consistent with the overall DCF budget.
274. By building the Family Networks structure, DCF has outsourced a large portion of the administration and management responsibilities for its foster care placement and services needs. DCF does not possess an effective internal contract monitoring function to oversee the Lead Agencies and the private providers they manage for DCF. DCF does not conduct periodic on-site reviews of its private providers to monitor child safety, contract compliance and policy compliance or to assess outcomes achieved for children in their care.
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Private agencies receive only a biannual licensing inspection by the Department of Early Education and Care, which performs private agency licensing pursuant to a memorandum of understanding with EOHHS. Thus, the private agencies are essentially self-policing.
275. DCF is currently in the process of dismantling the Family Networks purchased services management model. With no developed and funded plan to increase DCF administrative staff to take over the functions now performed by the Lead Agencies, children in private placements will be left with even less system oversight.
C. DCF Fails To Properly Develop And Implement Case Plans And Service Plans For Foster Children And Their Families 276. Federal law mandates that state child welfare agencies assign an
appropriate permanency goal to children in foster care on a timely basis, and then provide casework and services, as needed, to achieve children’s permanency goals as quickly as possible. DCF routinely fails to do this for children in its custody. DCF’s failures include: (a) the failure to develop and implement appropriate service plans to reunify families safely and permanently when appropriate; (b) the failure to accomplish adoptions on a timely basis; and (c) the failure to provide necessary independent living services.
1. DCF Fails To Sustain Family Ties And Support Reunification When It Is Safely Possible
277. Under federal policy, a child welfare agency must make reasonable efforts to maintain and restore family relationships whenever possible. Accordingly, when a child is removed from his or her family, reunification is the preferred permanency goal. DCF recognizes that child-parent and sibling visitation are essential elements of the reunification process.
278. DCF is required to promptly undertake all reasonable efforts to achieve reunification, including providing those services necessary to enable parents to provide a safe and stable home for their children. The necessary reunification services, which are established in
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a service plan between DCF and the parent(s), may include psychological evaluations and/or care; substance abuse treatment; parenting classes or assistance; or assistance with accessing adequate housing, among other things.
279. DCF fails to involve parents in case and service planning. Without input from parents, DCF case plans and service plans often do not address the individual needs of parents. The 2007 CFSR found that DCF had adequately assured family involvement in services planning in only 49% of cases.
280. Parents often find themselves confronted with service plan requirements that set them up for failure: DCF frequently imposes service plans on parents setting forth what they must do to get their children back, but fails to provide or subsidize many of the required services, or even to direct parents where such services might be available. For example, service plans often require psychological evaluations or therapy, but parents find themselves on long waiting lists for appointments. When drug screening or treatment is required, parents find they have no access to drug screening or treatment services in their area.
281. DCF does not take measures to assure adequate availability of child and family services throughout the state. In less urban areas, services are even more likely to be unavailable or inaccessible due to distance and lack of transportation.
282. Parents’ inability to comply with DCF’s service plans because services are inaccessible or unavailable delays reunification, or even results in termination of parental rights and a change in the child’s permanency plan.
283. Regular contact between caseworkers and parents is also an essential ingredient to facilitating parents’ progress in meeting service plan requirements and assuring the
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safe reunification of families. The 2007 CFSR found that in 50% of cases, the assigned DCF caseworker had failed to visit the parent(s) of children in foster care with sufficient frequency.
284. Children are entitled to maintain their relationships with siblings and parents through visitation. Furthermore, DCF’s Child and Family Services Plan for FY2010FY2014 acknowledges that frequent, high-quality visitation between children and their parents is essential to successful reunification.
285. Visitation practice within DCF suffers due to known systemic problems including: (1) failure to provide for a sufficient number of child-parent or sibling visits in the case planning process; and (2) failure to implement the visitation provided in the case plans as written.
2. DCF Fails To Assure Timely Adoptions 286. When reunification cannot safely be achieved for a child, federal and Massachusetts law require DCF to provide an alternative permanent family for the child. DCF fails to develop and fully implement the programs and practices required to timely place children with permanent adoptive families or permanent guardians. 287. As of June 30, 2009, only 40% of children assigned a goal of adoption had been legally freed for adoption through the filing by DCF, and grant by the juvenile court, of a petition to terminate the legal rights of biological parents. Prospective adoptive families are frequently hesitant to consider adopting children who are not already legally free because of the uncertainties of the termination process. 288. Moreover, DCF is ineffective in recruiting potential adoptive families and matching them with children available for adoption. Even after a child’s parents’ rights have been terminated, it takes on average an additional 15 months for DCF to finalize the child’s adoption, according to federal data for the period October 1, 2005 to September 30, 2006. This
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places Massachusetts in the bottom 40% of the 52 reporting jurisdictions. For 18% of children adopted in the period October 1, 2005 to September 30, 2006, more than two years had elapsed between termination of parental rights and finalization of adoption.
289. As a further barrier to children’s timely adoptions, DCF fails to maintain an adequate staff of public and private provider adoption caseworkers. CWLA has established standards for adoption caseworker caseloads to be between 10 and 12 children per worker for adoption services.
290. DCF caseloads far exceed the CWLA caseload standard. DCF adoption caseworkers routinely carry caseloads of 18 families per worker or higher. These burdensome caseloads prevent adoption caseworkers from conducting the intensive, individually tailored recruitment activities that are required to match children with potential adoptive families on a timely basis.
291. Another barrier to adoptive recruitment in Massachusetts is the inadequate foster care maintenance rate paid to foster parents by DCF. Under federal law, these same rates set a ceiling on the rate that can be paid to adoptive parents in the form of federal adoption subsidies.
3. DCF Fails To Adequately Prepare Youth Aging Out To Live Independently As Adults
292. According to professional standards, youth aging out of foster care should be provided with the skills and resources to live independently as adults. Moreover, a child welfare agency must provide adequate transitional services to youth who will age out including: job training and/or education; life skills training; and assistance in obtaining any government benefits for which they may be eligible such as subsidized housing. DCF fails to adequately
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prepare youth who are aging out of foster care to live independently as adults and makes inadequate efforts to foster connections between these youths and adult mentors.
293. The permanency goal assigned to youth who will age out of foster care is “another planned permanent living arrangement” (“APPLA”). Youth assigned this permanency goal require independent living services to prepare them to live on their own. The 2007 CFSR reported that “the goal of [APPLA] was being addressed in an appropriate way” in only 47% of audited children’s cases.
294. Though approximately 4,000 youth in DCF foster care were ages 14 and above in 2009, DCF managed an active caseload of only 501 youth in state fiscal year 2009 who were receiving independent living services. These youth were served by a statewide adolescent support workforce of only 17 caseworkers and 3 supervisors. The vast majority of youth expected to age out of DCF foster care does not receive adequate independent living services.
295. A 2008 Boston Foundation study revealed that there is a “lack of basic knowledge among aging-out youth concerning life skills and continuing sources of resources and support.” The study further identified a number of systemic deficiencies that cause this lack of preparation and the harm that results from it: “First, . . . the existing child welfare system is focused on children, and not age appropriate for youth or young adults. Second, due to interagency collaboration problems, youth frequently ‘fall through the cracks’ between state systems. Third, lack of opportunities and options, especially housing, hindered the successful transition of aging-out youth.”
D. DCF Fails To Access Available Federal Funding 296. Pursuant to Title IV-E of the Social Security Act, 42 U.S.C. §§ 670 et seq.,
the federal government provides matching funds to all state-managed foster care systems to reimburse a portion of the costs of maintaining abused and neglected children in foster care. The
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Title IV-E foster care program is an open-ended entitlement that provides matching funds for all eligible children without the imposition of a federal spending cap. It is the obligation of the states to meet certain federal criteria to access and sustain the flow of Title IV-E funding.
297. A well-managed foster care system in the United States qualifies about 55 to 60% of its foster care population for Title IV-E reimbursements from the federal government. Massachusetts had a Title IV-E utilization or “penetration” rate of 42.5% in 1998. Just eight years later, in 2006, the penetration rate had dropped to 30%. In 2006, the average penetration rate in the United States was 57.35%. In 2007, DCF reported a penetration rate of just 27.21%.
298. Given the low Title IV-E utilization rate in Massachusetts, DCF fails to access millions of dollars in available federal funds to finance the State’s overburdened foster care system, instead expending finite state funds far more than necessary. In state fiscal year 2000, Title IV-E federal funding constituted less than 35% of the total child welfare expenditures in Massachusetts, ranking Massachusetts fourth lowest among the states in relation to its utilization of federal entitlement funds for child welfare purposes.
COUNT I (Substantive Due Process under the U.S. Constitution) (Asserted by all Named Plaintiffs and Plaintiff Children) 299. Each of the foregoing allegations is incorporated as if fully set forth herein. 300. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from harm when it takes that child into its foster care custody. 301. The foregoing actions and inactions of Defendants Deval L. Patrick, JudyAnn Bigby and Angelo McClain, in their official capacities, constitute a failure to meet their
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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.
302. The forgoing actions and inactions of Defendants, Deval L. Patrick,
JudyAnn Bigby and Angelo McClain, 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 class members. As a result, all Named Plaintiffs and class members
have been, and are at risk of being, deprived of the substantive due process rights conferred upon
them by the Fourteenth Amendment to the United States Constitution.
303. These substantive due process rights include, but are not limited to:
a. the right to protection from unnecessary harm while in governm ent custody;
b. the right to a living environm ent that pro tects foster child ren’s physical, mental and emotional safety and well-being;
c. the right to services necessa ry to prevent foster child ren from deteriorating or being harm ed physically, psychologically, or otherwise while in governm ent custody, including but not lim ited to the right to safe and secure fos ter care p lacements, 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 m edical, dental, psychiatric, psychological, and educational services;
d. the right to treatment and care co nsistent with the purpo se of the assumption of custody by DCF;
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, trea tment and serv ices determined and provided through the exercise of accepted professional judgment; and
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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)
304. Each of the foregoing allegations is incorporated as if fully set forth herein.
305. The foregoing actions and inactions of the Defendants Deval L. Patrick, JudyAnn Bigby and Angelo McClain, 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 conferred on them by the First, Ninth, and Fourteenth Amendments to the United States Constitution.
COUNT III (The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq.)
(Asserted by all Named Plaintiffs and Plaintiff Children) 306. Each of the foregoing allegations is incorporated as if fully set forth herein. 307. As a result of the foregoing actions and inactions by Defendants, Deval L. Patrick, JudyAnn Bigby and Angelo McClain, in their official capacities, Defendants are engaging in a policy, pattern, practice, or custom of depriving all Named Plaintiffs and class members of the rights conferred on them by the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997 (collectively the “Adoption
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Assistance Act”) and the regulations promulgated under the Act, 45 C.F.R. Parts 1355-1357 to documentation, including a child-specific recruitment plan, of the steps the agency is taking to find an adoptive family, to place a child with an adoptive family and to finalize the adoption (42 U.S.C. § 675(1)(E)) and to foster care maintenance payments paid to the foster care providers with whom the child is placed that cover the actual cost (and the cost of providing) the Plaintiff child’s food, clothing, shelter, daily supervision, school supplies, reasonable travel to visitation with family, and other expenses (42 U.S.C. §§ 671(a)(1), 671(a)(11), 671(a)(12), 672(a)(1), 675(4)(A)).
COUNT IV (Procedural Due Process) (Asserted by all Named Plaintiffs and Plaintiff Children) 308. Each of the foregoing allegations is incorporated as if fully set forth herein. 309. Defendants’ actions and inactions 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, without offering the Plaintiff Children adequate and meaningful opportunity to be heard: a. The rights in relation to “placement of children in private families; early and periodic screening, diagnostic and treatment standards; individualized health care plan” as provided in M.G.L. c. 119 § 32; b. The right to a “medical passport” as set forth in 110 CMR § 7.124; c. The rights to sibling visitation as provided in M.G.L. c. 119 § 26B(b), (d); and d. The right to be considered for placement with relatives, other adult persons who have played significant positive roles in the child’s life, and any minor siblings or half-siblings as provided in M.G.L. c. 119 § 23(c).
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PRAYER FOR RELIEF
WHEREFORE, the Plaintiff Children respectfully request that this Honorable Court:
a. Assert jurisdiction over this action;
b. Order that 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 unlawf ul 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;
iii. Defendants’ violation of Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 671(a)(1), 671(a)(11), 671(a)(12), 672(a)(1), 675(1)(E) and 675(4)(A).; and
iv. Defendants’ violation of Plaintiff Children’s right to procedural due process under the Fourteenth Amendment to the United States Constitution on the basis of state-created property rights.
d. Permanently enjoin Defendants from subjecting Plaintiff Children to practices that violate their rights.
e. Order appropriate remedial relie f to ensure Defendants’ future compliance with their legal obligations to Plaintiff Children, including, but not limited to, the following:
i. Caseloads. DCF shall establish and implement limits on the caseloads of all case-carrying workers for children in DCF placements and private agency placements operating under contract with DCF. These caseload limits shall be based on the standards for accreditation of public child welfare agencies set by the Council on Accreditation (“COA”) and the professional standards set by the Child Welfare League of America (“CWLA”).
ii. Education/Training. DCF shall develop and implement educational qualifications and a mandatory comprehensive preservice and in-service training program for caseworkers and
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supervisors based on standards for acceptable management of a child welfare system;
iii. Availability of Necessary Resources for the Placement of Children and Services for Children and Parents. An assessment shall be conducted by qualified professionals to determine the need for additional services and placements, including the need for family preservation services, foster and adoptive placements (including placements for children with disabilities or other behavioral needs), wraparound services, reunification services, independent living services, and medical, dental, and mental health services, for children in foster care throughout the state; and the time period during which these placements and services will be developed. Defendants shall take the steps necessary to develop these services and placements according to the assessment and the time frames it provides;
iv. Monitoring the Safety of Children in Placement. DCF workers shall visit all children in placement and their foster parents as frequently as set forth in the standards set by the COA and the CWLA in order to ensure that the children are safe.
DCF shall also comply with the standards and processes required under Massachusetts law for the approval, screening, oversight and utilization of all placement types that house foster children;
v. Child-Parent and Sibling Visitation. DCF shall develop and implement policies providing for adequate visitation between parents and children of those parents removed into foster care and siblings one or more of whom has been removed into foster care; Defendants shall develop and implement policies, which adequately provide for siblings being placed together in foster care and in adoptive or guardianship settings where those permanency goals are achieved;
vi. Case and Service Planning. DCF shall take necessary action to provide adequate and timely case plans and case reviews for children and adequate and timely services plans for their parents.
vii. Quality Assurance/Data. DCF shall ensure that it has a quality assurance (“QA”) system consistent with the standards of the COA and CWLA that is capable of measuring the quality of services provided to children in DCF custody;
viii. Contract Monitoring and Performance-Based Monitoring. DCF shall ensure that an adequately staffed and trained contract monitoring unit is created within the state’s central office for
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purposes of overseeing and managing the purchased services of the agency; DCF shall develop and implement a performance-based contracting scheme with its private foster care providers to ensure the protection of children; ix. Foster Care Maintenance Rates. DCF shall determine and pay foster care reimbursement rates that fully meet the elements set forth in 42 U.S.C section 675(4)(A); x. Monitoring/Enforcement. The provisions of the Court order entered pursuant to Fed. R. Civ. P. 65(d) shall be monitored by a neutral expert monitor appointed by the Court. In addition, the Court shall have continuing jurisdiction to oversee compliance with that order. f. Award to Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, in cluding reasonable attorneys' fees, pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, and Federal Rules of Civil Procedure 23(e) and (h); and g. Grant such other and further equita ble relief as the Court deem s just, necessary and proper to protect Plaintiff Children from further harm by Defendants.
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DATED: April 15, 2010

Respectfully submitted:
By:
_/s/ Marcia Robinson Lowry____ Marcia Robinson Lowry
applicant for admission pro hac vice Susan Lambiase
applicant for admission pro hac vice Sara Michelle Bartosz
applicant for admission pro hac vice Laurence D. Borten
applicant for admission pro hac vice Kara Morrow
applicant for admission 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 slambiase@childrensrights.org
By:
_/s/ Daniel J. Gleason_______________ Daniel J. Gleason (BBO# 194900) Mary K. Ryan (BBO# 435860) Jonathan D. Persky (BBO# 666651) NUTTER MCCLENNEN & FISH, LLP Seaport West 155 Seaport Boulevard Boston, MA 02210-2604 Phone: (617) 439-2000 Facsimile: (617) 310-9000 dgleason@nutter.com mryan@nutter.com jpersky@nutter.com

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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CONNOR B., by his next friend, ROCHELLE VIGURS, ET AL.,
Plaintiffs
v.
DEVAL L. PATRICK, ET AL., Defendants

) ) ) ) ) ) C.A. No. 10-cv-30073-MAP ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ MOTION TO CERTIFY CLASS
AND APPOINT CLASS COUNSEL (Dkt. No. 2)
February 28, 2011 PONSOR, D.J.
I. INTRODUCTION Plaintiffs bring this proposed class action on behalf 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. Plaintiffs challenge certain facets of the foster care system in Massachusetts and seek injunctive relief under provisions of the United

States Constitution and under the federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. (“AACWA”).
On January 4, 2011, this court denied Defendants’ motions to dismiss. Presently before the court is Plaintiffs’ motion to certify class and appoint class counsel (Dkt. No. 2). For the reasons discussed below, Plaintiffs’ motion will be allowed.
II. FACTS Plaintiffs seek certification of a class that consists of “all children who are now or will be in the foster care custody of the Massachusetts Department of Children and Families as a result of abuse or neglect.” The six named Plaintiffs -- Connor B., Adam S., Camila R., Andre S., Seth T., and Rakeem D. -- allege that they suffered various forms of harm while in DCF custody as a result of systemic failures. These harms are briefly detailed below. Connor B. Plaintiffs allege that DCF moved Connor B. (nine years old) through seven foster care placements; placed him in inappropriate foster homes, including one in which he was sexually abused; failed to provide him with
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needed therapy; failed to provide staff at one placement with documentation of Connor’s history or medication needs; failed to place him in a residential treatment program in disregard of clinical recommendations that he needed such a program; and failed to take the necessary steps to free him for adoption or to secure a permanent placement for him. (Compl. ¶¶ 15-34.)
Adam S. Plaintiffs allege that DCF failed to secure safe placements for Adam S. (sixteen years old) and moved him through at least five placements, including an initial placement with adoptive parents who physically abused him (leading to the surrender of their parental rights); placed him in two residential centers that did not meet his needs, including one in which he was beaten by other residents as part of a “fight club” orchestrated by staff; failed to find a permanent home for him; and failed to prepare him to live independently. (Compl. ¶¶ 35-56.)
Camila R. Plaintiffs allege that DCF moved Camila R. (thirteen years old) through at least eleven placements, which included being returned at one point to her mother despite earlier physical abuse by her mother; failed to
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ensure that Camila received necessary therapy for mental health issues, including post-traumatic stress disorder; failed to timely assess her educational needs; and failed to seek placement with kin or to secure a permanent placement for her. (Compl. ¶¶ 57-78.)
Andre S. Plaintiffs allege that DCF moved Andre S. (fifteen years old) among six placements that did not meet his needs, including one kinship foster home in which he may have been sexually abused; failed to take actions necessary to preserve his relationship with family members; inappropriately placed him in a residential treatment program, where he lived for five years; failed to ensure that he receive an evaluation for sexual abuse; and failed to secure a permanent placement for him despite his being in custody since he was three years old. (Compl. ¶¶ 79-97.)
Seth T. Plaintiffs allege that DCF moved Seth T. (thirteen years old) through multiple placements; failed to secure a permanent placement for him, initially assigning him a goal of long-term substitute care rather than adoption even though the rights of his biological parents had been
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terminated; and failed to take necessary steps to preserve Seth’s relationship with his brother. (Compl. ¶¶ 98-110.)
Rakeem D. Plaintiffs allege that DCF moved Rakeem D. (fifteen years old) among at least eight placements that did not meet his needs; failed to provide him with a kinship placement despite his expressed desire to be placed with family members; placed him in a group facility some distance from his family members; and failed to meet his educational needs. (Compl. ¶¶ 111-133.)
Plaintiffs allege that these named Plaintiffs are only six of approximately 8,500 children in DCF custody who are exposed to potential harm as a result of systemic deficiencies within DCF, including failure to maintain an adequately staffed and appropriately trained child welfare workforce; failure to properly manage foster care placements; failure to properly develop and implement case plans and service plans for foster children and their families; and failure to access available federal funding. (Dkt No. 1, Compl. ¶¶ 215 - 298.)
III. DISCUSSION
5

Fed R. Civ. P. 23(a) authorizes suit by one or more representative parties on behalf of a class only if: (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. In addition, to obtain class certification Plaintiffs must show that they satisfy one of the additional requirements imposed by Fed. R. Civ. P. 23(b). Plaintiffs here move under Rule 23(b)(2), which requires a demonstration 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). A. Numerosity.
To satisfy this first element, Plaintiffs must overcome a relatively “low threshold,” which does not impose a precise numerical requirement. Garcia-Rubiera v. Galderon, 570 F.3d 443, 460 (1st Cir. 2009). Generally, classes of
6

forty or more are considered sufficiently numerous under Rule 23(a)(1). See, e.g., DeRosa v. Mass. Bay Commuter Rail Co., 694 F. Supp. 2d 87, 98 (D. Mass. 2010) (certifying class of approximately 110 members).
Here, the putative class comprises approximately 8,500 children in DCF custody who have suffered harm and/or are exposed to harm as a result of the systemic failures alleged in the complaint. Although Defendants do not concede that Plaintiffs have satisfied this element, the focus of their challenge lies elsewhere. In any event, it is undeniable that Plaintiffs have crossed this “low threshold.” For example, Plaintiffs cite one study that identified “252 substantiated instances of abuse and neglect of children in DCF custody” in 2009.1 (Dkt. No. 39, Pls.’ Reply at 5 n.3.) This figure does not encompass all children who, Plaintiffs allege, have suffered as a result of the other failures outlined in the complaint, including the failure to provide essential medical services, to place them in a permanent
1 Defendants cite a finding much narrower in scope, which identified twenty-three reports of physical or sexual abuse between April 1, 2009 and March 31, 2010. (Dkt. No. 31, Defs.’ Opp’n at 20-21.) This case, however, is not limited to documented cases of physical or sexual abuse.
7

home, and to ensure adequate visitation with parents and siblings. Certainly, then, the proposed class “far exceeds the low threshold for numerosity.” Garcia-Rubiera, 570 F.3d at 460. B. Commonality.
Although set forth as distinct elements of Rule 23, the typicality and commonality concepts “tend to merge.” Gen’l Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). As the Supreme Court explains:
Both serve as guideposts for determining whether . . . 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. Id. Nonetheless, they are distinct requirements under Rule 23 and, therefore, merit distinct inquiries. See Hassine v. Jeffes, 846 F.2d 169, 177 n.4 (3d Cir. 1988) (explaining that commonality “evaluates the sufficiency of the class itself,” while typicality “evaluates the sufficiency of the named plaintiff”).
8

“Rule 23(a)’s requirement of commonality is a low bar, and courts have generally given it a ‘permissive application.’” In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 17 (1st Cir. 2008) (quoting 7A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 1763, at 221 (3d ed. 2005)). Commonality is easily satisfied in part because “there need be only a single issue common to all members of the class.” Natchitoches Parish Hosp. Serv. Dist. v. Tyco Int’l, Ltd., 247 F.R.D. 253, 263-64 (D. Mass. 2008) (quoting Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 3.10 (4th ed. 2002)) (emphasis in original).
Defendants argue that Plaintiffs’ “individual allegations do not translate into proper class claims,” thus violating the commonality requirement. (Dkt. No. 31, Defs.’ Opp’n at 10.) Defendants’ chief contention is that, “other than their unsubstantiated generalizations, [Plaintiffs] have offered no evidence that any of the harm that they experienced was caused by unlawful behavior by the Department, or that the other 8,000+ proposed class members sustained similar harm.” (Id. at 17-18.) Plaintiffs
9

respond that their complaint sets forth highly detailed allegations of deficiencies within DCF that expose the entire Plaintiff class to an unreasonable risk of harm, and they assert that Defendants’ attack on the merits of their allegations is impermissible at this stage in the litigation.
The resolution of this issue requires the court to consider, at the outset, a question that the parties have debated vigorously: what is the evidentiary burden Plaintiffs carry in attempting to satisfy the requirements of Rule 23? At oral argument, Defendants stressed that Plaintiffs cannot rely on the allegations contained in their complaint to satisfy Rule 23 and must put forth credible evidence demonstrating the propriety of class certification. Defendants urged the court to delay its ruling on this motion to allow the parties to conduct discovery and then return to court for an evidentiary hearing.
Although guiding authority on this issue is not perfectly clear,2 this court is confident that the burden is 2 The confusion centers on an apparent conflict between language used in two Supreme Court decisions concerning the evidentiary burden imposed on plaintiffs in the context of
10

not as exacting as Defendants suggest. To begin with,
Plaintiffs have the burden of proving that class
certification is appropriate. Smilow v. Sw. Bell Mobile
Sys., Inc., 232 F.3d 32, 38 (1st Cir. 2003). It is also
undisputed that a district court “must conduct a rigorous
analysis of the prerequisites established by Rule 23 before
certifying a class.” Id.
What is somewhat less transparent is when a court may
or must make evidentiary findings at the certification
class certification. In Eisen v. Carlisle and Jacqueline, the Court stated that “[w]e find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” 417 U.S. 156, 177 (1974). More recently, in General Telephone Company of Southwest v. Falcon, the Court stated that the certification inquiry “generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action,” noting that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” 457 U.S. 147, 160 (1982). The Supreme Court may resolve this confusion –- and, perhaps, clarify what it means to “probe behind the pleadings” -- in an upcoming ruling. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 795 (2010) (granting certiorari on class certification question). As explained in text, however, the need for preliminary evidentiary findings only arises in certain class actions, and this is not one of them. Thus, the ongoing uncertainty described above has no impact on the resolution of this motion.
11

stage. Defendants rely heavily on In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 17 (1st Cir. 2008), which acknowledged that where the legal or factual premises underlying the motion for class certification are disputed, “the court may probe behind the pleadings to formulate some prediction as to how specific issues will play out in order to assess whether the proposed class meets the legal requirements for certification.” In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 17 (1st Cir. 2008) (citations and quotation marks omitted) (emphasis added) (hereinafter “New Motor Vehicles”). “In short, a court has the power to test disputed premises at the certification state if and when the class action would be proper on one premise but not another.” Id. (emphasis added). Thus, the certification issue “may inevitably overlap with some critical assessment regarding the merits of the case.” Id. (emphasis added).
As the above emphases indicate, the First Circuit did not mandate that district courts make evidentiary findings at the certification stage, but simply acknowledged that such findings (or, at least, merits-based inquiries) are not
12

prohibited.3 In addition, it is important to place the excerpted language above in context. In New Motor Vehicles, the court was discussing the plaintiffs’ evidentiary burden as it related to the district court’s analysis under Rule 23(b)(3), which requires a finding that “questions of law or fact common to class members predominate.” The court specifically noted that Rule 23(b)(3) imposes a significantly greater burden on plaintiffs, explaining that “‘the predominance criterion is far more demanding’ . . . than the commonality requirement.” Id. at 20 (quoting Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 624 (1997)). With this “far more demanding” standard in mind, the court then concluded that “a searching inquiry is in order where there are not only disputed basic facts, but also a novel theory of legally cognizable injury.” Id. at 25. The court then explained the reach of its decision as follows:
We do not need to resolve now whether “findings” regarding the class certification criteria are ever necessary, but we do hold that when a Rule 23 requirement relies on a novel or complex theory as
3 In fact, as explained infra, the First Circuit expressly declined to answer the question of when evidentiary findings are permissible and restricted its holding to the propriety of merits-based inquiries in general.
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to injury, as the predominance inquiry does in this case, the district court must engage in a searching inquiry into the viability of that theory and the existence of the facts necessary for the theory to succeed. Id. at 26. Here, the proposed class involves neither a predominance inquiry under Rule 23(b)(3), nor a novel or complex theory as to injury. Cf. id. (requiring rigorous analysis of plaintiffs’ novel theory for proving common impact in class action against auto-manufacturers alleging conspiracy to prevent lower-priced Canadian vehicles from being imported into the United States); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 16 (1st Cir. 2005) (rigorously testing the evidence submitted by both sides in putative securities class action to determine whether the fraud-on-the-market presumption was reasonably applicable); DeRosa v. Mass. Bay Commuter Rail Co., 694 F. Supp. 2d 87, 97 (D. Mass. 2010) (noting that “statistical evidence of disparate treatment and/or disparate impact are significant” in Title VII cases in which the court must determine whether the challenged employment practice has a class-wide impact to satisfy the demanding predominance inquiry).
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While the interplay of a complaint’s legal and factual premises may require a court to evaluate the merits of the plaintiffs’ allegations and make evidentiary findings before certifying some class actions, this is not one of them. Plaintiffs have set forth highly detailed allegations in their 309-paragraph complaint that outline pervasive alleged problems in the Massachusetts foster care system -inadequate training and supervision of foster parents, the failure to properly investigate reports of neglect and abuse, delay in removing children from abusive homes, denial of essential educational and medical services, the shuttling of children among multiple placements, the failure to maintain adequate sibling visitation, and the inability to secure appropriate placements for adoption -– as well as the resultant harms.4
Defendants demand evidence of the harm that has befallen each member comprising this putative class, but
4 It is worth noting that one of the Supreme Court’s principal concerns in Falcon -- “the need for ‘more precise pleadings’” -- is not present here. Gen’l Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160-61 (1982)(quoting Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969)).
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actual injury to absent class members need not be proven at this stage. See, e.g., Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009) (“[A] class will often include persons who have not been injured by the defendant’s conduct. . . . Such a possibility or indeed inevitability does not preclude class certification.”) (internal citation omitted); Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (“[C]lass members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice.”) (emphasis in original); Fed. R. Civ. P. 23(b)(2), 1966 Amendment Advisory Committee Note (certification appropriate if defendant’s action or inaction “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”). Plaintiffs have detailed specific policies and/or failures within DCF that have resulted in specific harms to each named Plaintiff and that pose a continuing threat to the entire Plaintiff class. Plaintiffs need not prove how each policy or failure has harmed each member of the class at this stage. In other
16

words, the unreasonable risk of harm created by these alleged systemic failures within DCF and applicable to the entire Plaintiff class is sufficient to satisfy the requirement of commonality.
This conclusion mirrors a recent decision by the Tenth Circuit, which considered a nearly identical motion for class certification filed by foster children in Oklahoma against the Oklahoma Commission for Human Services. See D.G. v. Devaughn, 594 F.3d 1188, 1192 (10th Cir. 2010). Affirming the district court’s decision to certify the class, the Court of Appeals stated that “[t]hough each class member may not have actually suffered abuse, neglect, or the risk of such harm, Defendants’ conduct allegedly poses a risk of impermissible harm to all children in [state] custody.” Id. at 1196 (emphasis added). The court also rebuffed the state’s “repeated suggestions” to assess the weight of the plaintiffs’ claims, explaining that “at the class certification stage Named Plaintiffs do not bear the burden of proving the veracity of their complaint’s allegations.” Id. at 1197. In reaching this conclusion, the Tenth Circuit contrasted the plaintiffs’ burden of
17

demonstrating that a common question exists at the
certification stage with the plaintiffs’ later burden of
answering that question in their favor:
Requiring Named Plaintiffs to prove all class members were inadequately monitored or are actually exposed to a threat of harm due to [the Department’s] monitoring practices at the certification stage would require them to answer the common question of fact or law, rather than just prove it exists. Rule 23(a) does not require the district court to have an answer before certifying a class; classwide discovery and further litigation answer the question after certification.
Id. at 1198 (emphasis added).
In sum, Plaintiffs have satisfied the requirement of
commonality by alleging that various flaws within DCF,
outlined with specificity in the complaint, expose the
entire Plaintiff class to an unreasonable risk of harm in
violation of their constitutional rights. See id.
(concluding that the plaintiffs satisfied commonality); see
also Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.
1997) (concluding that nearly identical class of foster
children satisfied commonality because the alleged injuries
“derive from a unitary course of conduct by a single
system”); Baby Neal, 43 F.3d at 56 (reversing and remanding
18

district court’s decision not to certify nearly identical
class and noting that defendants’ commonality argument “has
been squarely rejected by the Supreme Court”).
Defendants’ suggestion that Plaintiffs must prove at
the certification stage how each policy or failure actually
harmed each member of the Plaintiff class is unavailing.5
Despite their assurances to the contrary, Defendants’
5 Curiously, in arguing for this court to assess the merits of Plaintiffs’ allegations, Defendants rely on cases from the Tenth and Third Circuits -- two circuits that certified a nearly identical class of foster children and expressly declined to assess the merits of their allegations. See D.G., 594 F.3d at 1192; Baby Neal, 43 F.3d at 56. Not surprisingly, the cases cited by Defendants from those jurisdictions are factually distinguishable. See Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009) (reversing decision to certify class in Eighth Amendment case alleging disregard of safety risks to inmates where complaint did not identify any specific forms of requested injunctive relief); Hohider v. United Parcel Serv., Inc., 574 F.3d 169 (3d Cir. 2009) (reversing decision to certify class of Title VII plaintiffs in disability discrimination case because of the need to conduct individualized inquiries concerning the effect of reasonable accommodations). In any event, the discussions of the evidentiary burden on class-action plaintiffs in Vallario and Hohider are consistent with this opinion. Vallario, 554 F.3d at 1266 (“[A] district court is [not] categorically prohibited from considering any factor, in conjunction with its Rule 23 analysis, that touches upon the merits of a movant’s claims.”); Hohider, 574 F.3d at 202 (holding that district court should have conducted “rigorous analysis” to determine whether class-wide injunctive relief was appropriate).
19

argument amounts to an attempt to hold “a mini-trial on the
merits” prior to certification, which is simply
impermissible. In re PolyMedica Corp. Sec. Litig., 432 F.3d
1, 16 (1st Cir. 2005).6
C. Typicality.
The third requirement of Rule 23(a) requires that the
named Plaintiffs’ claims be typical of the absent class
members. The claims of the entire class need not be
identical, but the class representatives must generally
“possess the same interests and suffer the same injury” as
the unnamed class members. Falcon, 457 U.S. at 156. The
typicality requirement “is intended to preclude
certification of those cases where the legal theories of the
named plaintiffs potentially conflict with those of the
absentees,” and, to that end, requires “that the common
6 According to the complaint, Massachusetts ranked fourth worst in a 2008 study measuring the rate of abuse and neglect of children in foster care. (Dkt. No. 1, Compl. ¶ 5.) Recent federal audits allegedly ranked the Commonwealth eighth worst in terms of placement stability and thirteenth worst in terms of timeliness of adoptions. (Id.) Defendants attack these allegations in their briefs and cite countervailing data placing DCF in a more favorable light. However, for the reasons explained in text, the court is not obliged to make evidentiary findings at this stage in the litigation.
20

claims are comparably central” to both the claims of the named plaintiffs and those of the absentees. Baby Neal, 43 F.3d at 57. As noted, some overlap exists between the typicality and commonality inquiries. See Falcon, 457 U.S. at 157 n.13.
Here, Defendants assert that named Plaintiffs’ claims are not typical because they are “unable to establish that the class members they purport to represent have viable claims that are sufficiently similar to justify class treatment.” (Dkt. No. 18, Defs.’ Opp’n at 18.) Again, this argument incorrectly assumes that Plaintiffs must prove the allegations of their complaint at the certification stage. Additionally, the fact that the harms alleged by named Plaintiffs may differ in some respects from those suffered by unnamed Plaintiffs does not undermine typicality. See, e.g., D.G., 594 F.3d at 1199 (“[T]ypicality exists where, as here, all class members are at risk of being subjected to the same harmful practices, regardless of any class member’s individual circumstances.”); Baby Neal, 43 F.3d at 56 (“Where an action challenges a policy or practice, the named plaintiffs suffering one specific injury from the practice
21

can represent a class suffering other injuries, so long as all the injuries are shown to result from the practice.”); Tyler v. Suffolk County, 253 F.R.D. 8, 10-11 (D. Mass. 2008) (rejecting defendants’ argument that name plaintiffs were not typical despite fact that “different inmates had widely different experiences”); Rolland v. Celluci, No. 98-30208KPN, 1999 WL 34815562, at *7 (D. Mass. Feb. 2, 1999) (“The fact that individual class members may have somewhat different needs, . . . or may be entitled to or need different services, does not justify denying class certification.”). Because Plaintiffs have identified specific systemic failures that expose the entire Plaintiff class to an unreasonable risk of harm, the typicality requirement is satisfied. D. Adequacy of Representation.
Rule 23(a)(4) requires that representatives fairly and adequately represent the interests of the entire class. To meet this requirement, Plaintiffs must satisfy two criteria: (1) the attorneys representing the class must be qualified and competent; and (2) the class representatives must not have interests antagonistic to or in conflict with the
22

unnamed members of the class. Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985).
Plaintiffs have retained experienced and competent counsel who will more than “fairly and adequately protect the interests of the class,” as required by Rule 23(a)(4). Plaintiffs are represented by the non-profit legal organization Children’s Rights and the law firm Nutter McClennen & Fish LLP (“Nutter”). 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. Nutter is a leading New England law firm with a national litigation practice. Prior to filing this action, Plaintiffs’ counsel reportedly conducted an indepth investigation of all aspects of the Massachusetts child welfare system’s operation and its treatment of children. Counsel indicate that they have spent hundreds of hours meeting with sources and compiling and analyzing data,
23

and that they thoroughly researched all of Plaintiffs’ legal claims. In addition, counsel is prepared to fund all costs of this litigation through trial.
The named Plaintiffs also easily satisfy this requirement. As summarized above, they each have alleged significant harms, often taking multiple forms, all of which are alleged to be attributable to failures within DCF. Thus, because Plaintiffs have retained experienced and competent counsel and because named Plaintiffs’ interests are entirely consistent with those of the class, Plaintiffs meet the requirements of Rule 23(a)(4). E. Rule 23(b)(2).
In addition to satisfying the four elements of Rule 23(a), Plaintiffs must demonstrate that they also meet one of the requirements set forth in Rule 23(b). Here, Plaintiffs assert that they have satisfied the requirements of Rule 23(b)(2), which applies 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.” Fed. R. Civ. P. 23(b)(2). These
24

requirements “demand cohesiveness among class members with respect to their injuries.” D.G., 594 F.3d at 1199 (citation and quotation marks omitted). Rule 23(b)(2) is “uniquely suited to civil rights action[s].” Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972).
Defendants argue that Plaintiffs’ allegations entail “highly-individualized determination[s], making the cases ill-suited to class-wide injunctive relief.” (Dkt. No. 31, Defs.’ Opp’n at 24.) Yet, Plaintiffs have proposed several forms of injunctive relief that would benefit the entire class, including stricter limits on caseworker caseloads and increased visitation by caseworkers of children in foster homes. Such prospective injunctive relief is fully consistent with Rule 23(b)(2), which, as noted, applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class.”
Notwithstanding Defendants’ arguments to the contrary, the existence of differences among members of the Plaintiff class does not make certification improper. In fact, it is not uncommon for courts in this circuit to certify class actions in which alleged systemic deficiencies resulted in
25

harms that manifested themselves differently among different segments of the plaintiff class. See, e.g., Rosie D. v. Patrick, 256 F. Supp. 2d 115 (D. Mass. 2003) (noting court’s earlier certification of children with severe emotional disturbances alleging violations of several provisions of the federal Medicaid Act, in particular, those provisions which establish the Early and Periodic Screening, Diagnosis and Treatment (“EPSDT”) program); Rolland v. Cellucci, No. 98-30208, 1999 WL 34815562, at *7 (D. Mass. Feb. 2, 1999) (certifying class of adults with mental retardation who reside in nursing facilities in Massachusetts despite plaintiffs’ “varying needs” that require “different medical personal care attendant, transportation, visiting nurse, home health aid, or behavioral support services”); Ricci v. Okin, 537 F. Supp. 817 (D. Mass. 1982) (certifying class of adults with mental retardation despite need for individualized determinations regarding services).
Other jurisdictions have reached the same conclusion in certifying nearly identical classes of foster children. See, e.g., D.G., 594 F.3d at 1199 (“So long as [the Department’s] challenged practices are based on grounds that
26

apply generally to the 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.”); Marisol A., 126 F.3d at 377 (“The unique circumstances of each child do not compromise [class status].”); Baby Neal, 43 F.3d at 56 (same). F. Class Limitations.
Defendants argue alternatively, if certification is warranted, the court should place a number of limitations on the proposed Plaintiff class. Specifically, Defendants suggest that the court limit the class by (1) dealing with only issues of worker caseload, monitoring, and data collection; (2) including only children who have been in foster care for at least two years; and (3) dividing the class into subclasses based on the named Plaintiffs’ claims. All three suggested limitations are unpersuasive.
Defendants’ first suggestion asks the court to limit the available injunctive relief to policy reforms that will affect the entire Plaintiff class in the same way. This appears to be simply an attempt to reargue the point that
27

there are differences among members of the Plaintiff class and not all requested relief will affect every Plaintiff in exactly the same way. As explained above, these differences are fully consistent with the requirements of Rule 23 and the court need not limit the Plaintiff class as a result.
The second suggestion fails to appreciate the fact that even children who have spent one week or even one day in DCF custody are allegedly exposed to an unreasonable risk of harm. Thus, restricting the Plaintiff class to children who have been in custody for at least two years is plainly improper.
Defendants’ third proposition -- the formation of subclasses –- is the most reasonable of the three. Defendants suggest that the court divide the Plaintiff class into subclasses based on the claims alleged, e.g., a subclass based on all children who were denied sibling visitation rights. The primary virtue of subclasses is their potential to expedite discovery and to allow the court “to conduct the trial in a more orderly manner, by tying the order of proof to particular claims raised by the individual subclasses.” Marisol A., 126 F.3d at 379. However, this
28

court is wary of placing artificial limitations on the discovery process from the outset and is confident that the complaint is sufficiently detailed to allow discovery to proceed smoothly. Moreover, once discovery has ended, the court will be better equipped to divide the Plaintiff class into subclasses, if necessary, and will be able to fashion that decision with an eye towards the eventual trial. Accordingly, the court will not accept Defendants’ invitation to so limit the Plaintiff class at this stage in the litigation.
IV. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion to Certify Class and Appoint Class Counsel (Dkt No. 2) is hereby ALLOWED. This case is now referred to Magistrate Judge Kenneth P. Neiman for a pretrial conference pursuant to Fed. R. Civ. P. 16. It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
29

 
 Case 3:10-cv-30073-MAP Document 43 Filed 01/04/11 Page 1 of 69

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CONNOR B., by his next friend, ROCHELLE VIGURS, ET AL.,
Plaintiffs
v.
DEVAL L. PATRICK, ET AL., Defendants

) ) ) ) ) ) C.A. No. 10-cv-30073-MAP ) ) )

MEMORANDUM AND ORDER REGARDING DEFENDANT PATRICK’S MOTION TO DISMISS AND
DEFENDANTS’ MOTION TO DISMISS (Dkt. Nos. 17 & 18) January 4, 2011
PONSOR, D.J. I. INTRODUCTION
Plaintiffs bring this proposed class action on behalf 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. Plaintiffs challenge certain facets of the foster care system in Massachusetts

Case 3:10-cv-30073-MAP Document 43 Filed 01/04/11 Page 2 of 69
and seek injunctive relief under provisions of the United States Constitution and under the federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. (“AACWA”).
Presently before this court are a motion to dismiss filed by Defendant Patrick (Dkt. No. 17) and a joint motion to dismiss on behalf of all Defendants (Dkt. No. 18). For the reasons discussed below, Defendants’ motions will be denied.
II. FACTS The six named Plaintiffs -- Connor B., Adam S., Camila R., Andre S., Seth T., and Rakeem D. -- are children who were transferred into DCF custody as a result of abuse or neglect by their parents. DCF may obtain custody over a child in a number of ways, including a “care and protection” proceeding instituted pursuant to Mass. Gen. Laws ch. 119, §§ 24-26, which targets children who suffer parental neglect or abuse. Plaintiffs bring this action on behalf of all children who enter DCF’s foster care custody as a result of such proceedings. Notably, the action does not involve children over whom DCF has obtained custody through other
2

Case 3:10-cv-30073-MAP Document 43 Filed 01/04/11 Page 3 of 69
means, such as children in need of services (“CHINS”) under Mass. Gen Laws ch. 119, §§ 39E et seq., or children in DCF custody pursuant to a voluntary placement agreement signed by their parents.
Defendants, all sued in their official capacities, are Angelo McClain, DCF Commissioner; Judyann Bigby, Secretary of the Massachusetts Executive Office of Health and Human Services (“EOHHS”), which oversees DCF; and Governor Deval Patrick.
Plaintiffs allege that approximately 8,500 children in DCF custody are exposed to severe potential harm, including: abuse and neglect by foster care parents; movement from one foster home to another with damaging frequency; placement in foster homes ill-suited to address their particular needs; languishing for years without permanent placement and then “aging out” of DCF custody without a permanent family or adequate preparation for adult life; and a lack of essential services, including sibling visitation and adequate medical, dental, mental health, and educational services. (Dkt. No. 1, Compl. ¶¶ 164 - 214.)
Plaintiffs allege that these harms result from systemic
3

Case 3:10-cv-30073-MAP Document 43 Filed 01/04/11 Page 4 of 69
deficiencies within DCF, including failure to maintain an adequately staffed and appropriately trained child welfare workforce; failure to properly manage foster care placements; failure to properly develop and implement case plans and service plans for foster children and their families; and failure to access available federal funding. (Dkt No. 1, Compl. ¶¶ 215 - 298.)
Plaintiffs bring this class action seeking an equitable remedy to these alleged failures in the Massachusetts foster care system. The complaint comprises four counts. Counts I, II, and IV allege violations of Plaintiffs’ rights under the United States Constitution, namely, Plaintiffs’ substantive due process rights under the Fourteenth Amendment; Plaintiffs’ liberty interests, privacy interests, and associational rights under the First, Ninth, and Fourteenth Amendments; and Plaintiffs’ procedural due process rights under the Fourteenth Amendment. Count III alleges multiple violations of the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. (“AACWA”).
Plaintiffs seek injunctive relief requiring DCF to
4

Case 3:10-cv-30073-MAP Document 43 Filed 01/04/11 Page 5 of 69
implement the following reforms: 1. Decrease caseworker caseloads; 2. Improve caseworker training; 3. Comply with recommendations of qualified professionals to improve essential services for the Plaintiff class; 4. Increase monitoring by caseworkers of the Plaintiff class; 5. Provide adequate visitation for the Plaintiff class with their parents and siblings; 6. Prepare timely case plans and case reviews; 7. Maintain a quality assurance system consistent with national standards; 8. Ensure that an adequately staffed and trained contract monitoring unit is created within the state’s central office for purposes of overseeing and managing the purchased services of the agency; and 9. Pay foster care reimbursement rates as set forth in the AACWA.
(Compl., Prayer for Relief (e).) In addition, Plaintiffs
5

Case 3:10-cv-30073-MAP Document 43 Filed 01/04/11 Page 6 of 69
ask that the court appoint a neutral expert to oversee the implementation of these reforms. (Id.)
III. DISCUSSION Defendants now move to dismiss all four counts in the complaint. Although Defendant Patrick filed a separate motion to dismiss (Dkt. No. 17), his arguments run parallel with those offered by the other Defendants in their joint motion to dismiss (Dkt. No. 18). The court will therefore address Defendant Patrick’s arguments in the context of the joint motion to dismiss. In addition to attacking the sufficiency of Plaintiffs’ allegations, Defendants offer three threshold arguments: (1) Plaintiffs lack standing; (2) the court should abstain from hearing the case pursuant to Younger v. Harris, 401 U.S. 37 (1971); and (3) the doctrine of sovereign immunity bars all claims as to Defendant Patrick. The court will address these issues before turning to the sufficiency of the complaint’s factual allegations supporting Plaintiffs’ constitutional and statutory claims. A. Standing. In accordance with Article III of the United States
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Constitution, a plaintiff must have standing to bring a claim before a federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). To satisfy Article III’s standing requirement, a plaintiff must assert (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the above injury and a defendant’s conduct; and (3) a likelihood that judicial relief will redress the above injury. Id. In cases involving requests for injunctive relief, the plaintiff must satisfy an additional requirement by alleging an immediate threat of future injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). While the plaintiff bears the burden of establishing standing, “at the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (internal citation and quotation marks omitted).
Defendants challenge Plaintiffs’ standing on two grounds: (1) Plaintiffs fail to establish a causal
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connection between the harms suffered and the systemic deficiencies alleged; and (2) Plaintiffs cannot prove an immediate threat of future injury.
1. Causal Connection. Defendants’ principal contention is that Plaintiffs fail to “establish a link between the systemic class relief that they seek and any actual harm allegedly suffered by the six named plaintiffs.” (Dkt. No. 29, Defs.’ Reply Mem. at 16.) Defendants highlight several alleged systemic deficiencies recited in the complaint, including unmanageable caseloads and infrequent contact between social workers and the Plaintiff class. Because these claims amount to “generalized complaints of institutional mismanagement,” they argue, Plaintiffs cannot satisfy the element of causation. (Id. at 24 (citation omitted).) Defendants’ arguments are unpersuasive. Under the second prong of the Lujan test, a plaintiff need not allege that the defendant’s conduct was the proximate cause of the plaintiff’s injuries, but merely that the injury was “fairly traceable” to the challenged action of the defendant. Lujan, 504 U.S. at 590; see also Focus on the Family v.
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Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003) (“Importantly, in evaluating Article III’s causation (or ‘traceability’) requirement, we are concerned with something less than the concept of ‘proximate cause.’ . . . [E]ven harms that flow indirectly from the action in question can be said to be ‘fairly traceable’ to that action for standing purposes.”). The alleged misconduct at issue here includes an understaffed and improperly trained workforce, infrequent contact between children and caseworkers, an inability to provide children with basic health and educational services, failure to develop and implement case plans, and a lack of resources due to DCF’s inability to secure federal funding. (Dkt. No. 1, Compl. ¶¶ 215 - 298.) Assuming all of Plaintiffs’ allegations to be true, as the court must at this stage, it is at least arguably clear that the harms suffered by children in DCF custody are fairly traceable to these systemic failures within DCF.
Contrary to Defendants’ assertions, Plaintiffs need not prove with specificity at this stage how every harm suffered by every named Plaintiff relates to a particular defect in
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the system. Cf. Lewis v. Casey, 518 U.S. 343, 357 (“The general allegations of the complaint in the present case may well have sufficed to claim injury by named plaintiffs, and hence standing to demand remediation, with respect to various alleged inadequacies in the prison system . . .”). Defendants’ arguments may have greater force if, after discovery, it becomes clear that a named Plaintiff cannot link the harm he or she suffered to a particular action or inaction by DCF. In response to a threshold motion to dismiss, however, such a finding would be premature.
2. Immediate Threat of Future Injury. Defendants correctly observe that, due to the nature of the relief sought, Plaintiffs cannot establish standing by relying on past injury alone. Where a complaint requests prospective injunctive relief, the plaintiff must allege an immediate threat of future injury. See Lyons, 461 U.S. at 111 (holding that plaintiff lacked standing to bring claim seeking to enjoin the use of “chokeholds” by police officers because plaintiff did not establish a policy of using this technique and, thus, its future use was merely speculative). “Past exposure to illegal conduct does not in itself show a
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present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (holding that plaintiffs lacked standing to bring claim against county magistrate for illegal bond setting, sentencing, and jury fee practices because none of the named plaintiffs were serving illegal sentences or awaiting trial).
Citing Lyons and O’Shea, Defendants argue that Plaintiffs lack standing because they have not established an imminent threat of future injury. Assuming arguendo that Plaintiffs suffered past harms while in DCF custody, Defendants suggest that these harms are unlikely to reoccur.
This case is clearly distinguishable from the cases Defendants rely upon. Here, Plaintiffs allege, unlike the plaintiffs in Lyons and O’Shea, that Defendants maintain policies and practices that continue to harm them. Given that Plaintiffs remain in DCF custody and have not been placed in permanent homes, they may fairly argue that they suffer ongoing harm resulting from the alleged systemic failures within DCF. It is well established that
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allegations of ongoing harm satisfy Article III’s standing requirement. See County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (contrasting Lyons “in which the constitutionally objectionable practice ceased altogether” and holding that plaintiffs had standing because they alleged “a direct and current injury” resulting from an unlawful detention). Thus, because they assert an ongoing injury fairly traceable to Defendants’ allegedly unlawful conduct, Plaintiffs have standing to bring their claims.1 B. Abstention.
The Supreme Court has identified several discrete circumstances that require federal courts to abstain from adjudicating a case. Here, Defendants argue that abstention is appropriate under Younger v. Harris, 401 U.S. 37 (1971).
In Younger and its progeny, the Supreme Court prohibited federal courts from interfering with pending
1 Other federal courts applying Lujan to class actions similar to this one have reached the same conclusion. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1266 (11th Cir. 2003); Clark K. v. Guinn, Civ. No. 2:06-cv-1068, 2007 WL 1435428, at *5 (D. Nev. May 14, 2007); Dwayne B. v. Granholm, Civ. No. 06-13548, 2007 WL 1140920, at *3-4 (E.D. Mich. April 17, 2007); Carson P. v. Heineman, 240 F.R.D. 456, 512-13 (D. Neb. 2007).
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state judicial or administrative proceedings. See id.; Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Moore v. Sims, 442 U.S. 415 (1979); Juidice v. Vail, 430 U.S. 327 (1977). Although Younger involved a state criminal proceeding, the Supreme Court has extended the doctrine to two types of state civil proceedings: (1) quasi-criminal or “coercive” state civil proceedings brought by the state as enforcement actions against an individual; and (2) state civil proceedings brought “uniquely in furtherance of the fundamental workings of a state’s judicial system.” Rio Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 69 (1st Cir. 2005).
The Court later refined the Younger analysis in Middlesex County Ethics Commission v. Garden State Bar Association, holding that Younger applies to (1) an ongoing state judicial proceeding involving the federal plaintiff that (2) implicates important state interests and (3) that provides an adequate opportunity for the federal plaintiff to assert federal claims. 457 U.S. 423, 432 (1982). The first Middlesex prong implicitly includes a requirement that the federal proceeding interfere with an ongoing state
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proceeding. See Rossi v. Gemma, 489 F.3d 26, 35 (1st Cir. 2007) (observing that courts must first consider the “threshold issue of interference” before moving on to the balance of the Middlesex test); see also 31 Foster Children v. Bush, 329 F.3d 1255, 1275-76 (11th Cir. 2003) (citing several cases recognizing this implicit requirement and following their lead).
As discussed below, Younger is inapplicable here because this case does not involve the type of state proceeding that would require abstention and because the Middlesex factors have not been satisfied.
1. Nature of the State Proceeding. Defendants argue that this class action will interfere with ongoing judicial proceedings in Massachusetts juvenile courts. However, these juvenile court cases do not fall within either of the two narrow exceptions in which the Supreme Court extended Younger to civil proceedings. As noted, the Supreme Court has applied Younger outside of the criminal context only to “coercive” enforcement actions against an individual and to proceedings brought “uniquely in furtherance of the fundamental workings of a state’s
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judicial system,” such as the state’s contempt process or its method of enforcing judgments. See Rio Grande, 397 F.3d at 69 (discussing numerous examples of each). This case involves neither.
Defendants suggest that Plaintiffs’ claims implicate ongoing proceedings involving the termination of parental rights (“TPR” or “care and protection” proceedings), whereby juvenile courts place children in state custody due to abuse or neglect by their parents. Presumably, then, this case would fall under the category of coercive enforcement actions warranting abstention. See Moore v. Sims, 442 U.S. 415, 425-26 (1979) (holding that abstention was appropriate under Younger where parents filed suit in federal court challenging ongoing TPR proceedings in a Texas state court).
However, Defendants’ argument fails to appreciate that Plaintiffs’ claims relate only to alleged injuries suffered while in DCF custody. TPR proceedings are the means by which Plaintiffs enter DCF custody, and Plaintiffs expressly state that they are not challenging any aspect of those proceedings in this case. As explained below, state law greatly circumscribes the role of juvenile courts once DCF,
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an executive agency, takes custody of a child. 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. See New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989) (holding that Younger does not apply to a “state judicial proceeding reviewing legislative or executive action” because “[s]uch a broad abstention requirement would make a mockery of the rule that only exceptional circumstances” justify abstention); see also Rio Grande, 397 F.3d at 70 (holding that Younger did not apply where state proceeding challenged executive action, namely, a failure by Puerto Rico’s Secretary of Health to reimburse plaintiffs for services provided to Medicaid patients).
2. Applying the Middlesex Factors. Application of the Middlesex factors further illustrates why Younger and its progeny do not require abstention here.
a. Interference with an Ongoing State Proceeding. First, Defendants fail to show how the present case would interfere with ongoing state proceedings. Defendants
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argue that the requested injunctive relief, such as determining the propriety and safety of placements, the adequacy of services, the frequency of visitation, and the appropriateness of DCF’s plans to achieve permanency for each child, “necessarily must be addressed in the ongoing proceedings by Juvenile Court judges, who are vested with the authority and the obligation to render determinations and issue orders on each of these issues.” (Dkt. No. 20, Defs.’ Mem. at 59-60.)
Defendants’ argument misapprehends the nature of Plaintiffs’ claims. As support for their contention that this case threatens to constrain state juvenile courts, Defendants highlight several cases that are clearly inapposite. These authorities fall into two categories: (1) child-in-need-of-services(“CHINS”) cases; and (2) termination-of-parental-rights (“TPR”) cases.
Under Mass. Gen. Laws ch. 119, § 39E, parents may petition a juvenile court to label their child a “child in need of services,” at which time the court can help rectify problems such as the child’s obstinance at home or truancy at school. The role of juvenile courts is expanded
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considerably in a CHINS case. See In re Angela, 833 N.E.2d 575 (Mass. 2005) (“Unlike most other commitment proceedings, where the person is committed to the care of an agency of a department of the State . . . [in a CHINS case] the Juvenile Court retains control over the treatment of the child who is adjudicated a CHINS and the dispositional order is revisited periodically.”).
The same is true for TPR cases. See Mass. Gen. Laws ch. 119, § 26 (describing the direct role of the courts in determining a child’s fate in TPR proceedings); see also Adoption of Gregory, 747 N.E.2d 120, 128-29 (Mass. 2001) (affirming juvenile court’s decision to terminate parental rights); Adoption of Daisy, 934 N.E.2d 252 (Mass. App. Ct. 2010) (same). Plaintiffs concede that “TPR proceedings may thus be entitled to Younger deference,” (Dkt. No. 26, Pls.’ Mem. at 26 n.19), but correctly observe that Defendants have failed to show how the relief requested in this case would in any way interfere with either a TPR or a CHINS proceeding.
As noted previously, Plaintiffs’ claims do not implicate the proceedings themselves, only the aftermath of
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the proceedings. In stark contrast to the discretion afforded juvenile courts in TPR and CHINS proceedings, Massachusetts law greatly restricts the juvenile courts’ discretion once a child is placed in DCF’s permanent custody. In fact, the Massachusetts Supreme Judicial Court (“SJC”) has made clear that DCF controls the fate of these children and that the juvenile courts play a very limited oversight role:
When [DCF] is granted permanent custody of a child, it has virtually free rein to place that child in a foster home of its choosing, to decree whether, how much, and what sort of family visitation there should be, and to decide whether to have the child adopted. This discretion is subject only to a petition for review which cannot be filed more than once every six months. Care & Protection of Three Minors, 467 N.E.2d 851, 861 (Mass. 1984) (emphasis added). In other words, “‘the courts play a minimal role in exercising the state’s care and protection policy. The real locus of decision making is within [DCF]. . . .’” Id. (quoting Catherine E. Campbell, The Neglected Child, 4 Suffolk U. L. Rev. 631, 645-646 (1970)). In Care & Protection of Isaac, 646 N.E.2d 1034 (Mass.
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1995), the SJC more clearly defined the limited role that juvenile courts play once DCF obtains permanent custody, holding that courts do not have authority to overrule a residential placement decision made by DCF unless the judge finds that the decision was arbitrary or capricious and amounts to an abuse of discretion. In so holding, the SJC observed that Mass. Gen. Laws ch. 119 “contain[s] no general grant of authority to a judge to enter an order intended to be in a child’s best interests.” Id. at 609. Thus, “when a child is placed in the permanent custody of the department, decisions related to normal incidents of custody, by the terms of §§ 21, 26, and 32 are committed to the discretion of the department,” and the juvenile court may only “offer guidance to the department concerning a child’s residence.” Id.
The scope of state courts’ discretion is critical to the Younger analysis. Multiple federal courts facing nearly identical challenges to state foster-care systems have reached disparate conclusions regarding the applicability of
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Younger.2 The case of Carson P. v. Heineman, 240 F.R.D.
456, 529 (D. Neb. 2007), illustrates how differences among
states in the power afforded juvenile courts over foster-
care children affect these outcomes:
As noted by Kenny A.[v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003)], “under Georgia law, once the juvenile court grants legal custody of a child to DFCS, the court is powerless to order DFCS to give physical custody of the child to any particular foster parent or otherwise restrict the actual placement of the child.” In Kenny A., the juvenile court’s authority over the state social service department was very limited, and the federal court could arguably assist that juvenile court by issuing orders against the state agency,
2 Several federal courts have held that Younger requires abstention under similar circumstances. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), cert denied, 540 U.S. 984 (2003); J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999); Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002); E.T. v. George, 681 F. Supp. 2d 1151 (E.D. Cal. 2010); Carson P. v. Heineman, 240 F.R.D. 456 (D. Neb. 2007); Laurie Q. v. Contra Costa County, 304 F. Supp. 2d 1185 (N.D. Cal. 2004).
Other courts have held that Younger does not apply. See, e.g., LaShawn A. v. Kelly, 990 F.2d 1319, 1322-23 (D.C. Cir. 1993); L.H. v. Jamieson, 643 F.2d 1351 (9th Cir. 1981); Clark K. v. Guinn. No. 2:06-cv-1068, 2007 WL 1435428 (D.Nev., May 14, 2007); Dwayne B. v. Granholm, 2007 WL 1140920 (E.D. Mich. Apr. 17, 2007); Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543, 567-68 (S.D. Miss. 2004); Kenny A. v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003); Brian A. v. Sundquist, 149 F. Supp. 2d 941 (M.D. Tenn 2000); Baby Neal v. Casey, 821 F. Supp. 320, 331-33 (E.D. Pa. 1993), rev’d on other grounds, 43 F.3d 48 (3d Cir. 1994).
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orders that the juvenile court itself was powerless to enter. Such is not the case in Nebraska. Id. (citations omitted). Highlighting, in contrast, the “expansive scope of authority” afforded juvenile court judges in Nebraska to “decide the appropriate placement for children in [state] custody,” Carson P. held that Younger abstention was appropriate. Id. at 527. This class action is closer to Kenny A. and its sister cases in which federal courts found Younger inapplicable because the plaintiffs sought to enjoin actions taken by an executive agency, not the courts. See, e.g., Kenny A. v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003) (“[T]he declaratory and injunctive relief plaintiffs seek is not directed at [plaintiffs’] review hearings, or at Georgia’s juvenile courts, juvenile court judges, or juvenile court personnel,” but rather “at executive branch defendants to remedy their alleged failures as plaintiffs’ custodians.”); Dwayne B. v. Granholm, Civ. No. 06-13548, 2007 WL 1140920, at *6 (E.D. Mich. April 17, 2007) (“The relief sought here is not directed at the juvenile courts. It is directed at the [Michigan] executive branch,” and therefore
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“[d]efendants’ claim that there are ongoing judicial proceedings is misleading.”); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 957 (M.D. Tenn 2000) (“Plaintiffs seek injunctive relief against the [Tennessee] Department of Children’s Services, not the courts” and, therefore, “nothing about this litigation seeks to interfere with or enjoin” the state proceedings).
As described above, once a child is placed in DCF custody, Massachusetts law severely restricts the role of juvenile courts. Unlike in CHINS or TPR cases, the courts’ authority is limited to periodic, highly deferential review of DCF’s decisions. Any indirect impact this case has on the juvenile courts is slight and fails to rise to the requisite level of interference articulated by the First Circuit. See Rio Grande, 397 at 69 (citing Gilbertson v. Albright, 381 F.3d 965, 977-78 (9th Cir. 2004)) (“Interference is . . . usually expressed as a proceeding that either enjoins the state proceeding or has the ‘practical effect’ of doing so.”). Because Plaintiffs’ requested relief threatens to impose limitations on DCF, not the juvenile courts, Younger is inapplicable.
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b. Important State Interests. The second Middlesex factor, requiring that the state proceedings implicate important state interests, is easily satisfied here. See Petition of Dep’t of Public Welfare to Dispense with Consent to Adoption, 381 N.E.2d 565, 572 (Mass. 1978) (holding “state’s interest in protecting the welfare of children” constitutes a compelling state interest). The only remaining question, then, is whether the state proceedings provide an adequate opportunity for Plaintiffs to assert their federal claims. See Middlesex, 457 U.S. at 432.
c. Adequate Opportunity to Assert Federal Claims. The final requirement under Younger is that the federal plaintiffs had an adequate opportunity to present their federal claims in the state proceeding. See Middlesex County Ethics Comm’n, 457 U.S. at 432. Defendants emphasize that Massachusetts courts have the authority to hear federal constitutional and statutory claims. It does not matter, they argue, whether the juvenile courts represent a natural or proper place for bringing those federal claims. What matters is that the courts could, in theory, hear those
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claims, and Plaintiffs chose not to avail themselves of an opportunity to present them. In support, Defendants quote Moore v. Sims, in which the Supreme Court stated that “abstention is appropriate unless state law clearly bars the interposition of the [federal statutory] and constitutional claims.” 442 U.S. 415, 425-26 (1979).
Defendants’ reliance on this language in Moore is flawed for several reasons. First, Defendants overlook a later clarification in Moore, which states that “the only pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims.” Id. at 430. (emphasis added). Second, Moore was decided before Middlesex, and Middlesex repeatedly observes that the state forum must present an “adequate opportunity” to present the federal claims.3 See Middlesex County Ethics Comm’n, 457 U.S. at 432 (emphasis added). Third, several
3 Defendants’ reliance on Juidice v. Vail, 430 U.S. 327 (1977) is similarly misplaced. Juidice employs slightly different phrasing, asking whether the plaintiffs were given “an opportunity to fairly pursue their constitutional claims in the ongoing state court proceedings.” Id. at 337 (emphasis added). It is unclear how, if it all, this language alters the analysis. In any event, Juidice, like Moore, was decided before Middlesex.
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federal courts of appeals interpreting this line of case law have noted that adequacy is, indeed, a central consideration. For instance, the United States Court of Appeals for the D.C. Circuit explained that courts must consider not only whether it was theoretically possible for the plaintiffs to raise their federal claims in the state proceeding, but also whether the state proceeding provided an “inadequate or inappropriate forum” for pursuing those claims. LaShawn A. v. Kelly, 990 F.2d 1319, 1322 (D.C. Cir. 1993). Holding that the D.C. family court system was an inadequate forum for class-action plaintiffs to present a challenge to the D.C. foster-care system, the court explained that the state proceedings “contemplate issues centering on the care of a child by his or her parent” and, thus, “are not suitable arenas in which to grapple with broad issues external to the parent-child relationship.” Id. at 1322-23 (citations and quotation marks omitted).
Although not addressing this issue head-on, a Ninth Circuit opinion reflected a similar understanding of Younger, holding that abstention was inappropriate where the plaintiffs’ claims were “not of a sort that would be
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presented during the normal course of a state proceeding.” L.H. v. Jamieson, 643 F.2d 1351, 1354 (9th Cir. 1981). The Tenth and Eleventh Circuits, while ultimately affirming the district courts’ decisions to abstain under Younger, also focused their analyses on whether the state proceeding offered an adequate forum for the plaintiffs to present their federal claims. See J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999); 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003).
Like the plaintiff class in LaShawn A., Plaintiffs here also bring a “multifaceted request for broad-based injunctive relief based on the Constitution and on federal . . . statutory law.” 990 F.2d at 1323. Although 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
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opportunity to seek relief for the systemic failures alleged in the complaint. Thus, abstention is inappropriate.
C. Sovereign Immunity. Defendant Deval Patrick, as Governor of Massachusetts,
argues that the doctrine of sovereign immunity precludes all claims against him. Specifically, Defendant Patrick asserts that Plaintiffs have failed to establish a sufficient connection between any actions taken by him and the harms alleged. The argument is unpersuasive.
The Eleventh Amendment generally bars suits in federal court against unconsenting states. See Rosie D. ex. rel. John D. v. Smith, 310 F.3d 230, 234 (1st Cir. 2002). However, in Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court recognized a narrow exception for claims seeking prospective injunctive relief against state actors. Ex Parte Young allows federal courts, “notwithstanding the absence of consent, waiver or evidence of congressional assertion of national hegemony, [to] enjoin state officials to conform future conduct to the requirements of federal law.” Rosie D., 310 F.3d at 234 (holding that Eleventh Amendment did not bar Medicaid beneficiaries from seeking
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prospective injunctive relief in federal court) (citations and quotation marks omitted). As long as the state official “has some connection with the enforcement of the act,” that official is an “appropriate defendant.” Shell Oil v. Noel, 608 F.2d 208, 211 (1st Cir. 1979). “It is a question of federal jurisdictional law whether the connection is sufficiently intimate to meet the requirements of Ex parte Young.” Id.
Here, in addition to his general executive and budgetary authority, Governor Patrick has direct supervisory authority over Defendant Bigby, the Secretary of the Massachusetts Executive Office of Health and Human Services, who develops and implements DCF policies and programs. See Mass. Gen. Laws ch. 6A, § 16. Defendant Patrick also approves the appointment of the DCF Commissioner, Defendant McClain. Mass. Gen. Laws ch. 18B, § 6.
Defendant Patrick concedes, moreover, that in 2008 the state legislature codified an executive order creating the Office of the Child Advocate, “who is appointed by and reports directly to the Governor” and is charged with reviewing “[DCF’s] programs and procedures” and resolving
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“complaints relative to the provision of services to children by an executive agency.” (Dkt. No. 20, Defs.’ Mem. at 48 (quoting Mass. Gen. Laws ch. 18C, §5).) Significantly, Defendant Patrick’s issuance of the executive order initially establishing the Office represents direct involvement in the ongoing maintenance of the state child welfare system.
The fact that on a daily basis Defendant Patrick plays a somewhat detached, supervisory role is inconsequential. See Papasan v. Allain, 478 U.S. 265, 282 n.14 (1986) (holding that Eleventh Amendment did not bar suit against secretary of state responsible for “general supervision” of the administration of public school land funds by local school officials); Futernick v. Sumpter Twp., 78 F.3d 1051, 1055 n.5 (6th Cir. 1996) (rejecting as “ridiculous” defendants’ argument that “only the officer with immediate control over the challenged act or omission is amenable to § 1983"). Certainly, Defendant Patrick has “some connection” with the enforcement of DCF policy, and that connection is “sufficiently intimate” to remove him from the Eleventh Amendment’s shield of sovereign immunity. Shell Oil, 608
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F.2d at 211. Therefore, Defendant Patrick’s Motion to Dismiss (Dkt No. 30) will be denied. D. Plaintiffs’ Constitutional Claims (Counts One, Two, and
Four). A complaint is subject to dismissal under Rule 12(b)(6) if, after accepting all well-pleaded facts as true and drawing all reasonable inferences in favor of a plaintiff, the court determines that it “fails to state a claim upon which relief can be granted.” Edes v. Verizon Commc’ns, Inc., 417 F.3d 133, 137 (1st Cir. 2005); Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must contain “sufficient factual matter” to state a claim to relief that is both actionable as a matter of law and “‘plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “Dismissal for failure to state a claim is appropriate if the complaint fails to set forth ‘factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.’” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
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6 (1st Cir. 2005)). 1. Substantive Due Process (Count I). The Due Process Clause of the Fourteenth Amendment
provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To establish a substantive due process violation, a plaintiff must first show a deprivation of life, liberty, or property. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 196 (1989). The Due Process Clause generally confers no affirmative right to governmental aid, even when such aid may be necessary to protect life, liberty, or property interests. Id. However, a narrow exception exists for situations involving a “special relationship” between a plaintiff and the state. Id. at 200. ”[I]t is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause.” Id.
The Supreme Court has found such a relationship between
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the state and incarcerated prisoners, Estelle v. Gamble, 429 U.S. 97 (1976), and between the state and involuntarily committed mental patients, Youngberg v. Romeo, 457 U.S. 307 (1982). In DeShaney, however, the Supreme Court declined to find a special relationship between the state and children in the custody of private actors, such as their parents. Significantly, though, the Supreme Court noted that its holding might well differ if the plaintiffs suffered abuse at the hands of agents of the state, such as foster parents. DeShaney, 489 U.S. at 201 n.9 (“Had the State by the affirmative exercise of its power removed [the plaintiff] 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.”).
Although the First Circuit has not squarely addressed this issue, see J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 2010) (assuming arguendo that such a special relationship exists between foster children and the state), courts have found, with apparent unanimity, that such a relationship exists in the foster-care context. See, e.g., Yvonne L. v.
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N.M. Dep’t of Human Servs., 959 F.2d 883, 892-94 (10th Cir. 1992); Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 291-292 (8th Cir. 1993); K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); Taylor v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987); Doe v. New York City Dep’t of Social Servs., 649 F.2d 134, 141-42 (2nd Cir. 1981); J.R. v. Gloria, 599 F. Supp. 2d 182, 194-95 (D. R.I. 2009); Eric L. ex rel. Schierberl v. Bird, 848 F. Supp. 303, 307 (D. N.H. 1994).
This court agrees. The rationale of Youngberg, in which the court found a special relationship between the state and involuntarily committed mentally ill patients, applies with equal force here: “If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions.” 457 U.S. at 31516. Likewise, it must be unconstitutional for the state to take custody of abused and neglected children, arguably more vulnerable than the plaintiffs in both Estelle and Youngberg, and fail to make adequate efforts to ensure their
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safety. The fact that a state’s foster care system, no matter how deficient, arguably represents an improvement on the abused child’s prior living conditions does not diminish this entitlement. As the Seventh Circuit aptly explained, “[o]nce 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.” K.H., 914 F.2d at 849.
Two questions remain: (1) what are the contours of this right? and (2) what standard of culpability applies? The Supreme Court offered helpful guidance as to the first question in Youngberg. There, the Court observed that individuals placed involuntarily into state custody are entitled to “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.” Youngberg, 457 U.S. at 324. In other words, a state violates the Due Process Clause when it “fails to provide for [the plaintiff’s] basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety.” Deshaney, 489 U.S. at 200 (citing Youngberg).
The question here is whether the Supreme Court’s
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articulation of this right encompasses the following list of entitlements set forth by Plaintiffs in Count I of the complaint: (a) the right to “protection from unnecessary harm” while in state 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 such as safe and secure foster care placements, appropriate monitoring and supervision, placement in a permanent family, and adequate medical, dental, psychiatric, psychological, and educational services; (d) the right to treatment and care “consistent with the purpose of the assumption of custody by DCF;” (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 environment according to a foster child’s needs. (Dkt. No. 1, Compl. ¶ 303.)
Defendants do not challenge that the Constitution protects the rights discussed in subsections (a) through (d)
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of Count I. (Dkt. No. 20, Defs.’ Mem. at 77.) Indeed, Youngberg’s guarantee of reasonable care and safety clearly contemplates those rights. See Youngberg, 457 U.S. at 324. Defendants do, however, question Plaintiffs’ entitlement to the rights listed in subsections (e), (f), and (g).
At this stage in the litigation, the court cannot say categorically that Plaintiffs have no rights to the protections sought in subsections (e), (f), and (g). As noted, these protections include the right to remain in state custody no longer than necessary under the circumstances, the right to receive care and treatment in accordance with accepted standards of professional judgment, and the right to be placed in the least restrictive environment. (Dkt. No. 1, Compl. ¶ 303.) Accepting Plaintiffs’ allegations as true, this court finds it easily conceivable that Defendants’ failure to provide the above services deprived Plaintiffs of “conditions of reasonable care and safety” and “reasonably nonrestrictive confinement conditions” to which they are entitled. See Youngberg, 457 U.S. at 324; see also Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) (“This Court is satisfied that the right
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to be free from harm encompasses the right alleged by plaintiffs to appropriate conditions and duration of foster care.”). But see Eric L. ex rel. Schierberl v. Bird, 848 F. Supp. 303, 307 (D. N.H. 1994) (dismissing claims relating to stability in foster care because complaint “pleads no facts tending to establish that DCYS’s placement of children with successive foster parents is so devoid of justification as to give rise to a [Due Process] violation”).
To be clear, this decision does not imply that a blanket entitlement exists in all cases to the above protections; rather, it merely recognizes that Plaintiffs may, through discovery, show that the denial of these protections deprived them of reasonable care and safety. While “not every deviation from ideally safe conditions constitutes a violation of the [C]onstitution,” Santana v. Collazo, 714 F.2d 1172, 1183 (1st Cir. 1983), the Constitution does require the state to make reasonable efforts to meet the basic needs of these children and keep them reasonably free from harm. Youngberg, 457 U.S. at 324.
The final question concerns the standard of culpability the court must apply in assessing these alleged violations.
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Defendants argue that Plaintiffs must plausibly allege “conscience-shocking” conduct as described in County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998), while Plaintiffs urge the court to abandon the Lewis standard and apply the “professional judgment” standard set forth in Youngberg.
Youngberg and Lewis are not mutually exclusive. In Youngberg, the Supreme Court held that decisions made by professionals are “presumptively valid” and give rise to liability “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. In adopting this professional judgment standard, the Court distinguished Estelle v. Gamble, 429 U.S. 97 (1976), which applied an arguably more stringent “deliberate indifference” standard in the context of prisoners’ rights, 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
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punish.”4 Id. at 321-22. Twenty years later, in County of Sacramento v. Lewis,
the Court modified the substantive due process analysis: “in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” 523 U.S. at 847 n.8. Lewis took pains to explain that the deliberate indifference and professional judgment standards remain good law, serving as more precise articulations of the broader “shocks-theconscience” rule. See id. “Rules of due process are not . . . subject to mechanical application in unfamiliar territory” and, thus, “[d]eliberate indifference that shocks in one environment may not be so patently egregious in another.” Id. at 850. In other words, deliberately indifferent behavior does not always and necessarily shock
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 some instances it is true that the decision to apply one standard or the other might affect the outcome, but in this context the decision seems to matter little. See, e.g., Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894 (10th Cir. 1992) (“As applied to a foster care setting we doubt there is much difference in the two standards.”).
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the conscience, but it may shock the conscience under
certain circumstances. See J.R. v. Gloria, 593 F.3d 73, 80
(1st Cir. 2010).5 Youngberg also “can be categorized on
much the same terms.” Lewis, 523 U.S. at 852 n.12. Thus,
to draw out this comparison, a substantial departure from
accepted professional judgment may shock the conscience
under some circumstances but not others.
5 Although J.R. involved a § 1983 claim arising out of alleged abuse suffered by children in foster care, the court there applied the deliberate indifference standard. J.R., 593 F.3d at 73. However, J.R. is distinguishable for several reasons. First, neither of the parties apparently raised the issue of Youngberg’s professional judgment standard, and, therefore, the court never addressed Youngberg’s applicability. Second, J.R. only involved allegations of abuse within a foster home, whereas this case centers on alleged systemic failures within DCF. (Dkt. No. 1, Compl. ¶¶ 164 - 214.) Third, the abuse of the plaintiffs in J.R. was perpetrated by a third party, not the foster parents themselves, thus making the case more comparable to Deshaney. 593 F.3d at 73. Fourth, and finally, the plaintiffs in J.R. sought damages, not injunctive relief, which involves different considerations. See, e.g., K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (“[T]here might of course be broader liability in an injunctive suit against [state] officials . . . .”); LaShawn A. v. Dixon, 762 F. Supp. 959, 996 n.29 (D. D.C. 1991) (noting that a deliberate indifference standard “may be warranted [in damages claims] due to the chilling effect that an unfavorable judgment may have on municipal policymakers”); accord Kenny A. v. Perdue, No. 1:02-cv-1686, 2004 WL5503780, at *4 (N.D. Ga. Dec. 13, 2004); Braam ex rel. Braam v. State, 81 P.3d 851, 858-59 (Wash. 2003).
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Plaintiffs, then, are incorrect in suggesting that Lewis does not apply to this particular substantive due process claim.6 As the First Circuit unequivocally stated, “the shocks-the-conscience test . . . governs all substantive due process claims based on executive, as opposed to legislative, action.” Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010) (emphasis in original).
In sum, to establish a substantive due process claim, Plaintiffs must show that Defendants’ conduct represented a substantial departure from accepted professional judgment, which deprived them of conditions of reasonable care and safety, and that such conduct shocks the conscience. Here, Plaintiffs have alleged that Defendants abdicated their duty to use professional judgment by placing Plaintiffs in foster homes that presented known risks of harm, failing to monitor these improper placements, shuttling them among foster families without any hope of finding a permanent home, preventing visitation with parents and siblings, and failing
6 One of the lead cases relied upon by Plaintiffs, Braam ex rel. Braam v. State, 81 P.3d 851 (Wash. 2003), in fact reaches the same conclusion as this court. Id. at 85960.
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to provide various forms of essential treatment. (See Dkt. No. 1, Compl. ¶¶ 164 - 214.) Plaintiffs further allege that these failures resulted in great physical, mental, and emotional harm to the Plaintiff class. (Id.)
Although Defendants argue that such conduct cannot possibly rise to the level of conscience shocking, this court strongly disagrees. Moreover, all that is required here is that Plaintiffs demonstrate a plausible entitlement to relief. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Notwithstanding Defendants’ arguments to the contrary, these serious allegations of misconduct, if proven, may entitle Plaintiffs to relief for a violation of their substantive due process rights. Accordingly, Defendants’ motion to dismiss will be denied with respect to Count I.
2. The Right to Familial Integrity (Count II). In Count II, Plaintiffs allege that Defendants deprived them of liberty, privacy, and associational rights protected by the First, Ninth, and Fourteenth Amendments. (See Dkt. No. 1, Compl. ¶ 305.) More specifically, Plaintiffs allege that DCF failed to make appropriate use of kinship
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placements (id. ¶¶ 249-53), that DCF failed to “sustain family ties and support reunification” (id. ¶¶ 277-78), and that DCF failed to provide sufficient visitation with siblings and parents (id. ¶¶ 198, 285).
The Supreme Court has recognized a right to familial integrity derived from the broad right to association under both the First Amendment and the Ninth Amendment’s reservation of rights to the people. Roberts v. United States Jaycees, 468 U.S. 609, 617-20 (1984); Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The integrity of the family unit has found protection in the due process clause of the Fourteenth Amendment . . . and the Ninth Amendment.”). Federal courts disagree about whether the right to familial integrity is implicated when a state’s foster care system inhibits interactions between children and members of their immediate family. See, e.g., Kenny A. v. Perdue, 218 F.R.D. 277, 296 (N.D. Ga. 2003) (right implicated); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 513 (D. N.J. 2000) (right not implicated); Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996)(right not
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implicated); Eric L. v. Bird, 848 F. Supp. 303, 307 (D.N.H. 1994) (right implicated); Aristotle P. v. Johnson, 721 F. Supp. 1002, 1006 (N.D. Ill. 1989) (right implicated).
Not surprisingly, the critical factor distinguishing these cases is how broadly the court construes the right at issue. The courts dismissing such claims held that the right to familial integrity is only implicated when the state denies children any contact with family members, see, e.g., Charlie H., 83 F. Supp. 2d at 513, while other courts have determined that the right is implicated when children are denied any meaningful contact with family members, see, e.g., Kenny A., 218 F.R.D. at 296. This court finds the latter description more consistent with constitutional requirements. The narrow articulation set forth in Charlie H. and its sister cases would appear to preclude, for example, a claim by a plaintiff who has been allowed to visit one of his ten siblings once every five years. This standard is far too stringent. Because Plaintiffs here allege that they have been denied any meaningful contact with parents or siblings, Defendants’ motion to dismiss will be denied with respect to Count II. Further analysis may be
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appropriate once discovery is completed. 3. Procedural Due Process (Count IV). When examining procedural due process claims, courts
must take two steps: “the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010) (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Defendants argue that the Eleventh Amendment bars this claim, that the cited statutes do not create protected interests, and that existing procedures were in any event sufficient.
a. Stated-Created Property Interest. As an initial matter, Defendants argue that the Eleventh Amendment bars this claim because it is grounded in state-created rights. (Dkt. No. 20, Defs.’ Mem. at 107-08). Defendants rely on Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), which held that the Eleventh Amendment prohibits federal courts from ordering state officials to conform their conduct to state law. Id. at
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104. Defendants correctly observe that state law determines
whether a person has a constitutionally protected property interest. See Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .”). However, even though courts must look to state law to define the interest underlying a procedural due process claim, the ultimate issue is one of federal law. See, e.g., Hamm v. Latessa, 72 F.3d 947, 954 (1st Cir. 1995) (“[T]he question of whether a state law creates a liberty interest protected by the Due Process Clause is clearly one of federal constitutional law . . . .”); Henry Paul Monaghan, Of “Liberty” and “Property”, 62 Cornell L. Rev. 405, 435 (1977) (“The difference between the existence of an interest -- a matter of state law -- and its significance -- a matter of federal law -- is firmly established . . . .”). Thus, Pennhurst does not prevent federal courts from hearing a procedural due process claim simply because state law
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defines the property interest at stake. See, e.g., Williams v. Commonwealth of Ky., 24 F.3d 1526, 1543-44 (6th Cir. 1994); Brian A. v. Sundquist, 149 F. Supp. 2d 941, 953 (M.D. Tenn. 2000); Strauss v. Drew, 739 F. Supp. 1231, 1233 (N.D. Ill. 1990).
b. Property Interests. Mere expectations, abstract needs, and desires are not sufficient to create a property interest subject to procedural due process safeguards. Roth, 408 U.S. at 577. Rather, to have a constitutionally protected interest, a plaintiff must have a “legitimate claim of entitlement” to it. Id. This determination largely depends on the amount of discretion state law provides the decisionmaker to grant or deny the benefit. See Beitzell v. Jeffrey, 643 F.2d 870, 874 (1st Cir. 1981). Less discretion creates a greater likelihood that the statute confers a constitutionally protected interest. Id. (“[T]he more circumscribed . . . the government’s discretion (under substantive state or federal law) to withhold a benefit, the more likely that benefit constitutes ‘property’ . . . .”). Two factors indicating limited discretion are “the repeated use of
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explicitly mandatory language” and “specific substantive predicates” creating guidelines for the official’s decision. Hewitt v. Helms, 459 U.S. 460, 472 (1983), abrogated by Sandin v. Connor, 515 U.S. 472 (1995).7
Plaintiffs cite several Massachusetts statutes -- Mass. Gen. Laws ch. 119, §§ 23(c), 26B, 32, and 110 Code Mass. Regs. 7.124 -- which, they argue, confer various protected property interests. Specifically, Plaintiffs assert rights to (a) “placement of children in private families; early and periodic screening, diagnostic and treatment standards; [and] individualized health care plan[s]” under Mass. Gen. Laws ch. 119, § 32; (b) a “medical passport” under 110 Code Mass. Regs. 7.124; (c) “sibling visitation” under Mass. Gen.
7 The Supreme Court later abrogated Hewitt, but only insofar as it applied to prison regulations. See Sandin v. Connor, 515 U.S. 472, 482-84 (1995) (noting the “undesirable effects” of Hewitt on prison management and ultimately condemning “the search for a negative implication from mandatory language in prisoner regulations”); see also Hamm, 72 F.3d at 954 (describing this “tectonic” shift). In fact, the Court noted the continuing vitality of Hewitt in other contexts. See Sandin, 515 U.S. at 482 (observing that Hewitt’s methodology “may be entirely sensible in the ordinary task of construing a statute defining rights and remedies available to the general public”).
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Laws ch. 119, § 26B; and (d) “placement with relatives, other adult persons who have played significant positive roles in the child’s life, and any minor siblings or halfsiblings” under Mass. Gen. Laws ch. 119, § 23(c). (Dkt. No. 1, Compl. ¶ 309.)
Defendants’ motion does not challenge (nor does it expressly concede) Plaintiffs’ assertion that they have rights to early and periodic screening, diagnostic and treatment standards, individualized health care plans, and medical passports, as set forth in Mass. Gen. Laws ch. 119, § 32 and 110 Mass. Code Regs. 7.124. (See Dkt. No. 20, Defs.’ Mem. at 111-12.) Defendants’ silence in the face of the mandatory language employed in the cited statutes speaks volumes. See Mass. Gen. Laws ch. 119, § 32 (stating that DCF “shall insure that every foster child upon entry into the foster care system shall be screened and evaluated under the early and periodic screening, diagnostic and treatment standards established by Title XIX of the Social Security Act”) (emphasis added); see also 110 Mass. Code Regs. 7.124 (mandating that DCF “shall implement a program of utilization of a ‘medical passport’ for all children in
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substitute care”) (emphasis added). Clearly these statutes create property interests subject to protection under the Constitution’s due process clause.
As to the remaining property interests asserted under Count IV, Defendants argue that the relevant statutory provisions do not create such entitlements because they are conditioned on a determination by DCF that the action is in “the best interests of the child.” Under Mass. Gen. Laws ch. 119, § 26B, for instance, DCF “shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings . . . .” While such provisions vest significant discretion in DCF, the court is not persuaded by Defendants’ arguments.
Grants of discretion, even broad discretion, to a decisionmaker are not inevitably dispositive of a due process claim. In fact, on at least two occasions the Supreme Court has found that state law created a constitutionally protected interest despite vesting “very broad discretion” in state officials. Bd. of Pardons v.
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Allen, 482 U.S. 369, 382 (1987); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 13 (1979). Given that Allen and Greenholtz involved parole statutes, they are not, admittedly, directly controlling. See Greenholtz, 442 U.S. at 12 (“Whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.”). The Court’s reasoning, however, is instructive.
In Allen, one regulation at issue required that parole “shall be ordered” if certain conditions are met, including a condition that parole is in “the best interests of society.” 482 U.S. at 376 (quoting Mont. Code Ann. § 46-23201 (1985)). Concluding that these regulations created a constitutionally protected interest, the Court reiterated its earlier holding in Greenholtz that such discretion was “not incompatible with the existence of a [protected] interest . . . when [specific action] is required after the Board determines (in its broad discretion) that the necessary prerequisites exist.” Id. (emphasis in original).
While this case arises in a different context, the critical issue is markedly similar. The relevant provisions of Massachusetts state law mandate that children in DCF
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custody “shall be placed in private families,” Mass. Gen. Laws ch. 119, § 32 (emphasis added), that DCF “shall . . . ensure that [such] children shall have access to and visitation with siblings,” Mass. Gen. Laws ch. 119, § 26B(b) (emphasis added), and that DCF “shall immediately commence a search to locate any relative of the child or other adult person who has played a significant positive role in that child’s life,” Mass. Gen. Laws ch. 119, § 23(c) (emphasis added). While these provisions are conditioned on the looser requirement that such action be in the “best interests of the child,” e.g., Mass. Gen. Laws ch. 119, § 26B(b), once this prerequisite is met the law requires DCF to take the above actions.
In addition, although the “best interests” standard is somewhat vague, it is a far cry from laws that provide “unfettered discretion” to state officials. See, e.g., Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (finding no protected interest where regulation provided “unfettered discretion” and decisionmaker could “deny the requested relief for any constitutionally permissible reason or for no reason at all”). Rather, it presents children in DCF
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custody with an assurance that the state will provide the above benefits as long as those benefits reflect the child’s best interests. Assuming that children have a significant interest in growing up in a private home rather than an institution, and in maintaining ties with their parents and siblings -- assumptions that are virtually self evident -- a decision not to provide these benefits requires considerable evidence of countervailing risks of harm. In reality, then, these statutes limit DCF’s discretion much more than a cursory reading might suggest.
In sum, Plaintiffs’ asserted interests under Mass. Gen. Laws ch. 119, §§ 32, 26B, and 23(c) are more than abstract needs or desires; they are legitimate claims of entitlement. See Roth, 408 U.S. at 577; see also Jones-Booker, 16 F. Supp. 2d at 58-60 (finding that plaintiff had a legitimate entitlement to compensation under Federal Employees Compensation Act (“FECA”) because FECA mandated that “the United States shall pay compensation” unless the injury or death fell within one of three exceptions). These interests are therefore subject to protection under the due process clause.
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c. What Process is Due. The final step in the due process analysis requires this court to determine whether the state has provided sufficient procedural safeguards before depriving Plaintiffs of these protected interests. It is too early to resolve this issue. Discovery will give the parties the opportunity to produce evidence and to argue the antecedent issue of whether a deprivation in fact occurred. Only at that time will the court be able to make an informed decision about the sufficiency of the state’s pre-deprivation process. See, e.g., Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) (“Whether, as defendants argue, state law affords plaintiffs a mandatory review procedure which would satisfy due process and whether plaintiffs have been deprived of that process are matters better left for trial.”). Since the court is not now in a position to make such a fact-bound decision, Defendants’ motion to dismiss will be denied with respect to Count IV. E. Plaintiffs’ Statutory Claims under the AACWA (Count III). Section 1983 provides a cause of action against any
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person acting under color of state law who deprives a person of “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. However, “[n]ot all violations of federal law give rise to § 1983 actions: ‘[the] plaintiff must assert the violation of a federal right, not merely a violation of federal law.’” Rio Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 72 (1st Cir. 2005) (quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997)) (emphasis in original). Such a right must be “unambiguously conferred” by the statutory provision at issue. Id. at 7273. The Supreme Court has laid out a three-part test to determine whether a provision creates a “right” that is enforceable under § 1983. Courts must consider (1) whether the provision contains “rights-creating language”; (2) whether the provision had an aggregate as opposed to an individualized focus; and (3) whether the statute contains another enforcement mechanism through which an aggrieved individual can obtain review.8 Gonzaga Univ. v. Doe, 536
8 Gonzaga refined the earlier three-part test set forth in Blessing, which considered: (1) whether Congress intended that the provision in question benefit the plaintiff; (2) whether the right supposedly protected by the statute is vague and amorphous so that its enforcement would strain
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U.S. 273, 287-90 (2002) (holding that a provision of the Family Educational Rights and Privacy Act did not create a privately enforceable right). “This test is merely a guide, however, as the ultimate inquiry is one of congressional intent.” Rio Grande, 397 F.3d at 73.
The AACWA, which constitutes Parts B and E of Title IV of the Social Security Act, is a federal spending statute under which the federal government reimburses states for expenses incurred in administering foster care and adoption services. Funding is conditioned upon the state satisfying a series of requirements imposed by the Act, which includes submitting a state plan for the provision of foster care and adoption assistance approved by the Secretary of Health and Human Services.
Defendants assert that Count III, which alleges multiple violations of the AACWA, should be dismissed because the AACWA does not confer private rights. More
judicial competence; and (3) whether the provision unambiguously imposes a binding obligation on the States. Blessing, 520 U.S. at 340. The First Circuit acknowledged this distinction and followed the language used in Gonzaga. See Rio Grande, 397 F.3d at 73. This court, then, will do the same.
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specifically, they argue that (1) the Act is generally unenforceable because it merely encourages states to take certain actions to receive federal funding; and (2) the specific provisions relied on by Plaintiffs fail the test set forth in Gonzaga University v. Doe, 536 U.S. 273 (2002). For the reasons discussed below, this court holds that the Act does create privately enforceable rights in the cited provisions.
1. General Enforceability of the AACWA. Defendants first argue that the Act is generally unenforceable because it ties federal funding to substantial conformity with state plan requirements and allows states to improve their operations before funding is withheld. Thus, Defendants reason, the statute only creates “system-wide goals” as opposed to rights. (Dkt. No. 20, Defs.’ Mem. at 99.) This argument is foreclosed by Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983), in which the First Circuit considered a nearly identical class action brought by children in the Massachusetts foster care system under the then-newly instituted AACWA seeking relief for alleged
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failures of DCF (then “DSS”) to comply with case plan and
review obligations. In Lynch, the First Circuit rejected
the defendants’ argument that “the existence of the
Secretary’s power to withhold federal funds from states
precludes individual enforcement of rights against the
states.” Id. at 510-11. The court then expressly held that
the AACWA confers an enforceable right to a case plan
documenting the steps taken to identify and secure a
permanent home. Id. Thus, the fact that the AACWA requires
states to comply with its regulations in order to receive
federal funding does not preclude a finding that the statute
also confers privately enforceable rights.9
9 Defendants attempt, unsuccessfully, to bolster this argument by relying on the Supreme Court’s decision in Suter v. Artist M., 503 U.S. 347 (1992). In Suter, the Supreme Court held that Section 671(a)(15), a single provision of the AACWA (not at issue here) providing that “reasonable efforts shall be made to preserve and reunify families,” did not create a private right of action because it was too vague. Id. at 363. Suter also contained dicta implying that the AACWA as a whole might not be privately enforceable because of the statute’s requirement that states prepare and file a “plan,” which conditioned federal funding on substantial compliance with the plan. See id. at 358.
Two years later, concerned that “Suter v. Artist M. affects . . . the enforceability of [AACWA]” and that it “could result in the elimination of the ability of beneficiaries of the State plan titles of the Social Security Act, primarily children and families, to sue to
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2. Applying the Gonzaga Test to Individual Provisions of the AACWA.
Plaintiffs assert two rights under the AACWA: (1) a
right to a case plan containing documentation of the steps
taken to identify and secure a permanent home pursuant to 42
U.S.C. §§ 671(a)(16)10 and 675(1)(E); and (2) a right to
foster care maintenance payments paid to foster care
providers pursuant to 42 U.S.C. §§ 671(a)(1), 671(a)(11),
671(a)(12), 672(a)(1), and 675(4)(A).
With respect to Plaintiffs’ asserted right to a case
plan, Section 671(a)(16) reads as follows:
enforce the Act’s requirements,” H.R. Rep. No. 102-631, at 300, Congress unequivocally responded by enacting what has become known as the “Suter fix,” an amendment to the Social Security Act that disclaimed any intent to foreclose private rights of action under the AACWA and the other “State plan” titles of the Social Security Act. See 42 U.S.C. § 1320a-2 (stating that provisions of the Social Security Act are “not to be deemed unenforceable because of [their] inclusion in a section of the Act requiring a State plan or specifying the required contents of a State plan”).
10 Although § 671(a)(16) does not appear in the complaint, Plaintiffs’ briefs make it clear that they are asserting a right to an individualized case plan under § 671(a)(16) in conjunction with § 675(1)(E), which merely defines the term “case plan.” The absence of this provision in the complaint appears to be a simple oversight, which Defendants do not challenge in their briefs and which this court need not concern itself with here.
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In order for a State to be eligible for payments under this [statute], it shall have a plan approved by the Secretary which . . .
(16) provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child.
42 U.S.C. § 671(a)(16). Section 675(1)(E) then defines
“case plan.”11
With respect to Plaintiffs’ asserted right to foster
care maintenance payments, §§ 671(a)(1),671(a)(11), and
671(a)(12) read as follows:
In order for a State to be eligible for payments under this [statute], it shall have a plan approved by the Secretary which . . .
11 “The term ‘case plan’ means a written document which includes at least the following: . . . In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems to facilitate orderly and timely in-State and interstate placements.” 42 U.S.C. § 675(1)(E).
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(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;
. . . .
(11) provides for periodic review of the standards referred to in the preceding paragraph and amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness;
(12) provides for granting an opportunity for a fair hearing before the State agency to any individual whose claim for benefits available pursuant to this part is denied or is not acted upon with reasonable promptness.
42 U.S.C. §§ 671(a). Section 672 contains similar language,
stating that “each State with a plan approved under this
part shall make foster care maintenance payments” if certain
conditions are met. 42 U.S.C. § 672(a)(1). Section
675(4)(A) defines “foster care maintenance payments.”12
12 “The term ‘foster care maintenance payments’ means payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, reasonable travel to the child's home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence.” 42 U.S.C. § 675(4)(A).
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Federal courts are divided as to whether the AACWA
creates privately enforceable rights to either a case plan13
or foster care maintenance payments.14 As noted, the First
Circuit in Lynch held that the AACWA confers an enforceable
right to a case plan under § 671(a)(16) containing the
elements required in § 675(1) -- two provisions at issue
here. However, the second of these two provisions, §
675(1), was amended in 1997 to add subsection (E), which is
13 A majority of courts has found that the AACWA establishes a privately enforceable right to a case plan. See, e.g., L.J. v. Massinga, 838 F.2d 118, 124 (4th Cir. 1988); Lynch, 719 F.2d at 512; Clark K., 2007 WL 1435428, at *10; Kenny A., 218 F.R.D. at 292; Jeanine B. ex rel. Blondis v. Thompson, 877 F. Supp. 1268, 1283-84 (E.D. Wis. 1995); B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989). But see 31 Foster Children, 329 F.3d at 1271-72; Carson P., 240 F.R.D. at 544; Olivia Y., 351 F. Supp. at 562; Charlie H., 83 F. Supp. at 489.
14 A majority of courts also has found that the AACWA establishes a privately enforceable right to foster care maintenance payments. See, e.g., Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 980 (2010); C.H. v. Payne, 683 F. Supp. 2d 865, 877 (S.D. Ind. 2010); Cal. Alliance of Child and Family Servs. v. Allenby, 459 F. Supp. 2d 919, 925 (N.D. Cal. 2006); Mo. Childcare Ass’n v. Martin, 241 F. Supp. 2d 1032, 1040-41 (W.D. Mo. 2003); Kenny A., 218 F.R.D. at 292; LaShawn A., 762 F. Supp. at 989. But see D.G. v. Henry, 594 F. Supp. 2d 1273, 1278 (N.D. Okla. 2009); Carson P. v. Heineman, 240 F.R.D. at 540-41.
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the particular subsection Plaintiffs rely upon in this litigation. Thus, although the right to a case plan was clearly upheld in Lynch, the First Circuit did not squarely address the right Plaintiffs are now asserting, which requires this court to conduct an independent analysis.15
Each of the above provisions satisfies the first Gonzaga factor. As noted, the first Gonzaga factor requires “rights-creating language,” which consists of “mandatory, rather than precatory, terms.” 536 U.S. at 295 (quoting Blessing, 520 U.S. at 340-41). Additionally, the rights should be “phrased in terms of the persons benefitted . . . with an unmistakable focus on the benefitted class” and contain “individually focused terminology.” Id. at 284 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979)) (emphasis in original).
Such language is readily discernible in the above-cited
15 While the provisions at issue in Lynch are not identical to the provisions at issue here, this distinction is ultimately inconsequential. Section 675(1) merely lists the elements that constitute a “case plan” under the other sections of the Act, and the Gonzaga analysis, as explained in text, is unaffected by the differences in these elements.
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provisions. For instance, each provision expresses a clear mandate by using the term “shall.” See, e.g., 42 U.S.C. § 671(a)(16) (requiring that states “shall have a plan approved by the Secretary which . . . provides for the development of a case plan (as defined in section 675(1) of [AACWA]) for each child receiving foster care maintenance payments under the State plan”) (emphasis added); 42 U.S.C. § 672(a)(1) (requiring that “each State with a plan approved under this part shall make foster care maintenance payments on behalf of each child”) (emphasis added).
Each of the cited provisions similarly discusses how the state must distribute benefits to each child. See, e.g., id. (requiring that states “shall have a plan approved by the Secretary which . . . provides for the development of a case plan (as defined in section 675(1) of [AACWA]) for each child receiving foster care maintenance payments under the State plan . . . .”) (emphasis added); 42 U.S.C. § 672(a)(1) (requiring that “each State with a plan approved under this part shall make foster care maintenance payments on behalf of each child”) (emphasis added). Plainly, these directives are both couched in mandatory terms and are
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unmistakably focused on the benefitted class, i.e., foster children.
The second Gonzaga factor also favors a finding that the AACWA creates privately enforceable rights; the cited provisions indisputably have an “individualized,” rather than “aggregate,” focus. See Gonzaga, 536 U.S. at 288. Provisions with an aggregate focus “speak only in terms of institutional policy and practice” and “are not concerned with whether the needs of any particular person have been satisfied.” Id. The fact that these provisions are “embedded within the requirements for a state plan” does not transform them into an institutional policy. See Rio Grande, 397 F.3d at 74 (“The mere fact that all the Medicaid laws are embedded within the requirements for a state plan does not, by itself, make all of the Medicaid provisions into ones stating a mere institutional policy or practice rather than creating an individual right.”). Moreover, as observed above, the AACWA provisions repeatedly refer to “each child,” thus illustrating an individualized focus. See Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 980 (2010) (distinguishing AACWA from statute at issue in
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Gonzaga and stating that § 672 of the AACWA, which provides for foster care maintenance payments, “focuses squarely on the individuals protected, rather than the entities regulated”).
These provisions also satisfy the third Gonzaga factor because the AACWA does not contain an alternative enforcement mechanism. In Gonzaga, the Supreme Court noted that students and parents who suspected a violation of the Family Educational Rights and Privacy Act could file written complaints with a federal review board, thereby triggering an investigation and the possibility of relief. 536 U.S. at 288. In contrast, Congress provided for no individualized federal review mechanism in the AACWA. See H.R. Rep. No. 102-631, at 365 (“[T]here is no procedure . . . by which program beneficiaries can trigger a [Department of Health and Human Services] investigation or compliance proceeding for a State’s failure to have a plan that meets the State plan requirements or to administer such a plan in accordance with such requirements.”). While Defendants argue that the AACWA establishes a “comprehensive review and enforcement infrastructure” by requiring periodic review to determine
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which states are in substantial conformity with the Act, (Dkt. No. 20, Defs.’ Mem. at 98), this purely institutional review process is not the same as an individualized enforcement mechanism. See Lynch, 719 F.2d at 510-11 (holding that “nothing in the language or structure of Title IV-E suggests that Congress meant section 671(b) [which provides for periodic review by the Secretary] to be an exclusive remedy”); 31 Foster Children v. Bush, 329 F.3d 1255, 1272 (11th Cir. 2003) (holding that the Act “contains no mechanism by which aggrieved individuals can enforce its provisions”).
In sum, application of the Gonzaga factors makes it clear that Congress intended to create privately enforceable rights to individualized case plans and foster care maintenance payments under the AACWA. Accordingly, Defendants’ motion to dismiss will be denied with respect to Count III.
IV. CONCLUSION For the foregoing reasons, Defendant Patrick’s Motion to Dismiss (Dkt. No. 17) and Defendants’ Motion to Dismiss (Dkt No. 18) are hereby DENIED in their entirety. Due to
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Case 3:10-cv-30073-MAP Document 43 Filed 01/04/11 Page 69 of 69 time constraints, the hearing on the Motions to Dismiss left inadequate time for argument regarding Plaintiffs’ pending Motion for Class Certification (Dkt. No. 2). The clerk will set a date for further argument on this motion.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
69

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS WESTERN DIVISION

CONNOR B., by his next friend, ROCHELLE VIGURS, et al.,
Plaintiffs, v. DEVAL L. PATRICK, et al.,
Defendants.

CIVIL ACTION NO. 10-CV-30073-MAP

THE MOTION OF THE HON. DEVAL L. PATRICK TO DISMISS THE COMPLAINT AGAINST HIM
PURSUANT TO FED. R. CIV. P. 12(b)(1) AND 12(b)(6) Defendant Deval L. Patrick, in his official capacity as Governor of the Commonwealth of Massachusetts, moves to dismiss plaintiffs’ complaint against him pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because the Complaint fails to set forth any factual allegations establishing a sufficient connection between the Governor and the challenged conduct, which concerns administration of the Commonwealth’s foster care system, the claims against the Governor are barred by the Eleventh Amendment to the United States Constitution. The grounds for the motion are set forth at greater length in the Memorandum of Law in Support of Defendants’ Motion to Dismiss the Complaint (Argument Section III). Accordingly, the Complaint as against the Governor should be dismissed.

REQUEST FOR HEARING
Pursuant to Local Rule 7.1(D), defendants request a hearing on the merits of this
motion.
Respectfully submitted,
THE HON. DEVAL L. PATRICK, GOVERNOR, SECRETARY JUDYANN BIGBY, AND COMMISSIONER ANGELO MCCLAIN,
By their attorneys,
MARTHA COAKLEY ATTORNEY GENERAL
/s/ Amy Spector Amy Spector, BBO No. 557611 Robert L. Quinan, Jr., BBO No. 553010 Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 963-2076 amy.spector@state.ma.us
August 20, 2010
Certification Pursuant to Local Rule 7.1(A)(2) I certify that co-counsel Robert L. Quinan and I have conferred with counsel for plaintiffs, prior to the filing of this motion, but we did not reach agreement with plaintiffs’ counsel on the issues presented in the motion.
/s/ Amy Spector______________ Amy Spector
Certificate of Service I hereby certify that the above motion was filed through the Electronic Case Filing (ECF) system on August 20, 2010, and thus copies will be sent electronically to plaintiffs’ counsel, who are identified as registered participants on the Court’s Notice of Electronic Filing.
/s/ Amy Spector Amy Spector
2

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS WESTERN DIVISION

CONNOR B., by his next friend, ROCHELLE VIGURS, et al.,
Plaintiffs, v. DEVAL L. PATRICK, et al.,
Defendants.

CIVIL ACTION NO. 10-CV-30073-MAP

DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) AND 12(b)(6)
Defendants Deval L. Patrick, in his official capacity as Governor of the Commonwealth of Massachusetts, Judyanne Bigby, in her official capacity as Secretary of the Massachusetts Executive Office of Health and Human Services, and Angelo McClain, in his official capacity as Commissioner of the Massachusetts Department of Children and Families, move to dismiss plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Because the pendency of this action, and the relief sought by plaintiffs, would interfere with ongoing care and protection proceedings in the Massachusetts Juvenile Court, this Court should abstain from exercising jurisdiction, pursuant to Younger v. Harris, 401 U.S. 37 (1971). Alternatively, because Plaintiffs have failed to state a claim upon which relief can be granted, this Court should dismiss the Complaint in its entirety. The Fourteenth Amendment does not afford Plaintiffs the rights they assert in Counts I

and IV of their complaint, and the First and Ninth Amendments do not afford plaintiffs
the rights that they claim have been violated in Count II. In addition, the federal statute
that plaintiffs seek to enforce in Count III – the Adoption Assistance and Child Welfare
Act, 42 U.S.C. § 670, et seq. – does not give rise to a private right of action.
This motion is supported by the accompanying Memorandum of Law in Support
of Defendants’ Motion to Dismiss the Complaint, as well as the Affidavit of Virginia
Peel, General Counsel for the Department of Children and Families.
REQUEST FOR HEARING
Pursuant to Local Rule 7.1(D), defendants request a hearing on the merits of this
motion.
Respectfully submitted,
THE HON. DEVAL L. PATRICK, GOVERNOR, SECRETARY JUDYANN BIGBY, AND COMMISSIONER ANGELO MCCLAIN,
By their attorneys,
MARTHA COAKLEY ATTORNEY GENERAL
/s/ Amy Spector Amy Spector, BBO No. 557611 Robert L. Quinan, Jr., BBO No. 553010 Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 963-2076 amy.spector@state.ma.us
August 20, 2010
2

Certification Pursuant to Local Rule 7.1(A)(2) I certify that co-counsel Robert L. Quinan and I have conferred with counsel for plaintiffs, prior to the filing of this motion, but we did not reach agreement with plaintiffs’ counsel on the issues presented in the motion.
/s/ Amy Spector______________ Amy Spector Certificate of Service I hereby certify that the above motion was filed through the Electronic Case Filing (ECF) system on August 20, 2010, and thus copies will be sent electronically to plaintiffs’ counsel, who are identified as registered participants on the Court’s Notice of Electronic Filing. /s/ Amy Spector Amy Spector
3

 
 Case 3:10-cv-30073-MAP Document 79 Filed 11/10/11 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CONNOR B., by his next friend, ROCHELLE VIGURS, ET AL.,
Plaintiffs
v.
DEVAL L. PATRICK, ET AL., Defendants

) ) ) ) ) ) C.A. No. 10-cv-30073-MAP ) ) )

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION TO DECERTIFY PLAINTIFFS’ CLASS AND DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING A RULING ON
THEIR MOTION TO DECERTIFY THE CLASS (Dkt. Nos. 66, 67)
November 10, 2011
PONSOR, D.J.
I. INTRODUCTION
This case is before the court on Defendants’ Motion to
Decertify Plaintiffs’ Class Pursuant to Fed. R. Civ. P.
23(c), (Dkt. No. 66), and Defendants’ Motion to Stay
Discovery Pending a Ruling on their Motion to Decertify the
Class, (Dkt. No. 67). On February 28, 2011, the court
allowed Plaintiffs’ Motion to Certify Class and Appoint
Class Counsel, (Dkt. No. 2), defining the class as “all
children who are now or will be in the foster care custody

Case 3:10-cv-30073-MAP Document 79 Filed 11/10/11 Page 2 of 19
of the Massachusetts Department of Children and Families as a result of abuse or neglect.” Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 291 (D. Mass. 2011). Fed. R. Civ. P. 23(f) gives litigants the right to appeal an order granting class certification within fourteen days. Defendants did not exercise that right. On June 20, 2011, the U.S. Supreme Court handed down its opinion in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). Defendants filed their motion to decertify on September 6, 2011, based upon the holding in that case. For the reasons stated below, the court finds that Wal-Mart does not warrant revisiting the court’s previous order granting class certification.
At times during the motion hearing, Defendants appeared to argue that the court should not only analyze the impact of the Wal-Mart decision on its original certification order, but should also reexamine the general appropriateness of that order. The court will not do so for two reasons. First, this approach would undermine the fourteen-day deadline to appeal a class certification order and would essentially give an unhappy litigant the power to seek
2

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reconsideration of an order at any time. Second, and more fundamentally, the court remains convinced that the original certification of the class is sound.
At the conclusion of the motion hearing, the court indicated that it would deny Defendants’ Motion for Decertification (Dkt. No. 66). This memorandum will set forth the court’s rationale. The court will also deny Defendants’ Motion to Stay Discovery Pending Resolution of their Motion to Decertify (Dkt. No. 67), as moot.
II. BACKGROUND The Plaintiffs’ class consists of all children who are or will be in the custody of the Massachusetts Department of Children and Families (“DCF”) as a result of abuse or neglect by their parents. Plaintiffs allege that overarching systemic deficiencies within DCF expose the approximately 8,500 children in DCF custody, as well as children who will be in DCF custody in the future, to potential harm. These deficiencies include among other things: excessive caseloads, an insufficient array of foster family homes, inadequate supervision and monitoring of private providers, an incomplete and unevenly distributed
3

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array of services, and inadequate caseworker and supervisor training. The six named representatives suffered alleged harms as a result of these deficiencies, which Plaintiffs claim are representative of the harms faced by all children in DCF custody. The court’s earlier order granting class certification detailed these alleged harms and the court will not review the allegations here. See Connor B., 272 F.R.D. at 291-92.
III. DISCUSSION Fed. R. Civ. P. 23(a) permits representative parties to bring suit on behalf of a class only if: (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. The representative parties must also satisfy one of the additional requirements set out in Fed. R. Civ. P. 23(b). In this case, the court granted class certification under Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or
4

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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).
Defendants now request the court to decertify Plaintiffs’ class, arguing that Wal-Mart changed the standards for class certification and calling for a reexamination of the court’s original certification order. The court disagrees with Defendants’ characterization of Wal-Mart’s impact on this case and declines to reexamine its original analysis. A. The Wal-Mart Decision.
1. The Holding in Wal-Mart. In Wal-Mart, the U.S. Supreme Court considered the certification of a class consisting of approximately one and a half million current and former female employees of WalMart who alleged that their local supervisors’ discretion over pay and promotions violated Title VII by discriminating against women. 131 S.Ct. at 2547. The Wal-Mart plaintiffs did not allege that Wal-Mart had an express corporate policy of discriminating against women. Instead, they argued that
5

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Wal-Mart’s “strong and uniform ‘corporate culture’” permitted bias against women to “infect” the decision making of thousands of individual store supervisors, who had wide discretion over pay and promotions. Id. at 2548. The plaintiffs sought injunctive and declaratory relief, as well as an award of backpay. Id. at 2547.
In a five to four decision, the Supreme Court concluded that class certification was inappropriate in Wal-Mart, because plaintiffs failed to show that “there are questions of law or fact common to the class,” as required by Rule 23(a)(2). Id. at 2554-57. According to the Court, to meet the commonality requirement, a plaintiff had to show that class members “suffered the same injury,” which required more than simply suffering a violation of the same provision of law. Id. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). To make such a showing, a plaintiff had to demonstrate that the class claims “depend upon a common contention” and that determining the truth or falsity of that contention “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Dissimilarities within the proposed class
6

Case 3:10-cv-30073-MAP Document 79 Filed 11/10/11 Page 7 of 19
would be potentially detrimental to satisfying the
commonality requirement. Id.
The Court explained that, where plaintiffs were not
alleging an explicit policy of discrimination, one way to
meet the commonality requirement was by offering
“significant proof” of a “general policy of discrimination.”
Id. at 2553. The Court held that such proof was absent in
the case before it.
The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s ‘policy’ of allowing discretion by local supervisors over employment matters. . . .
. . . In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.
Id. at 2554 (emphasis in original). The Court also noted
that
“[class members] held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed.”
Id. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc., 603
F.3d 571, 652 (9th Cir. 2010) (Kozinski, J. dissenting)).
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These differences were too great to satisfy the commonality requirement.
In the second part of its decision, the Court held unanimously that plaintiffs’ claims for backpay were also improperly certified under Rule 23(b)(2). According to the Court, claims for “individualized relief” do not meet the requirements of Rule 23(b)(2). Id. (emphasis in original). Consequently, the Court held that claims for monetary relief that are not incidental to injunctive or declaratory relief –- including plaintiffs’ claims for backpay -- cannot be certified under Rule 23(b)(2). Id.
2. Application of Wal-Mart to the Facts. Defendants contend that Wal-Mart created a new standard that courts must apply when analyzing class certification requirements, and thus this court must reconsider its original certification order under the new standard. First, Defendants argue that, in light of Wal-Mart, Plaintiffs fail to meet the commonality requirement under Rule 23(a)(2) because they have not established the existence of any common question. Second, Defendants argue that Plaintiffs do not meet the additional requirements under Rule 23(b)(2),
8

Case 3:10-cv-30073-MAP Document 79 Filed 11/10/11 Page 9 of 19
because no single injunction or declaratory judgment could provide relief to each member of the class.
However, the decision in Wal-Mart, while generally relevant, has little explicit application to this much different case. Contrary to Defendants’ contention, the Wal-Mart decision did not change the law for all class action certifications. Instead, it provided guidance on how existing law should be applied to expansive, nationwide class actions that are very different from the case currently before the court.
a. Standard of Analysis. Defendants rely on one passage from the Wal-Mart decision to support their contention that Wal-Mart rejected previous class action precedent by requiring a higher standard of analysis: “We recognized in Falcon that . . . certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” Id. at 2551 (quoting Falcon, 457 U.S. at 160-61). However, as this quote in its entirety makes clear, the “rigorous analysis” standard was not novel to Wal-Mart. Instead, the Court clearly affirmed
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the standard set by its previous decision in Falcon. Falcon, 457 U.S. at 160-61; see also Wal-Mart, 131 S.Ct. at 2557, n.10 (rejecting the dissent’s attempt to distinguish Falcon). The cases this court relied on in its original certification order were decided after Falcon and relied on Falcon when determining what standard of analysis to apply. See In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d at 17. Thus, Wal-Mart does not warrant reanalyzing the certification order under any new standard of law.
Defendants further argue that Wal-Mart compels this court to go beyond the pleadings, and perhaps conduct an evidentiary hearing, before granting class certification. This court declined to do this in its original order. However, the Supreme Court at no point in its decision implied that rigorous analysis will always require courts to go beyond the pleadings. Wal-Mart, 131 S.Ct. at 2551 (“Frequently . . . ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s claim.”). It stated only that in the case before it “proof of commonality necessarily overlaps with respondents’ merits contention
10

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that Wal-Mart engages in a pattern or practice of discrimination . . . because, in resolving an individual’s Title VII claim, the crux of the inquiry is ‘the reason for a particular employment decision.’” Id. at 2552. This rationale does not apply here where the alleged constitutional violations flow from structural infirmities within a unified child welfare system and where there is no requisite showing of common intent. The court remains convinced that, while a preliminary evidentiary hearing may be required before certifying some class actions, it is not required in this case. See Connor B., 272 F.R.D. at 294.
b. Commonality. Defendants next argue that, pursuant to the holding in Wal-Mart, the dissimilarities among the 8,500 class members in this case -- including differences in social worker assignments, goals, physical and mental health needs, and length of stay in DCF custody -- make class certification improper, because there is no common question that could generate a common answer to resolve an issue central to the litigation. This case, according to Defendants, is analogous to Wal-Mart because the class members’ alleged
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harms are caused by individual social workers who exercise wide discretion in determining what is in the best interest of the child rather than by a uniform organization policy that dictates how discretion should be exercised. Furthermore, Defendants argue that each decision requires an assessment of the child’s individual needs. In light of these dissimilarities and discretionary decisionmaking, Defendants claim that Plaintiffs have not provided the “glue” to hold these individual determinations together and thus fail the commonality requirement. Wal-Mart, 131 S.Ct. at 2552 (“Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” (emphasis in original)).
This argument, however, is largely identical to the argument this court rejected in its original certification order. See Connor B., 272 F.R.D. at 295 (“Plaintiffs have satisfied the requirement of commonality by alleging that various flaws within DCF, outlined with specificity in the complaint, expose the entire Plaintiff class to an
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unreasonable risk of harm in violation of their constitutional rights.”). Wal-Mart has no effect on that decision.
Unlike the plaintiffs in Wal-Mart, who did not allege any specific, overarching policy of discrimination, Plaintiffs have alleged specific and overarching systemic deficiencies within DCF that place children at risk of harm. These deficiencies, rather than the discretion exercised by individual case workers, are the alleged causes of class members’ injuries, because they undermine DCF’s ability to timely and effectively implement case workers’ decisions. These systemic shortcomings provide the “glue” that unites Plaintiffs’ claims. Thus, this class of 8,500 children within the custody of a single agency in a single state that suffers from the same overarching systemic deficiencies is fundamentally different from the class in Wal-Mart, which consisted of one and a half million class members spread out across the country in thousands of stores with varying regional policies. See M.D. v. Perry, C.A. No. C-11-84, Slip. Op. at 2-3 (S.D. Tex. July 21, 2011) (“Whereas ‘the respondents [in Wal-Mart] wish[ed] to sue about literally
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millions of employment decisions at once,’ which occurred all around the nation, here Plaintiffs’ claimed injuries result from the common alleged deficiencies in the Texas foster care system. Those alleged deficiencies are the ‘glue’ holding the claims together here. Plaintiffs have much more in common then did the million-plus, nationwide class at issue in Wal-Mart.” (internal citation omitted)). As such, Wal-Mart’s commonality analysis is easily distinguishable from this case and does not disturb the court’s original order.
c. Injunctive or Declaratory Relief. Finally, Defendants argue that, under Wal-Mart, Plaintiffs have also failed to meet the requirements of Rule 23(b)(2) because no single injunctive or declaratory relief is possible where each class member has different needs for DCF services, placements, and visitation. Defendants rely on Wal-Mart for the proposition that “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted.’” Wal-Mart, 131 S.Ct. at 2557 (internal citation omitted). This proposition, however, is not novel to Wal-Mart and
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does not change the Rule 23(b)(2) analysis this court already performed in its original certification order. Any new rules of law that Wal-Mart may have created for Rule 23(b)(2) class actions were limited to its specific holding regarding the propriety of claims for monetary relief. Id. at 2557. Plaintiffs’ claims in this case are limited to injunctive relief. The passage in Wal-Mart regarding injunctive and declaratory relief that Defendants cite in support of their argument for decertification only affirmed the pre-Wal-Mart class certification standards that this court used to reach its earlier conclusion.
Thus, because the facts and demands for relief in WalMart are readily distinguishable from the case at hand, Defendant’s argument that Wal-Mart calls for reconsideration of the court’s original certification order is unpersuasive. B. Reexamining Original Certification.
As noted in the introduction, while Defendants couch their arguments in terms of the Wal-Mart decision, at times Defendants seem to ask the court to expand its analysis and look once more to the original rationale for class certification. Doing so would be improper for two reasons.
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1. Deadline for Appeal. First, reexamining the merits of the original certification order would undermine the deadline to appeal a class certification order set by the Federal Rules. Rule 23(f) provides that litigants may appeal an order granting or denying class certification by filing a petition within fourteen days of the order’s entry. The court issued its class certification order in this case on February 28, 2011, and Defendants chose not to appeal. Now, nearly seven months after the court entered its order, Defendants seek the substantive equivalent of an appeal -- though under the label of a motion to decertify -- by asking the court to reconsider the original order. Allowing litigants to file a motion to decertify at any time during the litigation, even when no subsequent case law or new facts have had any impact on the original rationale, would render Rule 23(f) meaningless. 2. Substantive Analysis. Second, and more importantly, even if the court undertook the analysis that Defendants request, it remains clear that the original certification was appropriate.
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Defendants contest the court’s findings with respect to the
Rule 23(a) commonality and typicality requirements and the
Rule 23(b)(2) requirement for a single injunctive or
declaratory relief. However, as the court previously
determined, the specific and detailed allegations in the
complaint are sufficient to satisfy these requirements.
The court determined that, although it must conduct a
“rigorous analysis” before certifying a class, it was not
required to go beyond the pleadings in this specific case.
Connor B., 272 F.R.D. at 293-94. The court found that the
complaint
set forth highly detailed allegations . . . that outline pervasive alleged problems in the Massachusetts foster care system –- inadequate training and supervision of foster parents, the failure to properly investigate reports of neglect and abuse, delay in removing children from abusive homes, denial of essential educational and medical services, the shuttling of children among multiple placements, the failure to maintain adequate sibling visitation, and the inability to secure appropriate placements for adoption -- as well as the resultant harms.
Id. at 294-95. Because these alleged failures resulted in
harms to the named Plaintiffs and created an unreasonable
risk of harm to the entire Plaintiff class, both of which
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Plaintiffs have also detailed with specificity in their complaint, Plaintiffs have satisfied the commonality requirement. Id. at 295.
With regard to typicality, the court remains convinced that, although all class members must “suffer the same injury,” Falcon, 457 U.S. at 156, the harms suffered by the named plaintiffs may differ in some respects from those suffered by unnamed plaintiffs. Connor B., 272 F.R.D. at 296; see also Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) (“Where 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.” (quoting Falcon, 457 U.S. at 15759)). As the court found in its original order, Plaintiffs have alleged specific systemic policies or practices that expose the entire class to the same unreasonable risk of harm and, thus, have satisfied the typicality requirement. Connor B., 272 F.R.D. at 297.
Finally, contrary to Defendants’ contention, “Plaintiffs have proposed several forms of injunctive relief
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that would benefit the entire class, including stricter limits on caseworker caseloads and increased visitation by caseworkers of children in foster homes. Such prospective injunctive relief is fully consistent with Rule 23(b)(2) . . . .” Id.
IV. CONCLUSION For the foregoing reasons, Defendants’ Motion to Decertify the Plaintiffs’ Class Pursuant to Fed. R. Civ. P. 23(c), (Dkt. No. 66), is hereby DENIED. Defendants’ Motion to Stay Discovery Pending a Ruling on their Motion to Decertify the Class, (Dkt. No. 67), is also hereby DENIED, as moot. It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
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 Case 1:10-cv-30073-WGY Document 373 Filed 11/22/13 Page 1 of 84

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

CONNOR B., by his next friend,

)

Rochelle Vigurs, ADAM S., by his )

next friend, Denise Sullivan,

)

CAMILA R., by her next friend,

)

Bryan Clauson, ANDRE S., by his )

next friend, Julia Pearson, SETH )

T., by his next friend, Susan

)

Kramer, and RAKEEM D., by his next )

friend, Bryan Clauson,

)

individually and on behalf of all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DEVAL L. PATRICK, Governor of

)

the Commonwealth of Massachusetts, )

JOHN POLANOWICZ, Secretary of the )

Massachusetts Executive Office of )

Health and Human Services, and

)

OLGA I. ROCHE, Acting Commissioner )

of the Massachusetts Department of )

Children and Families, in their )

official capacities, )

)

Defendants.

)

)

CIVIL ACTION NO. 10-30073-WGY

YOUNG, D.J.

FINDINGS AND RULINGS

November 22, 2013

I. INTRODUCTION Anonymized minors acting on behalf of a class of
approximately 8500 children (collectively, the “Plaintiffs”) who, after being removed from their family homes due to abuse or

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neglect, have suffered harm or are exposed to harm1 in the custody of the Massachusetts Department of Children and Families (“DCF” or the “Department”), bring this suit under 42 U.S.C. section 1983 against high-level officials in the Commonwealth’s administrative bureaucracy (collectively, the “Defendants”) for allegedly circumscribing the myriad constitutional and statutory rights of the class members. Specifically, the Plaintiffs contend that the Defendants violated (1) class members’ right to substantive due process; (2) class members’ constitutionally guaranteed liberty, privacy, and associational interests, particularly the right to familial association; (3) certain provisions of the Adoption Assistance and Child Welfare Act of 1980 (“AACWA”), 42 U.S.C. §§ 670-676, specifically those pertaining to foster care maintenance payments and individualized case plans; and (4) class members’ right to procedural due process. The sheer number and breadth of allegations raised by the Plaintiffs in this case effectively amount to an all-out assault on the Massachusetts foster care system, in which the Plaintiffs request all manner of declaratory and injunctive relief. The Defendants, for their part, have moved for judgment on the record.
1 August 15, 2012, was set as the fact cutoff date for liability purposes. Elec. Order, May 17, 2012.
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A. Procedural Posture2 On April 15, 2010, lead plaintiffs Connor B.,3 Adam S., Camila R., Andre S., Seth T., and Rakeem D. (collectively, the “Named Plaintiffs”), by their next friends and on behalf of all others similarly situated, filed a complaint in this district against Massachusetts Governor Deval Patrick and the heads of the Massachusetts Executive Office of Health & Human Services and DCF. Compl., ECF No. 1. That same day, the Plaintiffs filed a motion to certify a class and appoint class counsel. Pls.’ Mot. Class Certification & Appointment Class Counsel, ECF No. 2. The Defendants moved to dismiss the complaint on August 20, 2010, Mot. Hon. Deval L. Patrick Dismiss Compl. Against Him Pursuant Fed. R. Civ. P. 12(b)(1) & 12(b)(6), ECF No. 17; Defs.’ Mot. Dismiss Compl. Pursuant Fed. R. Civ. P. 12(b)(1) & 12(b)(6), ECF No. 18, and subsequently filed an opposition to the Plaintiffs’ motion for class certification, Defs.’ Opp’n Pls.’ Mot. Class Certification, ECF No. 32.
2 Children’s Rights, one of the Plaintiffs’ counsel in this matter, have secured settlements with over a dozen other states in similar foster care management disputes. See Susan Ferriss, Class-Action Suit Challenges Massachusetts Foster Care System, Center for Pub. Integrity (Jan. 23, 2013, 6:00 AM), http://www. publicintegrity.org/2013/01/23/12062/class-action-suitchallenges-massachusetts-foster-care-system. Massachusetts is the first to take up the gauntlet and accept the Plaintiffs’ challenge in court. Id.
3 Pursuant to Local Rule 5.3(a), pseudonyms have been used to protect the identities of the children who are parties to this class action.
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Following additional filings by both parties, Judge Michael Ponsor issued a memorandum and order on January 4, 2011, denying the Defendants’ motions to dismiss and leaving for later resolution the Plaintiffs’ motion for class certification. Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142 (D. Mass. 2011) (Ponsor, J.). Nearly two months later, Judge Ponsor revisited the remaining motion, granting the Plaintiffs class certification and referring the case to Magistrate Judge Kenneth Neiman for further adjudication.4 Mem. & Order Regarding Pls.’ Mot. Certify Class & Appoint Class Counsel, ECF No. 49; Elec. Order, Feb. 28, 2011. The case was eventually reassigned to this Court on November 19, 2012. Elec. Notice, Nov. 19, 2012, ECF No. 203.
On December 3, 2012, the Defendants moved for partial summary judgment on the Plaintiffs’ substantive due process count and for full summary judgment on all of the remaining counts in the Plaintiffs’ complaint. Defs.’ Mot. Partial Summ. J., ECF No. 209. At a motion hearing held on January 10, 2013, the Court denied the Defendants’ motion as matter of judicial economy. Elec. Clerk’s Notes, Jan. 10, 2013, ECF No. 272. The case proceeded to trial on January 22, 2013. Elec. Clerk’s Notes, Jan. 22, 2013, ECF No. 291.
4 The Defendants’ attempt to decertify the newly constituted class proved equally futile. See Connor B. ex rel. Vigurs v. Patrick, 278 F.R.D. 30 (D. Mass. 2011) (Ponsor, J.).
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On April 30, 2013, following the close of the Plaintiffs’ case-in-chief, the Defendants filed a motion for judgment on the record and appended to their motion a memorandum of law in support. Defs.’ Mot. J. R., ECF No. 316; Mem. Law Supp. Defs.’ Mot. J. R. (“Defs.’ Mem.”), ECF No. 317. The Plaintiffs submitted a brief in opposition to the Defendants’ motion on May 16, 2013. Pls.’ Mem. Law Opp’n Defs.’ Mot. J. R. (“Pls.’ Opp’n”), ECF No. 356. The motion was heard on May 21, 2013, but the Court declined to rule on it at the hearing, deciding instead to take the matter under advisement and adjourn the case without day. Mot. Hr’g Tr. 37:17-18, May 21, 2013, ECF No. 364.
B. Child Welfare Regulatory Framework Under Title IV-E of the Social Security Act,5 42 U.S.C. §§ 670-676, the Children’s Bureau of the Administration for Children and Families (“ACF”), which sits within the U.S. Department of Health & Human Services (“HHS”), allots federal funds to states to assist in their provision of foster care services. See Title IV-E Foster Care, Children’s Bureau (May 17, 2012), http://www.acf.hhs.gov/programs/cb/resource/titleive-foster-care. In order to qualify for Title VI-E funds, state foster care agencies must meet a long list of federal requirements. See 42 U.S.C. § 671(a).
5 Title IV-E is also known as the Adoption Assistance and Child Welfare Act of 1980. Henry A. v. Willden, 678 F.3d 991, 1007 n.9 (9th Cir. 2012).
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The receipt of said funds is additionally conditioned upon
participation in and the successful completion of Child and
Family Services Reviews (“CFSRs”). Trial Ex. 808, Children’s
Bureau Child & Family Servs. Reviews Fact Sheet (“CFSR
Overview”) 1. HHS has established seven outcome measures spread
across three categories to grade a state agency’s performance:
(1) A title IV–E agency’s substantial conformity will be determined by its ability to substantially achieve the following child and family service outcomes:
(i) In the area of child safety:
(A) Children are, first and foremost, protected from abuse and neglect; and, (B) Children are safely maintained in their own homes whenever possible and appropriate;
(ii) In the area of permanency for children:
(A) Children have permanency and stability in their living situations; and (B) The continuity of family relationships and connections is preserved for children; and
(iii) In the area of child and family well-being:
(A) Families have enhanced capacity to provide for their children’s needs; (B) Children receive appropriate services to meet their educational needs; and (C) Children receive adequate services to meet their physical and mental health needs.
45 C.F.R. § 1355.34(b)(1). In addition to these seven outcome
measures, HHS has adopted six statewide data indicators to
assist in determinations of whether a state is in substantial
conformity with Title IV-E: (1) the recurrence of maltreatment;
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(2) the incidence of child abuse and/or neglect in foster care;6 (3) the number of re-entries into the foster care system; (4) the length of time to achieve reunification; (5) the length of time to achieve adoption; and (6) the stability of foster care placement.7 See Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020, 4024 (Jan. 25, 2000) (codified at 45 C.F.R. pts. 1355-1357); see also Admin. Children & Families, U.S. Dep’t Health & Human Servs., Background Paper: Child and Family Services Reviews National Standards 1 (2012), available at http://www.acf.hhs. gov/sites/default/files/cb/cfsr_background_paper.pdf.
States that fail to meet the requirements of a CFSR must draft and implement a Program Improvement Plan (“PIP”) that establishes performance improvement goals in the areas in which the states are not in substantial conformity with federal standards. See CFSR Overview 2. There is great incentive to
6 This indicator has since changed to refer to the absence of maltreatment of children in foster care. See infra Part II.A.
7 The first two statewide indicators pertain to the first safety outcome –- namely, that “[c]hildren are, first and foremost, protected from abuse and neglect,” 45 C.F.R. § 1355.34(b)(1)(i)(A) -- whereas the last four statewide data indicators pertain to the first permanency outcome -- namely, that “[c]hildren have permanency and stability in their living situations,” 45 C.F.R. § 1355.34(b)(1)(ii)(A). See Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020, 4024 (Jan. 25, 2000) (codified at 45 C.F.R. pts. 1355-1357).
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keep pace with the goals set forth in the PIPs, as states that fail to do so are assessed penalties as punishment for their noncompliance. See id.
C. Child Welfare Standards National child welfare standards established by the Council on Accreditation (“COA”) and the Child Welfare League of America (“CWLA”) provide the normative backdrop against which DCF’s challenged practices and policies must be cast.8 COA is an accrediting organization that performs research on best practices in child welfare and sets professional standards for child welfare agencies. See Trial Tr. vol. 11, 33:5-9, 33:23-34:1, Feb. 28, 2013, ECF No. 335. COA standards are derived both from the opinions of independent panels (comprised of experts drawn from across the social services spectrum) and from the relevant academic literature. Rule 30(b)(6) Dep. Council Accreditation, Richard Klarberg 37:19-20, 41:20-42:4, Aug. 9, 2012, ECF No. 226-1. Standards that have been transcribed in draft form are then disseminated for comment to individuals who have expertise in the applicable field. Id.
8 Admittedly, neither COA nor CWLA standards impose upon child welfare agencies obligations that have the force of law. See Trial Tr. vol. 19, 73:20-75:18, 87:12-25, May 7, 2013, ECF No. 347 (noting that COA and CWLA standards are intended to be viewed aspirationally). Nevertheless, given the standards’ widespread usage, this Court elevates them as reflective of the bar to which child welfare agencies are generally expected to measure up.
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at 41:14-19, 46:17-22. The comments received are customarily incorporated into existing standard statements and reviewed again by the independent panelists, id. at 47:7-12, making the process of COA standard-setting rather iterative and dynamic.
CWLA is a public, non-profit agency that, like COA, conducts best-practices research and sets industry standards for child welfare services. Trial Tr. vol. 11, 33:15-21. CWLA standards are set by a process similar to the one used for the development of COA standards. Rule 30(b)(6) Dep. Child Welfare League Am., Linda Spears 77:12-78-24, Aug. 14, 2012, ECF No. 226-1.
D. Expert Witness Testimony Over the course of the bench trial, seven expert witnesses (all for the plaintiff) were called to the stand to testify. The Court takes the time here to provide a brief biography of the witnesses and explain their particular relevance or contribution to the matter under review.
1. Named Plaintiff Case File Review Dr. Lenette Azzi-Lessing (“Dr. Azzi-Lessing”) is a tenured associate professor of social work at Wheelock College, located in Boston, Massachusetts. Trial Tr. vol. 3, 103:3-18, Jan. 25, 2013, ECF No. 327. Dr. Azzi-Lessing conducted a review of five of the Named Plaintiffs’ DCF case files, which date from the children’s entry into the foster care system through early 2012.
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Trial Tr. vol. 6, 76:5-7, 79:3-10, Feb. 4, 2013, ECF No. 330. The aim of Dr. Azzi-Lessing’s case file review was to assess DCF’s effectiveness in providing the five Named Plaintiffs with “safety, permanency and well-being.” Id. at 71:14. In reaching her conclusions, Dr. Azzi-Lessing drew upon COA and CWLA standards, academic literature, federal welfare regulations, internal DCF policies, and her own teaching experiences. See id. at 71:9-14, 73:14-74:2.
2. Children’s Research Center Case File Study The Children’s Research Center (“CRC”), a division within the National Council on Crime & Delinquency, was retained by the Plaintiffs to perform a study of DCF case files to determine whether and the extent to which DCF met prevailing standards of case practice in foster care. See Trial Tr. vol. 4, 4:8-16, 20:15-20, Jan. 30, 2013, ECF No. 328. Dr. Raelene Freitag (“Dr. Freitag”), the director of CRC, managed the study and was a coauthor of the report that contained CRC’s findings. Id. at 4:12-13, 30:7-15. Dr. Kristen Johnson (“Dr. Johnson”), a senior researcher at NCCD, assisted Dr. Freitag at all stages of the study, performing study and research design, establishing data collection protocols, training case readers, conducting data cleaning and analysis, and co-authoring the CRC report. See id. at 22:25-23:2; Trial Tr. vol. 5, 67:22-68:3, 78:1-15, Jan. 31, 2013, ECF No. 329. Dr. Erik Nordheim (“Dr. Nordheim”), a
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statistics professor at the University of Wisconsin-Madison in Madison, Wisconsin, served as Dr. Johnson’s consultant and advised CRC on its study’s sample design. See Trial Tr. vol. 4, 31:14-32:2; Trial Tr. vol. 6, 33:19-21, 36:5-14.
CRC conducted a longitudinal study that involved an examination of a random and representative sample of 484 DCF case files, equally divided into two cohorts of foster children who were followed for a period of thirty months.9 See Trial Ex. 1066, Compliance Foster Care Case Practice Standards Mass. Dep’t Children & Families: Longitudinal Study Two Cohorts (“CRC Study”); Trial Ex. 1065, Compliance Foster Care Case Practice Standards Mass. Dep’t Children & Families: Longitudinal Study Two Cohorts app.C (“CRC Study Appendix C”); see also Trial Tr. vol. 4, 24:24-25:2, 27:2-4, 31:6-13, 32:12-22; Trial Tr. vol. 5, 84:6-9. The first cohort, labeled the “entry cohort,” was comprised of children who had entered the Massachusetts foster care system during the twelve-month window between July 1, 2009, and June 30, 2010. See Trial Tr. vol. 4, 25:6-9. This particular group of foster children was selected for the purpose of assessing current DCF practice for children just entering foster care. Id. at 25:9-13. The second cohort, labeled the “two-year cohort,” gave CRC a picture of long-term DCF practice,
9 None of the Named Plaintiffs’ case files were among those sampled in the CRC study. Trial Tr. vol. 4, 28:8-10.
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as the cohort consisted of children who had been in foster care for two or more years as of July 1, 2009. See id. at 25:14-20, 55:11-12. The CRC study covered a wide range of “key points” in foster care practice, touching upon reunification, permanency, placement stability, maltreatment in care, and family visitation, among other subjects. Trial Tr. vol. 5, 77:13-22.
3. Psychotropic Medication Review Dr. Christopher Bellonci (“Dr. Bellonci”) is a boardcertified adult and child psychiatrist who presently works as an assistant professor at Tufts University School of Medicine and as an attending psychiatrist at Tufts Medical Center, both of which are located in Boston, Massachusetts. See Trial Tr. vol. 1, 111:24-112:3, 119:24-120:3, Jan. 22, 2013, ECF No. 325. The Plaintiffs retained Dr. Bellonci in March 2012 to review three of the Named Plaintiffs’ case files and produce a report speaking to the degree to which DCF met the standards governing child welfare practices concerning the administration of psychotropic medication and mental health services. Trial Tr. vol. 2, 36:2-6, 36:21-37:10, 114:13-19, Jan. 24, 2013, ECF No. 326. He paid particular attention to whether DCF obtained informed consent from the relevant parties to whom they were responsible, provided adequate oversight of the psychotropic drug administration process, and had in place an adequate monitoring system. See id. at 116:21-117:2. To support his
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findings, Dr. Bellonci relied upon his personal experience working with the foster care population and knowledge of other states’ foster care systems, academic literature, federal guidelines, and standards set forth by the American Academy of Child and Adolescent Psychiatry (“AACAP”). See id. at 38:3-10, 43:11-16, 43:25-44:10, 77:4-13.
4. Management Reviews Catherine Crabtree (“Crabtree”) is a senior project leader at the Center for Government and Public Affairs at Auburn University at Montgomery in Montgomery, Alabama, where she consults with public agencies and non-profit institutions on questions concerning organizational reform and performance management. Trial Tr. vol. 11, 7:19-22, 8:5-12. Crabtree also has an extensive background in child welfare, mental health, and other social services work in Tennessee and Alabama. See id. at 10:6-13:1, 14:25-16:7, 16:19-18:15. In the spring of 2012, the Plaintiffs contacted Crabtree to do a management review of the Massachusetts foster care system. See id. at 24:3-14. The management review focused on “four critical building blocks” of child welfare agency practice, id. at 29:18-19: (1) the number of skilled and trained DCF personnel; (2) the balance of foster care placements and services; (3) the presence of quality assurance systems; and (4) the existence of accountable and stable leadership. See id. at 29:15-31:2. In the course of her
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review, Crabtree turned to a variety of sources, including state and federal regulations, national professional standards, DCF’s internal policies and communications, and deposition testimony. See id. at 25:14-26:3.
Arburta Jones (“Jones”) boasts a long work history in various positions in the child and social welfare systems in New Jersey. See Trial Tr. vol. 8, 115:6-135:1, Feb. 6, 2013, ECF No. 332. The Plaintiffs retained Jones in May 2012 to study issues related to the safety of children in DCF custody who are situated in out-of-home placements. Id. at 135:4-14. Jones’s review focused on the quality of four “hinge pins” of child welfare, id. at 141:16: (1) family visitation; (2) foster home licensing; (3) foster care investigations; and (4) internal and external accountability systems. Id. at 141:13-142:1. Jones’s analysis depended largely upon the depositions of DCF staff and executives; DCF’s internal data, reports, and communications; CWLA and COA standards; data produced by the Massachusetts Office of the Child Advocate (the “OCA”); and state and federal regulations. Id. at 135:24-136:11, 138:11-20.
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II. FINDINGS OF FACT10
The amount of material that this Court has been called upon
to review to inform its findings is, quite frankly, voluminous:
over the course of the last nine months, the Court has
scrutinized numerous depositions and party filings, heard
twenty-four days of trial testimony,11 read nearly 3000 pages of
trial transcript, and studied just under 1200 trial exhibits
(which themselves collectively comprised tens of thousands of
10 A motion for judgment on the record, like a motion for judgment on partial pleadings made under Federal Rule of Civil Procedure 52(c) (“Rule 52(c)”), grants a district court occasion to enter judgment for a party prior to the conclusion of a jurywaived trial “[i]f a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue.” Fed. R. Civ. P. 52(c). Rule 52(c), however, states that “[a] judgment on partial findings must be supported by findings of fact and conclusions of law.” Id. (emphasis added). The Court bristles at this requirement, as it effectively gives short shrift to the party that has yet to put on all of its evidence. (Indeed, the Defendants were able to present only two of the fifteen witnesses that they expected to call, so the trial record is likely incomplete. See Joint Pretrial Mem., App. B, Defs.’ Witness List 2, ECF No. 277-2.) Nevertheless, this Court is hamstrung by its obligation to obey Rule 52(c)’s commandment. It must be understood, then, that these findings may overstate matters in the Plaintiffs’ favor even though ultimately they have fallen short.
11 Fifty days -- twenty for the Plaintiffs’ case-in-chief and up to thirty for the Defendants’ -- had originally been allotted for this trial. Elec. Clerk’s Notes, Jan. 16, 2013, ECF No. 278. The Defendants’ motion for judgment on the record, however, gave the Court appropriate reason to suspend the proceedings. Defs.’ Mot. Directed Verdict, ECF No. 316.
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pages of documents).12 Obviously, it would be near impossible to take into consideration every last shred of evidence on every topic broached in this case. Naturally, then, the Court necessarily is selective in its reproduction of the record, condensing the most salient kernels of information and deemphasizing (or altogether omitting) those facts that are not as germane to this Court’s conclusions.
A. Maltreatment in Foster Care HHS has conducted two rounds of CFSRs, the first spanning the years from 2000 to 2004 and the second spanning the years from 2007 to 2010. See Nat’l Conference of State Legislatures, State Progress Toward Child Welfare Improvement 2 (2010), available at http://www.ncsl.org/documents/cyf/progress_cw_ improvement.pdf. For the first-round CFSRs, HHS set the national standard for the acceptable incidence of child abuse or neglect in foster care at 0.57%, meaning that a 0.57% rate of substantiated maltreatment would constitute the seventy-fifth percentile of all states’ performance on this statewide data indicator.13 See Trial Ex. 488, Background Paper: Child & Family
12 The Plaintiffs’ proposed findings of facts alone, submitted in conjunction with their opposition to the Defendants’ motion, measures a prolix 396 pages in length. See Pls.’ Mem. Law. Opp’n Defs.’ Mot. J. Record, Ex. A, Pls.’ Proposed Findings Fact, ECF No. 356-1.
13 The CFSR implementing regulations set the 75th percentile of the states’ performance as “[t]he national standard for each
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Servs. Reviews Nat’l Standards 2-3. The first-round CFSR for
Massachusetts, completed in 2001, found a 0.85% incidence of
child abuse or neglect in 1997 and a 0.94% incidence of child
abuse or neglect in 1999, rates that were 0.28 and 0.37 percentage points above the national standard, respectively.14
Trial Ex. 55, Mass. Statewide Assessment: Mass. Child & Family
Servs. Review (“First-Round CFSR Statewide Assessment”) CSF-
000000425. For the second-round CFSRs, HHS reframed this
statewide data indicator as the absence of maltreatment of
children in foster care by foster parents or facility staff and pegged the national standard for this new metric at 99.68%15
(effectively tightening the old standard from 0.57% to 0.32%).
See The Data Measures, Data Composites, and National Standards
to be Used in the Child and Family Services Reviews, Notice, 71
statewide data indicator.” Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020, 4024 (Jan. 25, 2000) (codified at 45 C.F.R. pts. 1355-1357).
14 Data for 1998 is unavailable because, during that year, the Department was in the process of converting its management information system. See Trial Ex. 56, Child & Family Servs. Review: Final Assessment CSF-000000319.
15 The second-round CFSR national standard was originally set at 99.67%. The Data Measures, Data Composites, and National Standards to be Used in the Child and Family Services Reviews, Notice, 71 Fed. Reg. 32,969, 32,980 tbl.1 (June 7, 2006). The standard was raised to its present level after HHS undertook a revision of CFSR standards to bring these measures in line with new data. The Data Measures, Data Composites, and National Standards to be Used in the Child and Family Services Reviews; Corrections, Notice, 72 Fed. Reg. 2881, 2881 (Jan. 23, 2007).
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Fed. Reg. 32,969, 32,973 (June 7, 2006); The Data Measures, Data Composites, and National Standards to be Used in the Child and Family Services Reviews; Corrections, Notice, 72 Fed. Reg. 2881, 2886 tbl.A (Jan. 23, 2007). In other words, if 99.68% or more of foster children statewide were not victims of a substantiated or indicated maltreatment, that state would be deemed to have met the national standard. The second-round CFSR for Massachusetts, completed in 2007 and relying in part upon state child welfare data from 2004, 2005, and the first three months of 2006, found a 98.72% absence of child abuse or neglect in the Commonwealth during the time period, 0.37 percentage points below the national standard and marking a decline in performance from the first-round CFSR. See Trial Ex. 58, Final Report: Mass. Child & Family Servs. Review (“Second-Round CFSR Final Report”) CSF-000000747, CSF-000000750.
Due to its poor performance in the second-round CFSR, Massachusetts submitted a PIP for approval by HHS. See generally Trial Ex. 33, Mass. Child & Family Servs. Review Program Improvement Plan. The Department agreed to achieve an improvement goal of 99.03%, see id. at 54, but later negotiated a lower improvement goal of 98.8%, Trial Ex. 587, DCF PIP Quarterly Report: Quarter One DCF000063281. DCF met the latter negotiated improvement goal. Trial Ex. 588, DCF PIP Quarterly Report: Quarter Two DCF000554885.
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A third-round CFSR, though widely expected, has not yet taken place. See Children’s Bureau, U.S. Dep’t of Health and Human Servs., Child and Family Services Review: Technical Bulletin #6 (Feb. 4, 2013), available at http://www.acf.hhs.gov/ sites/default/files/cb/cfsr_tb6.pdf. That said, HHS’s annual publication reporting child maltreatment data serves to fill the gaps for more recent years. This publication provides state-bystate data with respect to the absence of maltreatment in foster care for a given federal fiscal year. See, e.g., Trial Ex. 1088, Child Maltreatment 2010; Trial Ex. 1161, Child Maltreatment 2011. From 2006 to 2011, Massachusetts reported absence of maltreatment rates of 99.05%, 99.14%, 98.93%, 99.16%, 99.22%, and 99.30%, respectively. See Child Maltreatment 2010, at 57 tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15. These results, when compared to those of other states, placed the Commonwealth fourth worst out of forty-six reporting states in 2006, the seventh worst out of forty-six reporting states in 2007, the fourth worst out of forty-eight states in 2008, the seventh worst out of forty-nine states in 2009, the eighth worst out of forty-seven states in 2010, and the seventh worst out of forty-nine states in 2011.16 See Child Maltreatment 2010, at 57 tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15.
16 DCF’s own internal data shows that the agency’s performance in the area of child maltreatment has slipped since
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The CRC longitudinal study also documented rates of alleged abuse or neglect committed against children in the study’s entry and two-year cohorts. Among 242 children in the entry cohort, forty-four allegations of abuse or neglect during the DCF observation period were reported. See CRC Study tbl.18. Twelve of these allegations were substantiated, causing children to be removed from their environments in eleven cases.17 Id. This means that roughly 5% of the children in the entry cohort sample population were victims of substantiated abuse or neglect, and that approximately 91.6% of these children were removed from their environments.
The CRC study reported comparable incidence rates for the two-year cohort. Among 242 children in the two-year cohort, fifty-six allegations of abuse or neglect during the DCF observation period were reported. Id. tbl.45. Ten allegations were substantiated, and children were removed from their
2011. See Trial Ex. 964, Child & Family Servs. Review Measures DCF011097888, DCF011421629 (reporting a 99.2% statewide rate of absence of maltreatment in foster care for the twelve-month periods ending March 31, 2012, and June 30, 2012).
17 Two of these twelve substantiated allegations fall into a subcategory of allegations made specifically against an individual in the foster home. See CRC Study tbl.18. But the data shows that five children in this subcategory were removed from their environments. See id. The Court admits its uncertainty as to why more children were removed from their placements than made substantiated allegations in this subcategory, but has no cause to inquire further into this matter.
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environment in eight of these cases.18 Id. This means that roughly 4.1% of the children in the two-year cohort sample population were victims of substantiated abuse or neglect during the observation period, and that approximately 80% of these children were removed from their environments.
Statistics on the two-year cohort prior to the observation period are striking. Of 240 children in the two-year cohort, forty-three children were victims of substantiated maltreatment prior to July 2009. See CRC Study Appendix C tbl.C59. This means that at the start of the observation period, 17.9% of children in the two-year cohort had already experienced substantiated maltreatment while in DCF custody. In roughly 37.2% of these cases, the children had been substantiated victims between two and nine times. See id.
The five Named Plaintiff case files reviewed by Dr. AzziLessing documented egregious instances of maltreatment. For example, at the age of six, Connor B. was placed in a foster home for four to six weeks with a teenager known to be at risk for sexually abusing younger children. See Trial Tr. vol. 6, 83:12-22, 84:10-23. He reportedly raped Connor B. repeatedly during the course of his stay. See id. at 85:15-23. The
18 Once again, the Court expresses confusion regarding the reported statistics, this time because the number of sample children removed from their parental homes is greater than the number of substantiated incidents of abuse or neglect in those settings. See CRC Study tbl. 45.
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teenager was subsequently removed from the foster home, and DCF revoked the foster home’s license to host foster children. Id. at 115:24-116:13. In the case of Adam S., DCF initially screened out complaints of abuse or neglect that allegedly took place in Adam S.’s adoptive home, which included instances of corporal punishment and force-feeding. Id. at 117:9-19. Eventually, a DCF investigator initiated a review of the foster home, which resulted in the removal of certain foster children from the home. Id. at 118:18-22. But because the investigator did not provide the remaining children with protective services, Adam S. and his sisters suffered brutal beatings by their adoptive parents until they were ultimately removed from the adoptive home as well. See id. at 118:18-120:6. Andre S. and his sister, both under the age of four, resided in an overcrowded foster home with seven other children for over two years. See Trial Tr. vol. 7, 28:1-4, 28:13-21, Feb. 5, 2013, ECF No. 331. At a later preadoptive foster placement at their cousin’s home, Andre S. and his sister were reportedly prompted to engage in sexual acts with one another and to watch the cousin and her boyfriend have sex and take drugs together. See id. at 35:14-19, 38:14-22. Andre S.’s sister also reported being raped by the cousin’s boyfriend on numerous occasions. Id. at 38:23-39:1. The children were eventually removed, and
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DCF later investigated and substantiated the majority of the reported events. See id. at 39:2-9.
Sworn trial testimony provided by Lauren James (“James”), a former ward of DCF custody, also speaks to maltreatment in care. See Trial Tr. vol. 1, 28:24-25, 29:25:30-2. James attested to a wide range of negative experiences in foster care, including, among other things, sharing beds with other foster children, id. at 32:24-33:1, performing excessive amounts of housework, id. at 35:11-36:12, having inadequate food, id. at 36:13-37:15, having strained contact with family members, id. at 39:17-24, and taking prescribed psychotropic medications beginning at age six or seven, id. at 62:8-24.
B. Family Visits and Placements The maintenance of family relationships is an issue of key concern for foster care agencies. According to DCF policy, foster children must be given the opportunity to receive their parents and siblings on visits at least once per month. Trial Ex. 1, DCF Case Practice Policy & Procedures Manual DCF POL (7/08) 140. Children taken into foster care custody are also expected to be relocated to a foster home or other placement with or in close proximity to their siblings and other family members, unless the placement would endanger a child’s safety. See 42 U.S.C. § 671(a)(31)(A); Mass. Gen. Laws ch. 119, § 23(c); 110 Mass. Code Regs. 7.101(1)(b), (e). By natural extension,
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then, Massachusetts regulations express an unambiguous preference for placements with relatives, known as “kinship placements,” and placements of children into homes in which there are no other foster children, known as “child-specific placements,” over other potential arrangements. See 110 Mass. Code Regs. 7.101(2)(a)-(b) (listing “placement with a kinship family” and “placement with a child-specific family” atop the hierarchy of possible placement resources). DCF must screen kinship placements and child-specific placements before a foster child is relocated, however, and the Department is statutorily obliged to reassess these placements on an annual basis. 110 Mass. Code Regs. 7.108(1)-(2), 7.113(1).
In its first-round CFSR, Massachusetts’s performance in achieving continuity in family and area relationships was found to be in substantial conformity with federal law. Trial Ex. 56, Child & Family Servs. Review: Final Assessment (“First-Round CFSR Final Assessment”) CSF-000000331; see also id. at CSF000000331-34 (dubbing as “strengths” Massachusetts’s efforts to ensure that children in out-of-home placements remained in close proximity to their former communities, maintained relationships with their families, and were placed in safe homes with relatives). The Commonwealth did not achieve these results in the second round, however. See Second-Round CFSR Final Report CSF-000000780-91 (labeling Massachusetts’s performance with
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respect to placements with siblings, kinship placements, and preserving family connections as areas needing improvement). If one were to extrapolate from the results of the CRC study, it would appear that child-family visits are a relatively rare occurrence: only 20.9% and 37.6% of children in the entry cohort received consistent monthly visits from siblings and parents, respectively, for the entirety of the thirty-month review period.19 CRC Study tbl.16.
Nor does Massachusetts boast a sterling record with respect to the suitability of placements. Roughly 31.9% of children in DCF custody have been placed outside of their local home area, and some 18.6% of children were placed altogether outside their region of origin,20 see Trial Ex. 418, Proximity Placement Tables 12, which makes visits with family members and caseworkers, commuting to and from school, and attending doctor’s appointments more difficult, see Trial Tr. vol. 11, 118:2-20. The CRC study found that with respect to sibling placement, 69% of children in the entry cohort with siblings also in foster care were placed with at least one sibling for at least part of
19 In fact, only 40.2% of children in the entry cohort were visited by any kin whatsoever in the thirty-month window. CRC Study tbl.16. This memorandum omits reference to parallel data for the two-year cohort, as certain omissions made the information unhelpful for analytical purposes. See id. tbl.43b.
20 These figures are accurate as of March 31, 2012, the latest date for which data has been provided. See Trial Ex. 418, Proximity Placement Tables 12.
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their time in care, and 49.5% of children in the entry cohort were placed with all of their siblings for at least part of their time in foster care. See CRC Study tbl.8. The rate of sibling placement for children in the two-year cohort was markedly worse: only 43.9% of children were placed with at least one sibling, and a mere 18.7% of children were placed with all of their siblings. See id. tbl.37. Reasons for the lapses in sibling placements were documented in only 53.8% of cases in the entry cohort and 38.4% of cases in the two-year cohort. CRC Study Appendix C tbl.C28. In addition, children are sometimes removed to kinship and child-specific placements that have not yet received formal authority to operate. See Trial Ex. 512, Unapproved Homes Active Placements (reporting the list of unapproved kinship and child-specific homes in the Boston, Northern, and Southern regions with active placements).
C. Placement Stability Placement stability is another goal that often proves elusive in Massachusetts. DCF regularly makes use of a variety of short-term placements. See, e.g., Dep. Joy E. Cochran (“Cochran Dep.”) 159:22-160:23, Apr. 13, 2012 (describing DCF’s use of night-to-night placements, where foster children are placed for periods of about a week or less and then moved to other locations); Dep. Raymond W. Pillidge (“Pillidge Dep.”) 184:17-185:15, Mar. 7, 2012 (describing DCF’s use of hotline
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homes, where foster children may be placed for a few days or a weekend in the event that there is a lack of available foster homes). These short-term placements disrupt the lives of children in care and are often used for purposes other than those for which they were designed. See, e.g., Pls.’ Designations Fact Dep. Mary Gambon (“Gambon May Dep.”) 165:24167:17, May 14, 2012, ECF No. 226-1 (confirming former DCF Commissioner Angelo McClain’s21 (“McClain”) belief that hotline homes and night-to-night placements are “not good for kids,” id. at 166:6-7, and agreeing that multiple placements are harmful to foster children, id. at 167:13-15); Pillidge Dep. 184:17-185:1 (agreeing that hotline homes are to be used only for emergency placements after the close of regular business hours); see also 110 Mass. Code Regs. 7.101(2)(e) (positioning “placement in a shelter/short term program or group home” on a lower rung of a prioritized list of placement options).
Additional problems are posed by DCF’s reliance on Stabilization, Assessment and Rapid Reintegration (“STARR”) facilities and Intensive Foster Care (“IFC”) placements. STARR facilities are intended to be used as “up-to-45-day placement[s] for children or youth who may be coming into the department’s care or custody . . . [and who may warrant] a period of more
21 Commissioner McClain succeeded Commissioner Harry Spence, presently the Administrator of the Massachusetts Trial Court.
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intensive assessment and stabilization before determining the next appropriate level of care.” Pls.’ Designations Rule 30(b)(6) Dep. Robert E. Wentworth, Jr. Re: Purchased Servs. Licensing, Delivery, & Oversight 13:2-8, Dec. 29, 2011, ECF No. 226-1. Likewise, IFC programs “provide therapeutic services and supports in a family-based placement setting to children and youth [who] . . . are transitioning from a residential/group home level of care . . . or discharging from a hospital setting.” Trial Ex. 385, Intensive Foster Care Scope Serv. DCF000465967. Due to a lack of available foster homes, however, foster children are frequently moved into STARR facilities and IFC placements even when they do not meet the eligibility criteria for entering such placements. See Trial Ex. 407, Email Frances Carbone to Perry Trilling & Amy Kershaw DCF003355182 (conveying a DCF’s employee stated reasons for using STARR facilities, including “provid[ing] quick family treatment sometimes to diffuse the situation so that the child can return home”); Gambon May Dep. 213:9-17 (describing DCF’s practice of “hoteling,” which refers to the assignment of a foster child to an IFC placement even if the child does not exhibit the requisite behavior or medical conditions that would qualify her for the placement). In certain instances, children remain in these facilities for longer than is recommended. See, e.g., Trial Ex. 673, N. Regional Office - Apr. 2011, at 1 (revealing
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that twenty-one children in DCF’s Northern Region remained in a STARR facility for longer than the prescribed forty-five-day period).
These persistent placement problems can primarily be traced to a single root cause: there is a severe shortage in the number of foster homes in Massachusetts. DCF’s general goal is to maintain a pool of around 4000 unrestricted homes for foster care placements, see Pls.’ Designations Rule 30(b)(6) Dep. Mary Gambon Re: Recruitment & Retention Foster Homes (“Gambon Oct. Dep.”) 94:12-95:12, Oct. 18, 2011, ECF No. 226-1, but the Department has fallen short of that target since the late 1990s, Trial Ex. 955, DCF Quarterly Reports, 2008-2012, Tab Q3 2012, at 62 fig.28. Staffing shortfalls contribute substantially to the drag in foster home recruitment. See, e.g., Gambon Oct. Dep. 50:9-51:7 (explaining that four additional statewide recruiters would be necessary in order to fulfill DCF’s recruitment objectives); cf., e.g., id. at 17:14-18 (certifying that DCF’s central office in Boston has only four employees dedicated, and only in part, to the recruitment of foster homes).
What’s more, neither bolstering the administrative ranks nor obtaining the requisite number of foster homes will resolve the ongoing placement challenges related to ensuring a child’s unique fit with a prospective placement, a consideration which rightly figures prominently in placement decisions. See Gambon
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Oct. Dep. 96:20-97:14 (“At any point in time, when you look at the number of homes that [DCF] ha[s] . . . you’ll have sometimes upwards of 1,000, 1,500 homes without placements. . . . [I]t’s all about matching the right home. . . . [W]e’re looking at are we able to bring in homes that can take sibling groups, are we able to bring in homes that can take certain types of behavior? Are we able to bring in homes that can work more closely with families? Are we able to bring in homes that can commit to a family over time as opposed to taking a child for three to five days until we can find another home? So a lot of it is not just based on numbers but also the type of homes you look at.”); cf. Trial Ex. 671, Findings Initial Child & Family Service Reviews: 2001-2004, at 22 (including “[m]ismatching placements to children’s needs” among common concerns regarding placement stability).
D. Permanency Because substitute care is a less-than-optimal outcome for children, achieving permanency for children in foster care is among DCF’s highest-priority objectives. See 110 Mass. Code Regs. 1.02(3)-(4). To this end, DCF is called upon to “direct [its] efforts toward reunification of child(ren) and parent(s),” and “[a]s soon as it is determined that reunification is not feasible, the Department [is instructed to] take swift action to implement another permanent plan, such as adoption or
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guardianship.” 110 Mass. Code Regs. 1.02(4). Massachusetts regulations mandate that DCF provide to every family receiving foster care services a service plan that lays out the conditions necessary to achieve one of three goals, the two most relevant being (1) the reunification of a foster child with her family, or (2) the provision of an alternative permanent home for a foster child. 110 Mass. Code Regs. 6.01(1)(b)-(c), 6.02.
One of the principal ways to gauge success in this area is to appraise the rate at which foster children who have exited the foster care system reenter it. See Trial Tr. vol. 19, 16:417:1, May 7, 2013, ECF No. 347. In the first-round CFSR, Massachusetts’s rate of reentry was 22.3%, more than two-and-ahalf times greater than the national standard of 8.6% during the 2000-2001 review period. First-Round CFSR Final Assessment CSF000000306. By the second-round CFSR, only 15.7% of children leaving the Massachusetts foster care system reentered it, a figure still above the national median performance of 15% during the 2006-2007 review period. Second-Round CFSR Final Report CSF-000000765. In federal fiscal year 2010, 15.3% of Massachusetts foster children who were discharged on the basis of reunification reentered foster care within twelve months from the date of discharge, Children’s Bureau, U.S. Dep’t of Health & Human Servs., Child Welfare Outcomes 2008-2011: Report to Congress 178 (2012), available at
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http://www.acf.hhs.gov/sites/default/files/cb/cwo08_11.pdf
[hereinafter Child Welfare Outcomes 2008-2011],22 which placed
the Commonwealth forty-first among fifty-two reporting
jurisdictions, Trial Ex. 1084, Table Summaries Child Welfare
Outcomes Data 2010 (“Child Welfare Outcomes Tables 2010”) 6.23
The next year, the rate of reentry crept up to 15.6%, Child
Welfare Outcomes 2008-2011, at 178, and Massachusetts’s national
rank fell to forty-third, Trial Ex. 1085, Table Summaries Child
Welfare Outcomes 2008-2011: Report Congress (“Child Welfare
Outcomes Tables 2008-2011”) 7. Although the reported rates of
22 Technically, the Children’s Bureau report on child welfare outcomes publicizing statistics from federal fiscal years 2008 to 2011 is not in evidence. See Parties’ Am. Uncontested Ex. List., Ex. A, Joint Uncontested Exs., ECF No. 367-1. The Court did, however, admit in evidence under Federal Rule of Evidence 1006 a series of tables prepared by Elissa Glucksman Hyne (“Hyne”), a senior policy analyst at Children’s Rights, the national watchdog organization that spearheaded this action against the Defendants on behalf of the Plaintiffs. See Trial Tr. vol. 8, 52:6-11, 53:7-20, 57:19-20; Trial Ex. 1084, Table Summaries Child Welfare Outcomes Data 2010; Trial Ex. 1085, Table Summaries Child Welfare Outcomes 2008-2011: Report Congress. Hyne’s tables reproduce data found in the Children’s Bureau report. See Trial Tr. vol. 8, 69:7-9. Consequently, the Court cites to the online-accessible version of the report.
23 In addition to summarizing federal child welfare outcome data, Hynes’s tables assigned rankings to each state, the District of Columbia, and Puerto Rico on the basis of their performance on various child welfare outcome measures. See Trial Tr. vol. 8, 56:4-15. The Court declined to admit the rankings, given that they were the product of “simple arithmetic.” Id. at 57:22; see id. at 57:19-23. The Court has since independently verified Hyne’s calculations and thus gives credence to her ranked orderings as a reflection of the Court’s own arithmetic computation.
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reentry from federal fiscal years 2010 and 2011 marked
improvements over those seen in the prior decade, they
nevertheless deviated fairly significantly from the national
medians at that time. See Child Welfare Outcomes 2008-2011, at
viii tbl.2 (showing median rates of 12.6% and 11.8% for 2010 and
2011, respectively).
Where reunification is impossible or impracticable, the
timeliness of adoptions serves instead as a bellwether of
progress in permanency. See Trial Tr. vol. 19, 17:13-18:6.
According to results from the first-round CFSR for federal
fiscal year 1999, the median length of time for foster children
in Massachusetts to achieve adoption was 49.28 months. First-
Round CFSR Statewide Assessment CSF-000000428-30. During
federal fiscal year 2010, Massachusetts achieved a composite score24 of 83.7 in timeliness of adoptions, Child Welfare
24 The composite score reflects an aggregate appraisal of five individual measures related to the timeliness of adoptions: (1) the percentage of children discharged from foster care to a finalized adoption less than twenty-four months from the date of the last removal from home; (2) the median length of stay in care, from the date of the last removal to the date of adoption, of all children in foster care who were discharged to a finalized adoption; (3) the percentage of children in foster care who were in care for seventeen or more continuous months as of the first day of the year and who were discharged to a finalized adoption by the final day of the year; (4) the percentage of children who were in care for seventeen or more continuous months and not legally free for adoption as of the first day of the year, who then became legally free for adoption during the first half of the year; and (5) the percentage of
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Outcomes 2008-2011, at 178, which represents forty-seventh place among fifty-two reporting jurisdictions, Child Welfare Outcomes Tables 2010, at 7. For fiscal year 2011, Massachusetts obtained a composite score of 76.2, Child Welfare Outcomes 2008-2011, at 178, which caused it to drop two places to forty-ninth place, Child Welfare Outcomes Tables 2008-2011, at 8. On a micro level, Dr. Azzi-Lessing’s case file review squared with the national results. She found that DCF had failed to achieve permanent placements for all five Named Plaintiffs. See Trial Tr. vol. 7, 73:3-77:15. What’s more, DCF’s efforts in this regard were plagued by inconsistency and “inertia,” Trial Tr. vol. 7, 75:21, causing the Named Plaintiffs to “languish” in foster care for years, id. at 73:8, without clear prospects for permanency.
E. Case Worker Visitation Federal law requires that caseworkers visit the children in foster care to whom they are assigned on a monthly basis. 42 U.S.C. § 624(f)(1)(A). Research shows that a correlation exists between the frequency of caseworker visits and favorable foster care outcomes. Trial Tr. vol. 17, 107:20-21, May 3, 2013, ECF No. 342.
children discharged to a finalized adoption less than twelve months after becoming legally free for adoption. Child Welfare Outcomes 2008-2011, at 178 & n.16.
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From 2008 to 2011, between 43% and 50% of children received monthly visits from the caseworkers, Child Welfare Outcomes 2008-2011, at 173, which fell far below the 90% benchmark set for this metric during that time period, Trial Ex. 153, Monthly Caseworker Visits Data Fiscal Year (FY) 2007, at 3. CRC’s review indicated that only 12.9% of children in the two-year cohort received consistent monthly contact from their caseworker throughout the two-year review period. CRC Study tbl.41. The study also found that 16.1% of children in the entry cohort received no contact at all from their caseworker during their first month in DCF’s care. CRC Study tbl.12.
F. Services 1. Preparing Foster Children for Adulthood
The provision of life skills to foster children is a core responsibility of child welfare agencies. See, e.g., Trial Ex. 2, Case Practice Policy & Procedures Manual DCF POL 201 (“It is critical that youth served by [DCF] be systematically and comprehensively prepared for independent living to enable them to function as productive members of society.”). To this end, 42 U.S.C. section 675(5)(H) provides, in relevant part:
[D]uring the 90-day period immediately prior to the date on which [a foster] child will attain 18 years of age, . . . a caseworker on t he staff of the State agency, and, as appropriate, other representatives of the child [must] provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child, [which]
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includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services, . . . information about the importance of designating another individual to make health care treatment decisions on behalf of the child if the child becomes unable to participate in such decisions and the child does not have, or does not want, a relative who would otherwise be authorized under State law to make such decisions, and provides the child with the option to execute a health care power of attorney, health care proxy, or other similar document recognized under State law, and is as detailed as the child may elect . . . .
42 U.S.C. § 675(5)(H).
Many children, however, “age out” of foster care without
ever having learned the necessary life skills to succeed outside
the walls of a foster placement. In both the first- and second-
round CFSRs, the provision of independent living services was
deemed an area needing improvement. See First-Round CFSR Final
Assessment CSF-000000327; Second-Round CFSR Final Report CSF-
000000777. Indeed, in the third quarter of state fiscal year
2012, nearly as many children left their placements at the age
of eighteen as were adopted. DCF Quarterly Reports, 2008-2012,
Tab Q3 2012, at 60 tbl.21. 2. Medical Services
Every child, upon entry into the Massachusetts foster care
system, must be “screened and evaluated under the early and
periodic screening, diagnostic and treatment [(“EPSDT”)]
standards established by Title XIX of the Social Security Act.”
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Mass. Gen. Laws ch. 119, § 32. EPSDT services are manifold: among others, they include regular pediatric preventive healthcare visits, physical and nutritional assessments, and developmental and behavioral screening. See Trial Ex. 621, Early & Periodic Screening, Diagnosis, & Treatment (EPSDT) Med. Protocol & Periodicity Schedule (Med. Schedule) & EPSDT Dental Protocol & Periodicity Schedule (Dental Schedule) DCF00642760310. “Medical passports” are documents prescribed by Massachusetts regulations for use in the foster care system to keep track of a child’s medical, dental, mental health, and developmental history for the length of the child’s stay in foster care. 110 Mass. Code Regs. 7.124. DCF personnel are required to maintain medical passports for each child in its care, id., and are expected regularly to update the passports with relevant information regarding each child’s responses to medication and treatment interventions, see Trial Tr. vol. 2, 60:13-61:3, 63:7-15.
Evidence in the record suggests that foster children in Massachusetts commonly receive medical screenings in an untimely fashion, if at all. In 2011, just 12.1% of foster children received on-time, seven-day medical visits; 7.1% received ontime, thirty-day medical visits; and 18.2% completed a medical visit. Trial Ex. 610, Monthly Compliance Medical Screenings Due 2011, at 1.
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It is also rare to have medical information that is fully complete. The CRC researchers found that only 52.1% and 73.7% of children in the entry cohort and children in the two-year cohort were provided medical passports at their scheduled time. CRC Study Appendix C tbl.C37. Dr. Bellonci opined that he rarely sees medical passports when meeting with patients, which reflects something akin to the rule rather than the exception. Trial Tr. vol. 2, 62:1-17 (“In my 20 years of working with this population, I saw medical passport approximately three or four times. And that’s not an unusual experience.” Id. at 62:5-7).
3. Psychotropic Medication Children in foster care often enter the system with a history of biological and psychological problems, due in no small part to abuse, neglect and frequent environmental changes. See Trial Ex. 17, AACAP Position Statement Oversight Psychotropic Medication Use Children State Custody: Best Principles Guideline (“AACAP Guidelines”) 1. As a result, foster children are often prescribed psychotropic drugs to treat persistent behavioral and emotional issues. See id. National data suggests that foster children in Massachusetts are prescribed psychotropic drugs at rates exceeding those in other states. A report published by the U.S. Government Accountability Office (the “GAO”) in 2011, reviewing psychotropic drug prescription rates and oversight practices in
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five states (including Massachusetts) in 2008, found that Massachusetts had the highest percentage of children prescribed psychotropic medication among the states considered in the report.25 Compare Trial Ex. 16, Foster Children: HHS Guidance Could Help States Improve Oversight Psychotropic Prescriptions (“GAO Report”) 102 app.XVII (noting that 39.1% of foster children in Massachusetts are prescribed psychotropic drugs), with id. at 101 app.XVII (noting that 22.0% of foster children in Florida are prescribed psychotropic drugs), id. at 103 app.XVII (noting that 21.0% of foster children in Michigan are prescribed psychotropic drugs), id. at 104 app.XVII (noting that 19.7% of foster children in Oregon are prescribed psychotropic drugs), and id. at 105 app.XVII (noting that 32.2% of foster children in Texas are prescribed psychotropic drugs). More particularly, 4.9% of children between the ages of zero and five, 44.8% of children between the ages of six and twelve, and 53.4% of children between the ages of thirteen and seventeen had been prescribed psychotropic drugs, which exceeded the prescription percentages for nonfoster children in each demographic band by between two and four times. Id. at 102 app.XVII. Overall, foster children in Massachusetts were also
25 Results derived from the CRC’s more targeted population study support those announced by the GAO. See CRC Study Appendix C tbl.C46 (finding that in the CRC study, 16.5% of the children in the entry cohort and 52.1% of the children in the two-year cohort were given psychotropic medication).
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3.8 times more likely to be prescribed psychotropic drugs than children outside of foster care in the Commonwealth, see id., which sat squarely in the middle range among the five states,26 see id. at 101 app.XVII, 103-05 app.XVII.
There are numerous side effects associated with taking psychotropic medications, including hallucinations, mania, paranoia, headaches, nausea, sexual and menstrual problems, rashes, suicidal thoughts, and pancreatic and liver damage, see id. at 41-44 app.II, and additional indicia point to the potential for other health risks. Research suggests that the concomitant use of five or more psychotropic drugs by children holds no medical benefits, that higher doses of psychotropic drugs may prove less effective than the recommended dose, and that no medical evidence supports the use of psychotropic drugs in children under the age of one. See id. at 14-15. The GAO report found that 1.33% of foster children in Massachusetts are prescribed five or more psychotropic medications concomitantly, id. at 107 app.XVIII, which exceeds the percentage of children prescribed five or more medications in all four of the other surveyed states, see id. at 106 app.XVIII, 108-10 app.XVIII.
26 The Court acknowledges, however, the danger in drawing conclusive inferences from comparisons between children in and outside of foster care, as the children who enter foster care may, given their often severe physical and emotional issues and troubling life experiences, need medical intervention more than the average child.
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Moreover, 2.21% of foster children in Massachusetts were given dosages of psychotropic medications exceeding the maximum amounts cited on FDA-approved drug labels, id. at 107 app.XVIII, a percentage that dwarfed those found in three of the four other states, see id. at 106 app.XVIII, 108-10 app.XVIII.
The administration of psychotropic drugs is only one piece of the puzzle, however: informed consent, clinical oversight, and monitoring systems are required to have a fully functioning medical apparatus in the foster care system. Psychotropic drugs cannot be prescribed without the informed consent of either a child’s parent or guardian or the state, standing in loco parentis, see Trial Tr. vol. 2, 9:20-10:3; AACAP Guidelines 2, and according to AACAP guidelines, the assent27 of the child herself also ought be obtained, AACAP Guidelines 2. Clinical oversight and documentation -- manifested in the form of medical passports -- are particularly helpful, given the frequent movement of foster children from one placement to the next. Cf. Trial Tr. vol. 2, 64:24-65:12 (explaining that medical treatment of children who experience multiple placement moves is
27 “Consent” refers to the approval of medical treatment given by an individual who is legally empowered to give such approval; “assent,” on the other hand, refers to the approval of medical treatment given by one who is legally unable to give her consent, like a child. See Jessica Setless, Note, The Crisis of Over-Medicating Children in Foster Care: Legal Reform Recommendations for New York, 19 Cardozo J.L. & Gender 609, 623 n.140 (2013).
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challenging because of the multiplicity of sources a medical provider must canvas to collect a patient’s complete medical history). Further, federal law calls for the deployment of comprehensive monitoring systems, 42 U.S.C. § 622(b)(15)(A) (mandating that child welfare services plans contain, inter alia, “a plan for the ongoing oversight and coordination of health care services for any child in a foster care placement”), which aim to moderate the risks associated with psychotropic medications, see AACAP Guidelines 2 (noting that child welfare agencies should, at a minimum, “[e]stablish guidelines for the use of psychotropic medications for youth in state custody”28).
Proof of unauthorized or excessive psychotropic prescriptions were rampant in the three Named Plaintiffs’ case files reviewed by Dr. Bellonci. See Trial Tr. vol. 2, 80:582:19. Similarly, medical files reviewed in the CRC study rarely included critical information such as when a child had first been prescribed a medication or even whether a child was being treated with medication at all. See Trial Tr. vol. 4, 50:1-9.
28 AACAP lists the establishment of child welfare training requirements, the creation of programs for the oversight of medication utilization, the maintenance of certain medical records information, and the design of a psychiatric consultation program as recommended or ideal action. See AACAP Guidelines 2-3.
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Massachusetts has a mechanism for overseeing the administration of certain psychotropic drugs, however. Pursuant to the Rogers process,29 courts are formally required to authorize the prescription of antipsychotic medications -- a subclass of drugs within the family of psychotropic medications, Trial Tr. vol. 1, 126:20-25 -- to children in DCF custody. Trial Tr. vol. 10, 116:1-5, Feb. 15, 2013, ECF No. 334. In 2009, a working group comprised of representatives from Massachusetts health and welfare agencies and university researchers, the Massachusetts Department of Mental Health, the OCA, and DCF was convened to address issues related to the process of obtaining consent for the prescription of psychotropic medications to children. See Trial Tr. vol. 2, 31:16-17; Trial Tr. vol. 10, 116:6-9, 116:13-20; Trial Ex. 630, Rogers Process Working Grp. Minutes DCF004956552. A study commissioned by the OCA in service of the Rogers working group identified a host of benefits of the Rogers process -- namely, secondary review of antipsychotic prescriptions prior to treatment, the appointment of guardians ad litem, and dedicated
29 The Rogers process takes its name from Rogers v. Commissioner of Dep’t of Mental Health, 390 Mass. 489 (1983), in which the Massachusetts Supreme Judicial Court held that an incompetent patient may be compelled to undergo nonemergency, antipsychotic drug therapy only after a judicial determination is made to that effect. See id. at 500-02. The court’s reasoning was later adopted in regulations by DCF’s predecessor agency. Trial Ex. 1090, Examination Rogers Process Youth Custody Mass. Dep’t Children & Families 2.
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resource allocation. Trial Ex. 1090, Examination Rogers Process Youth Custody Mass. Dep’t Children & Families (“Rogers Report”) 8. A number of challenges were also brought to the fore: the Rogers process was without adequate standardization, coordination, and quality assurances; was slow-going; failed to take proper account of medical expertise; and featured inadequate systemic oversight of antipsychotic medication administration. Id. at 9-10. Perhaps most troubling, drugs that are not listed as Rogers-process eligible -- namely, nonantipsychotic psychotropic medications, of which there are numerous kinds -- are prescribed without the consent of a court or of DCF. Pls.’ Designations Fact Dep. Jan Nisenbaum 194:1-8, May 18, 2012, ECF No. 226-1. The study offered a number of recommendations that might resolve these issues, see Rogers Report 13-16, but it is unclear whether any of the recommendations that emerged out of the Rogers working group were ever implemented, see Trial Tr. vol. 2, 35:23-36:1.
G. Caseloads Massachusetts General Laws chapter 18B, section 7 empowers the Commissioner of DCF with the authority to “establish reasonable caseload rates.” Mass. Gen. Laws ch. 18B, § 7(a). The term “caseload” refers to the number of children for which an individual caseworker is responsible at a given time. Trial Tr. vol. 11, 31:25-32:1. Because the mere number of children
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per caseworker fails fully to capture the actual burden that caseworkers must shoulder, however, “workload” is the more favored metric to use to analyze the reasonability of caseloads. See id. at 32:9-12. A caseworker’s workload comprises a “multitude of tasks related to the actual caseload of one child,” id. at 32:22-23, including traveling to and from the child’s home to facilitate sibling visits, scheduling appointments, composing permanency requirements, and performing data entry, see id. at 32:12-21. For a workload to be deemed manageable, national standards dictate that caseworkers “simply have to have enough time to meet their practice requirements based on how their state is organized, or how their agency is organized,” id. at 35:12-18, taking into consideration caseworkers’ qualifications and subject-matter competencies, id. at 35:18-20. Generally speaking, a workload study must be undertaken to gauge the appropriateness of caseworker caseloads. Id. at 36:20-22. Nevertheless, national standards suggest that, even in the absence of a workload study, caseloads of between twelve and eighteen children represent the maximum that a caseworker can carry while still satisfying her job requirements. See id. at 36:22-25 (noting that CWLA recommends caseload ratios of between twelve and fifteen children per caseworker); id. at 37:16-18 (noting that COA recommends
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caseload ratios of between twelve and eighteen children per caseworker).
DCF employs individuals known in internal agency parlance as “ongoing” caseworkers who provide continuous services to children in the foster care system. See id. at 38:8-17. Unlike their equivalents in most other states’ child welfare agencies, DCF’s ongoing caseworkers carry “mixed” caseloads, meaning that they are responsible for providing services to children placed both in their family home or in a foster home. See id. at 40:23-41:3; Trial Ex. 642, Dep’t Children & Families Proposal Reducing Ongoing Caseloads (“15 Families Initiative Presentation”) DCF010275221. DCF has not conducted or commissioned its own workload study, nor has it adapted those performed by other child welfare agencies. See Trial Tr. vol. 11, 45:19-24; Trial Tr. vol. 16, 92:11-15. Instead, DCF’s current caseload standards -- which derive from a collective bargaining agreement originally struck in the mid-1980s between the Commonwealth and the union representing the interests of DCF caseworkers, see Trial Ex. 641, Dep’t Children & Families Rationale for Reducing Ongoing Caseloads DCF010278533 -prescribe that ongoing caseworkers be assigned eighteen cases
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per month.30 Trial Ex. 21, Collective Bargaining Agreement 121. In 2005, the two contracting parties agreed in a memorandum of understanding to assign weights to caseloads to account more accurately for caseworkers’ actual workload. Trial Ex. 647, Mem. Understanding Between Dep’t Soc. Servs. & DSS Chapter SEIU Local 509 Concerning Family Res. Workers DCF003540781 (weighting, for example, 0.6 points per active foster home, 0.9 points per foster home undergoing licensure, 0.75 points per licensed foster home on probation, and 0.4 points per out-ofstate foster home).
Since at least 2008, scores of DCF caseworkers have carried caseloads in excess of the agreed-upon eighteen cases. See, e.g., Trial Ex. 957, Workers Weighted Caseloads Greater 18 Reports, 2008-2012 (“Caseloads Reports”), Tab June 2008, at 57 (reporting that as of June 30, 2008, 1034 social workers across six regional offices and a special investigations unit had weighted workloads of over eighteen cases); id. Tab June 2009, at 48 (reporting that as of June 30, 2009, 836 social workers across six regional offices and a special investigations unit had weighted workloads of over eighteen cases); id. Tab June 2010, at 24 (reporting that, as of June 30, 2010, 777 social
30 This 18:1 caseload ratio applies regardless of whether a child is in an in-home or out-of-home placement. See Tr. vol. 11, 43:14-18.
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workers across six regional offices had weighted workloads of over eighteen cases); id. Tab June 2011, at 15 (reporting that, as of June 30, 2011, 492 social workers across four regional offices had weighted workloads of over eighteen cases).31 Indeed, as of August 2012 (the last month from which the parties could gather facts in this case), 390 caseworkers had weighted workloads of greater than eighteen cases. Id. Tab August 2012, at 11.
Observing that the 18:1 caseload ratio established in the 1980s collective bargaining agreement was “[r]apidly [b]ecoming [o]bsolete,” 15 Families Initiative Presentation DCF010275219, DCF launched a campaign known as the “15 Families Initiative,” with the aim of reducing caseload ratios to 15:1, see Pls.’ Designations Fact Dep. Angelo McClain DCF’s Chief Staff (“McClain Dep.”) 132:1-23, May 25, 2012, ECF No. 226-1. DCF acknowledged that such a reduction would bring the Commonwealth in line with national trends and standards. 15 Families Initiative Presentation DCF010275220-21. In order to achieve this goal, however, DCF estimated that it would need nearly two hundred additional ongoing caseworkers at an approximate annual cost of about $10,100,000. Id. at DCF010275224.
31 The statistics cited here, which come from DCF’s own caseload reports, include data for assessment unit, adolescent unit, and intake/investigations unit caseworkers, as well as ongoing caseworkers. See Caseloads Reports.
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H. Qualifications and Training Optimally, child welfare agencies should implement social worker training development programs that feature, among other elements, new-hire curricula, on-the-job and supervised training, performance evaluations, continuing in-service training, channels for feedback, and plans for routine reviews and updates of training practices. See Trial Tr. vol. 11, 93:621. See generally Trial Ex. 1092, Building Effective Training Sys. Child Welfare Agencies. DCF regularly hires ongoing caseworkers through a competitive, Department-sponsored internship program. Pls.’ Designations Rule 30(b)(6) Dep. Olga I. Roche Re: Staffing, Caseloads, & Training 146:1-147:1, Jan. 20, 2012, ECF No. 226-1. Candidates are often recent college graduates holding a bachelor’s degree or an associate’s degree paired with relevant work experience. Id. In either case, caseworkers typically arrive at DCF full-time with a fair degree of prior experience. See id. New recruits must participate in a competency training program, held monthly, where incoming caseworkers are trained in areas ranging from child development and diversity to deescalation and safety techniques. Trial Ex. 374, Annual Progress & Servs. Report: Fed. FY2012 (“DCF FY2012 Progress Report”) DCF007413805. Funding cuts, however, have led to a
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reduction in the number of training programs, see id. at DCF007413695 (recounting a cut of $200,000 from the budget for the Child Welfare Training Institute since fiscal year 2011), and due to heavy workloads, existing training opportunities frequently go underutilized, see First-Round CFSR Final Assessment CSF-000000356.
I. Accountability Systems To maintain eligibility for funding under Title IV-B of the Social Security Act, states must prepare and submit a five-year Child and Family Services Plan (“CFSP”). State & Tribal Child & Family Services Plan, Children’s Bureau, http://www.acf.hhs.gov/ programs/cb/programs/state-tribal-cfsp (last visited November 20, 2013). The CFSP is a document that describes foster care services offered by the state. 45 C.F.R. § 1357.10(c). Among a host of other requirements, the CFSP must include “a description of the quality assurance system [the state] will use to regularly assess the quality of services under the CFSP and assure that there will be measures to address identified problems.” 45 C.F.R. § 1357.15(u). There is at present a dearth of staff members whose roles are dedicated to managing continuous quality improvement. See Pls.’ Designations Fact Dep. Ruben Ferreira 13:16-15:14, Feb 2, 2012, ECF No. 226-1. DCF’s internal review system is driven in part by a periodic publication known as the Continuous Quality Improvement
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management report, commonly referred to as a scorecard. See Trial Ex. 964, CFSR Measures Reports 2008-2012 (“CFSR Scorecards”); Trial Tr. vol. 14, 59:24-25, Apr. 30, 2013, ECF No. 339. Each quarter, the CFSR scorecard documents the agency’s twelve-month performance on seventeen measures tracked nationally by ACF, such as “Absence of Maltreatment Recurrence,” “Median Time to Reunification,” and “Percent [of Children Exiting to Adoption] Who Exit In Less Than 24 Months.” See Trial Tr. vol. 14, 59:24-25, 60:2-8, 60:22-23. For each measure, the scorecard compares the state’s overall performance and the performance of individual regions and cities to a target benchmark based on nationwide performance. See CFSR Scorecards. The results are distributed to DCF management staff throughout the state. See Trial Tr. vol. 14, 60:8-11.
To bolster internal agency morale and to help managers quickly identify areas in the most need of improvement, the presentation of information on the scorecards has changed over the years. Id. at 74:7-19; 76:23-25, 76:1-12. The first scorecards issued in 2008 labeled data with green and red arrows to identify whether DCF performed at a level above or below the national standard. See, e.g., CFSR Scorecards, Tab December 31, 2008. In 2011, the scorecard design began to use letter grades and a new grading method, based on how close DCF’s performance came to meeting the target benchmark and the national median.
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See CFSR Scorecards, Tab June 30, 2011. For example, the scorecard issued on December 31, 2011 shows that in the preceding twelve months, there was “Absence of Maltreatment Recurrence” in 92.3% of DCF cases statewide. See CFSR Scorecards, Tab December 31, 2011, at DCF011158648. The target performance level for this measure is 94.6%,32 and the national median is 93.3%. Id. Whereas previous scorecards would have used a red arrow to highlight that DCF fell short of the benchmark that year, under the new grading method the state was assigned A+ letter grades for its performance relative to the target benchmark and the national median.33 This means that an A+ letter grade can correspond to performance at a level just below the national median. See Trial Tr. vol. 14, 78:19-23. Under this grading method, the same scorecard assigned to DCF an A- and an A+ grade in another area where the agency underperformed the twenty-fifth percentile of the national standard. See CFSR Scorecards, Tab December 31, 2011, at DCF011158648 (awarding, on the measure “C1.2: Median Time to Reunification,” an A- for the state’s performance relative to
32 Target performance levels for all measures did not change from 2008 through September 2012, the date of the last scorecard submitted in evidence. See CFSR Scorecards.
33 This grade is determined by calculating the ratio between DCF’s performance and the national standard. In other words, DCF achieved 97.5% of the national standard because the stateto-national ratio of 92.3 to 94.6 is 97.5%, a percentage corresponding to an A+ grade.
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the twenty-fifth percentile and an A+ for the state’s performance relative to the median).
J. Foster Care Maintenance Payments The AACWA designates certain federal funds to be allocated to states to assist with their administration of foster care services. To remain eligible to receive federal funds under the AACWA, states must, inter alia, issue per diem allowances -known more commonly as “foster care maintenance payments” -- to foster parents for the costs associated with raising children removed from their familial homes.34 See 42 U.S.C. § 672(a)(1). The daily rates at which these foster care maintenance payments ought be disbursed are set by the U.S. Department of Agriculture (“USDA”). See Mass. Gen. Laws ch. 119, § 23(h). Massachusetts law requires DCF to make foster care maintenance payments at the USDA-recommended levels and periodically to adjust the amount of these payments in accordance with “the financial circumstances of the family, the needs of the child or the rate of inflation.” Id. From 2004 until March 2012, DCF’s foster care maintenance rates stagnated, lingering at $17.10 per day for children
34 These include costs associated with “food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, reasonable travel to the child’s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.” 42 U.S.C. § 675(4)(A).
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between the ages of zero and five, $17.96 per day for children between the ages of six and twelve, and $18.59 per day for children ages thirteen and over. Trial Ex. 187, Historical FC Rates (listing historical foster care maintenance and other allotment rates from before fiscal year 1997 to the present). Although the Court does not have before it the USDA rates for the entirety of that time period, the USDA rates established in 2008 (and apparently in effect until at least 2010) were set at $20.60, $23.14, and $24.52 per day for each of the three respective demographic groups in the Urban Northeast region. Trial Ex. 11, Sept. 28, 2010 Letter Angelo McClain Re: FY12 Maintenance Request (“Sept. 28 McClain Letter”) DCF000827080. DCF’s rates over four years, therefore, consistently fell between 17% and 24% below the 2008 USDA rates. Id.
In fiscal years 2010 and 2011, DCF issued foster care recompense payments of $5 per day, per child for expenses incurred over the course of two six-month periods during those years in an effort to reimburse foster parents retroactively for the outlays they had made while receiving below-USDA-level foster care maintenance payments. Pls.’ Designations 30(b)(6) Dep. Ellen Finnegan Re: Foster Care Maintenance Payment Rates 163:14-164:1, Oct. 5, 2011, ECF No. 226-1. These catch-up payments, however, were regarded only as temporary expenditures; the official foster care maintenance rate schedule did not see
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any upward adjustment. See Trial Tr. vol. 12, 20:21-21:1; see also Trial Ex. 13, Feb. 23, 2010 Letter Angelo McClain Re: Foster Care Recompense Payment DCF003570659. Moreover, in certain instances, the payments proved fruitless by the time they were disbursed, as the children the payments were intended to benefit no longer resided with the foster parents receiving the recompense. See Trial Tr. vol. 12, 20:14-18.
On March 1, 2012, thanks to a $12,000,000 set-aside in the state budget, DCF finally brought its foster care maintenance rates up to USDA levels. McClain Dep. 150:18-151:9. At trial, however, McClain recounted the rather unexpected nature of the rate increase, Trial Tr. vol. 15, 110:20-22, May 1, 2013, ECF No. 340 (“The stars aligned and we were able, we got $12 million in the budget last year and we were able to raise the rates.”), and expressed a degree of uncertainty as to how the Department would be able to obtain the funds necessary to raise rates in the upcoming fiscal year, id. at 110:23-111:5 (“We calculated [the foster care maintenance payment rate] for this year starting July 1st, and we would need another $2 million to raise the rates again. . . . [A plan to seek that money from the state legislature] was in the governor’s budget, and we’re hoping it will make its way through the legislative process.”). Crabtree also testified to the fact that although DCF managed to raise its rates, “[the raise] was not legislatively part of the
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code[,] [so] with a new commissioner . . . that could change.” Trial Tr. vol. 12, 23:15-17; see also id. at 23:10-21.
K. Case Plans States accepting federal funds for the administration of child welfare systems are also required under the AACWA to “develop[] . . . a case plan . . . for each child receiving foster care maintenance payments.” 42 U.S.C. § 671(a)(16). A case plan must include a broad swath of information pertaining to a foster child, such as the appropriateness of the child’s prospective placement, details on the services that the child is expected to receive, the child’s health and education records, and plans certifying the steps taken towards ensuring permanency and educational stability. 42 U.S.C. § 675(1)(A)-(G). In the CRC study, 14.6% of children in the entry cohort and 35.1% of children in the two-year cohort were missing case plans in their case files.35 CRC Study tbls.28a & 55a. Of the entry cohort case files containing case plans for children who had been in DCF for thirty-one or more days, many of them were incomplete: only 65.8% of the case plans contained child service data, and 73.9% of the case plans contained family service data. Id. tbl.29. The case plans for children in the two-year cohort featured even greater lacunae. See id. tbl.56 (reporting that
35 The CRC researchers referred to “service plans” in their study. That term is synonymous with “case plans,” however.
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only 31.8% of two-year cohort case plans contained child service data and that a mere 10.7% of two-year cohort case plans contained any family service data).
L. Notice and Process DCF must conduct a review of foster care services and goals within six months of a child’s removal from her family home and, thereafter, every six months. See 110 Mass. Code Regs. 6.10(1). A hearing setting out permanency goals must be held within a year of a child’s removal from her home. Mass. Gen. Laws ch. 119, § 29B(a). Massachusetts regulations provide that DCF “shall give written notice to a client36 if the Department intends to deny, reduce, or terminate [foster care] services, or increase the cost thereof.”37 110 Mass. Code Regs. 8.01(1). The notice must include, inter alia, “a statement of what action the Department intends to take,” “the reasons for the action,” and “the date on which the action shall become effective,” 110 Mass. Code Regs. 8.01(1)(a)-(c), and must be memorialized in writing and delivered to the foster child or family no less than
36 Massachusetts regulations define a client as “[a]n applicant for or recipient of Department services,” 110 Mass. Code. Regs. 10.02. For the purposes of Fair Hearings and other grievances, “[f]oster parents, pre-adoptive parents or adoptive parents in their status as such [are] considered clients.” Id.
37 In certain instances -- none of which apply here -advance notice need not be given. See 110 Mass. Code Regs. 8.01(3).
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fourteen days before the date of the intended action. 110 Mass. Code Regs. 8.01(2). The suspension of services may be appealed through an administrative review known as a “Fair Hearing,” 110 Mass. Code Regs. 10.10, which must be held within sixty-five business days of the appeal’s initiation, 110 Mass. Code Regs. 10.10(1). It is unclear whether notice of suspended services is provided in every instance. See, e.g., Pls.’ Designations Fact Dep. Virginia Peel (“Peel Dep.”) 84:24-85:22, Feb. 8, 2012, ECF No. 226-1. Budget cuts have led to significant backlogs in fair hearings. McClain Dep. 147:17-148:1.
In the CRC study, 11.6% of children in the entry cohort had received a foster care review within six months of entering DCF custody, and 57.5% of such children had attended a permanency hearing. CRC Study tbl.20a. In the two-year cohort, 26.9% of children had had a foster care review within six months of entry, while 61.6% of said children had attended a permanency hearing. CRC Study tbl.47a. Comparative statistics regarding other states’ performance in providing notice and process to children in foster care are not available for cross-reference, however. III. RULINGS OF LAW
A. Standard of Review Federal Rule of Civil Procedure 52(c) (“Rule 52(c)”) provides the standard that governs motions for judgment on the
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record38 proffered to a court during the course of a jury-waived trial. See Federal Ins. Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007). A court must grant a motion for judgment on the record “where the plaintiff fails to make out a prima facie case, or despite a prima facie case, the court determines that the preponderance of evidence goes against the plaintiff’s claim.” In re Stewart, No. MB 12-017, 2012 WL 5189048, at *7 (B.A.P. 1st Cir. Oct. 18 2012) (quoting In re Giza, 458 B.R. 16, 24 (Bankr. D. Mass. 2011)) (internal quotation marks omitted); see also Morales Feliciano v. Rullán, 378 F.3d 42, 59 (1st Cir. 2004) (“When a party has finished presenting evidence and that evidence is deemed by the trier insufficient to sustain the party’s position, the court need not waste time, but, rather, may call a halt to the proceedings and enter judgment accordingly.”). Unlike a motion for summary judgment, a court reviewing a motion for judgment on the record is not obligated to indulge all inferences in favor of the nonmoving party. See Stewart, 2012 WL 5189048, at *7.
B. Institutional Reform Litigation As a general matter, institutional reform litigation is a creature poorly suited for the courts, as the role of the
38 A motion for judgment on the record is synonymous with one for judgment as a matter of law made during the course of a bench trial, which receives treatment equivalent to a motion for judgment on partial findings under Rule 52(c). See Federal Ins. Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007).
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workaday trial judge in such litigation is often rather
precarious at best and downright ineffectual at worst.39 Not
insignificantly, an award of the injunctive and declaratory
relief sought by the Plaintiffs here would encroach upon terrain
that is rightfully the province of the legislature, see Horne v.
Flores, 557 U.S. 433, 448 (2009) (“[I]nstitutional reform
injunctions often raise sensitive federalism concerns. Such
litigation commonly involves areas of core state responsibility
39 The late Judge Robert Keeton, a consummate jurist and erstwhile colleague, entertained a similar challenge to the Massachusetts foster care system more than three decades ago, which ultimately resulted in the ordering of a wide array of institutional reforms. See Lynch v. King, 550 F. Supp. 325 (D. Mass. 1982) (Keeton, J.). Yet the fact that the Plaintiffs have revived many of the same claims in this instant action proves the limited utility that judicial orders have in effecting large-scale, structural change. Indeed, in the lead-in to his opinion, Judge Keeton presciently penned:
[H]owever sufficient the plaintiffs’ proof and the court’s jurisdiction may appear, the stark reality is that judicial power to give effect to rights created by Congress is meager. No doubt a primary factor in the failure of protection of victimized children has been limited resources. And yet, ironically, the only relief the court can award is an order compelling state officials to give up some of those resources -funds appropriated by Congress -- if federal requirements are not met. Thus, it may be that the only remedy the court can provide is a remedy that we shall later know to have been worse than none, and yet a remedy the court must grant when sought by persons legitimately entitled to demand it.
Id. at 327.
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. . . .”),40 and would commit this Court to the near-perpetual oversight of an already-complex child-welfare regime, cf. Abraham Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284 (1976) (noting that in institutional reform litigation “the trial judge has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effects on persons not before the court and require the judge’s continuing involvement in administration and implementation”). What is more, the redistribution of scarce governmental resources would no doubt produce certain negative externalities, not the least of which include the deprivation of other state agencies of the means needed to perform their functions fully. Horne, 557 U.S. at 448 (“When a federal court orders that money be appropriated for one program, the effect is often to take funds away from other important programs.”).
The Court’s primary role, however, is to adjudicate the claims before it, such external considerations notwithstanding.
40 See also John Choon Yoo, Who Measures the Chancellor’s Foot? The Inherent Remedial Authority of the Federal Courts, 84 Calif. L. Rev. 1121, 1123-24 (1996) (“[T]he Constitution does not permit the federal courts to exercise their remedial powers to engage in the structural reform of local institutions and local government. If the remedies needed to correct a constitutional violation lie outside a court’s traditional remedial powers, then separation of powers principles require that the answer come from the political branches, which are far better equipped to manage the structural reform of state and local institutions.”). The Court cites this article to note this restrictive point of view, not to endorse it.
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See Watson v. City of Memphis, 373 U.S. 526, 537 (1963) (“[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.”). The Court thus turns to the deprivation of constitutional rights claimed here.
C. Substantive Due Process To prevail on a claim of deprivation of substantive due process under the Due Process Clause of the Fourteenth Amendment, “a plaintiff must . . . show a deprivation of life, liberty, or property.” Connor B., 771 F. Supp. 2d at 159-60 (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)). The Supreme Court has on numerous occasions held that the Due Process Clause “generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney, 489 U.S. at 196; see also Lyng v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, 485 U.S. 360, 369 (1988); Harris v. McRae, 448 U.S. 297, 317-18 (1980); Lindsey v. Normet, 405 U.S. 56, 74 (1972). “[I]n situations where a state creates a ‘special relationship’ because of the limitation which [the state] has imposed on [an individual’s] freedom to act on his own behalf,” however, “its subsequent failure to protect an individual may amount to a
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substantive due process violation.” J.R. v. Gloria, 593 F.3d 73, 79 (1st Cir. 2010) (second and third alterations in original) (quoting Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005)) (internal quotation marks omitted). Numerous courts of appeals have held that a special relationship exists between state foster care agencies and the children held in their charge, see, e.g., Norfleet ex rel. Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 291–93 (8th Cir. 1993); Yvonne L. ex rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883, 892-94 (10th Cir. 1992); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851-52 (7th Cir. 1990); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987), and the First Circuit has assumed as much arguendo, J.R., 593 F.3d at 80.
The Supreme Court has confirmed, and the Defendants themselves acknowledge, that individuals consigned to the state’s care have a constitutionally guaranteed right to “basic human needs [such as] food, clothing, shelter, medical care, and reasonable safety.” DeShaney, 489 U.S. at 200; see also Defs.’ Mem. 6. Nevertheless, the Defendants challenge the premise advanced by the Plaintiffs that foster children enjoy any of the additional rights claimed in the complaint, Defs.’ Mem. 6 & n.9 -- namely, those to (1) “a living environment that protects foster children’s physical, mental and emotional safety and well-being”; (2) “services necessary to prevent foster children
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from deteriorating or being harmed physically, psychologically, or otherwise while in government custody”; (3) “treatment and care consistent with the purpose of the assumption of custody by DCF”; (4) “be maintained in custody [no] longer than is necessary”; (5) “receive care, treatment and services determined and provided through the exercise of accepted professional judgment”; and (6) “be placed in the least restrictive placement according to a foster child’s needs,” Compl. ¶ 303(b)-(g).
This Court adheres to the reasoning first advanced in this case by Judge Ponsor at the motion-to-dismiss stage, that the Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307 (1982), contemplates the first three putative rights as protected by the Constitution and that, by logical extension (particularly when viewed in light of the institutional failings discussed in Part II of this opinion), the last three items manifest the right to “reasonable care and safety,” and thus are protections to which the Plaintiffs are equally entitled. See Connor B., 771 F. Supp. 2d at 161; cf. Youngberg, 457 U.S. at 324 (noting that, in addition to providing basic necessities, “the State is under a duty to provide [the involuntarily committed] with . . . conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests”).
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Merely establishing that foster children may demand from the state the expansive rights that inhere in personhood, however, is insufficient to demonstrate a violation of due process. The conduct of the state with respect to individuals in its care must additionally shock the conscience of the Court. See Rivera, 402 F.3d at 35; see also Martínez v. Cui, 608 F.3d 54, 64 (1st Cir. 2010) (“[T]he shocks-the-conscience test . . . governs all substantive due process claims based on executive, as opposed to legislative, action.”) (citations omitted). There appears to be little consensus on the proper standard one ought apply in the deployment of the shocks-the-conscience test. Indeed, at least three different interpretations of the test have emerged out of the fray. The first standard, announced by the Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976), requires a showing of “deliberate indifference” on the part of state officials to the needs of those for whom they are responsible. Id. at 104-05. Six years later, in Youngberg v. Romeo, 457 U.S. at 307, the Supreme Court held that decisions made by a professional regarding those who have been involuntarily committed to state custody are to be regarded “presumptively valid” and that “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
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did not base the decision on such a judgment.” Id. at 323. Most recently, in County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court ruled that “in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8.
On the motions to dismiss, Judge Ponsor reviewed the merits of all three of the aforementioned tests but ultimately declined to adopt any of them, at least not in their independent forms.41 See Connor B., 771 F. Supp. 2d at 162-63. Instead, he devised a new, two-pronged approach that he deemed more suitable in the foster care context: “[T]o establish a substantive due process claim, Plaintiffs must show that Defendants’ conduct represented a substantial departure from accepted professional judgment, which deprived them of conditions of reasonable care and safety, and that such conduct shocks the conscience.” Id. at 163. Because no First Circuit authority explicitly prescribes the
41 Judge Ponsor noted that “Youngberg and Lewis are not mutually exclusive,” Connor B., 771 F. Supp. 2d at 162, and regarded Estelle as inapposite because that case pertained only to incarcerated prisoners, whose more limited rights are justified given that the “conditions of [their] confinement are designed to punish,” id. (quoting Youngberg, 457 U.S. at 321-22) (internal quotation marks omitted).
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engagement of any particular standard,42 and because inquiries into substantive due process are inherently context-dependent, cf. Lewis, 523 U.S. at 850 (“Rules of due process are not, however, subject to mechanical application in unfamiliar territory. . . . [O]ur 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.”), this Court treats Judge Ponsor’s construction of the shocks-the-conscience test as law of the case and turns now to applying it.
After reviewing the extensive record set before this Court, it is apparent that the Defendants, in their administration of state-run foster care services, did not substantially depart from widely accepted professional judgment. True, the laundry list of problems plaguing DCF is well documented: whether the relevant metric is performance in minimizing maltreatment in care, facilitating appropriate placements and ensuring placement stability, achieving permanency in placement outcomes, providing educational and medical services, administering caseload management and training, or guaranteeing accountability, DCF has
42 Technically, the First Circuit did apply the deliberate indifference standard in the foster care context in J.R. v. Gloria, 593 F.3d at 80-81. Judge Ponsor, however, convincingly articulated various reasons why that case is sufficiently distinguishable from the one at bar. See Connor B., 771 F. Supp. 2d at 162 n.5.
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failed not only to comport with national standards of care and state and federal requirements but also to comply with its own internal policies.
Yet “substantial departure,” as articulated in the case law, requires more than mere deviance from professional norms; contrary to intuition, courts have construed this standard to require the most wanton abandonment of caretaking responsibilities. See Yvonne L., 959 F.2d at 894 (“As applied to a foster care setting we doubt there is much difference in the [deliberate-indifference and substantial-departure] standards. ‘Failure to exercise professional judgment’ does not mean mere negligence as we understand Youngberg; while it does not require actual knowledge the children will be harmed, it implies abdication of the duty to act professionally in making the placements.”); Connor B., 771 F. Supp. 2d at 162 n.4 (“It is far from obvious . . . that the professional judgment standard creates an appreciably lower hurdle for plaintiffs [than the deliberate indifference standard].”).
With this is mind, it is not clear that the Defendants’ behavior has sunk to a level warranting injunctive relief. For example, when it comes to the rate of maltreatment in foster care, it is true that the Commonwealth lays claim to myriad dubious distinctions. See, e.g., Child Maltreatment 2010, at 57 tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15 (reporting
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that Massachusetts is consistently in the bottom quartile of all states in its performance on the metric of absence of maltreatment in foster care). These data do not reveal the entire picture, however. In 2008 -- the year in which Massachusetts garnered its lowest percentage absence of maltreatment, 98.93% -- the Commonwealth missed the 99.68% national standard by just three-quarters of a percent, and in recent years, the Commonwealth has been within half of a percentage point of the benchmark. See Child Maltreatment 2010, at 57 tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15. What is more, since at least 2006, less than 50% of all reporting states have made the cut, and most of Massachusetts’s higherranked peers beat out the Commonwealth by mere fractions of a percent. See Child Maltreatment 2010, at 57 tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15. Such slight differences in position, in conjunction with the fact that the majority of states fail to meet the national standard, do not sufficiently serve to indict the Massachusetts foster care system. Moreover, although DCF was not able to prevent maltreatment from occurring, it acted reasonably when such events took place by removing the foster child from the harmful environment. See, e.g., CRC Study tbl.18 (noting that roughly 5% of the children in the entry cohort sample population experienced substantiated instances of abuse or neglect and that approximately 91.6% of
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such children were removed); id. tbl.45 (noting that roughly 4.1% of the children in the two-year cohort sample population experienced substantiated instances of abuse or neglect and that 80% of said children were removed).
These considerations must be taken into account in the course of determining whether the Commonwealth’s subpar performance violates substantive due process, but the Defendants ought not view this opinion as encouragement to take excessive pride in the Department’s performance relative to the national standard or other state foster care systems. The Court is particularly troubled by the way DCF manipulates and presents relative performance data in its internally distributed CFSR scorecards. See, e.g., CFSR Scorecards, Tab September 30, 2012; see also Trial Tr. vol. 14, 77:21-80:11 (clarifying the Department’s method of determining grades); discussion supra Part II.I (discussing the CFSR scorecards in the context of DCF’s accountability systems). In the most recent iteration of the scorecards submitted in evidence, CFSR Scorecards, Tab September 30, 2012, the grading system employed is misleading, to say the least. The scorecards use letter grades to evaluate DCF’s performance on various metrics, presumably because letter grades are recognizable and easily understood signifiers of performance. But a system that awards an A+ letter grade to a level of performance falling just short of the national median,
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see, e.g., CFSR Scorecards, Tab December 31, 2011, at DCF011158648 (awarding, on the measure “C1.2: Median Time to Reunification,” an A+ for the state’s performance relative to the median), does not line up with any conventional understanding of the letter grading system or what an A+ typically signifies. While it is understandable that the Department strives to present performance data in a way that is not unduly discouraging and that makes it easy to identify areas in the most need of improvement, see Trial Tr. vol. 14, 74:7-19, 76:23-77:12, the current scorecards accomplish these goals at the expense of clarity and honesty. The potential for such a grading system to breed complacency in the Department is not a constitutional violation, nor does it shock the conscience, but it very poorly serves the foster children under the Commonwealth’s care.
In truth, financial and administrative constraints –- not the alleged mismanagement by DCF officials -- pose the greatest threat to children in the Massachusetts foster care system today. In the face of budget cuts for the 2011 fiscal year, DCF reduced the number of its regional offices, and reduced the number of management teams for the existing 29 area offices. See McClain Dep. 146:1-23. This has led to a scarcity of available foster care placements, compare Gambon Oct. Dep. 94:12-95:12 (indicating that DCF’s general goal is to maintain a
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pool of around 4000 unrestricted homes for foster care placements), with DCF Quarterly Reports, 2008-2012, Tab Q3 2012, at 62 fig.28 (showing that since 1998, the pool of unrestricted homes has consistently fallen short of 4000), staffing deficits, see, e.g., Gambon Oct. Dep. 50:9-51:7, limited training, see, e.g., DCF FY2012 Progress Report DCF007413695, and delay in achieving longstanding objectives, see, e.g., 15 Families Initiative Presentation DCF010275220-21, DCF010275224.
Notwithstanding these challenges, certain areas have been improving. For example, DCF records show that although caseload ratios continue to exceed 18:1, steady progress has been made over the past five years, even after the reduction in regional offices from six to four. Compare Caseloads Reports, Tab June 2008, at 57 (reporting that as of June 30, 2008, 1034 social workers across six regional offices and a special investigations unit had weighted workloads of over eighteen cases), with id. Tab August 2012, at 11 (reporting that as of August 31, 2012, 390 social workers across four regional offices had weighted workloads of over eighteen cases).
Upon this mixed record, this Court respectfully declines to substitute its judgment for that of duly elected Massachusetts lawmakers, who properly are endowed with the power to direct the reserves of the Commonwealth’s coffers to whatever issue of public import that they see fit. Alas, the Plaintiffs
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must face the sobering reality that in this particular instance, the pen is not quite as mighty as the purse.
The “shocks the conscience” prong of the test proves equally unavailing to the Plaintiffs; even if this Court were to have concluded that DCF practice did indeed substantially depart from professional judgment, there is little in the present record that could be said to have shocked the impressionable conscience of the Court. “The burden to show state conduct that ‘shocks the conscience’ is extremely high, requiring ‘stunning’ evidence of ‘arbitrariness and caprice’ that extends beyond ‘[m]ere violations of state law, even violations resulting from bad faith’ to ‘something more egregious and more extreme.’” J.R., 593 F.3d at 80 (alteration in original) (quoting DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005)). While the actions (or inaction) of some resident bad actors reflects poorly on DCF, clear institutional failings at the Department have not yet been proven. Cf., e.g., id. at 80-81 (holding that two social workers’ failure to perform background checks on men living in a foster home who allegedly sexually abused the plaintiffs, while perhaps a violation of state law, “d[id] not amount to inherently egregious conduct,” id. at 81); K.H., 914 F.2d at 853 (concluding that “a general practice of shuttling children among foster parents” was not enough to assign
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liability for a violation of substantive due process, id. (emphasis omitted)).
To be sure, DCF’s management of foster care has been less than stellar, and some of the circumstances in which children in DCF’s custody have been placed give the Court considerable pause. Of particular note are the harrowing accounts of the Named Plaintiffs and others in this case. But the Plaintiffs have not succeeded in showing that the deprivations complained of were felt class-wide. See, e.g., Trial Tr. vol. 2, 115:13-15 (revealing that Dr. Bellonci had reviewed only three case files in consideration of his expert report); Trial Tr. vol. 7, 84:2385:1 (revealing that Dr. Azzi-Lessing had reviewed only five case files before drafting her expert report). DCF may have failed the Named Plaintiffs, but without more, their accounts do not support a ruling that DCF’s system-wide practices shock the conscience.
D. Familial Association The Supreme Court has held that the First Amendment’s right to association, the Ninth Amendment’s reservation of unenumerated rights to the people, and the Fourteenth Amendment’s rights to due process and equal protection imply a concomitant right to familial association. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 618-20 (1984) (First Amendment); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (Ninth and
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Fourteenth Amendments). Nevertheless, “[w]hile the Supreme Court has recognized an abstract fundamental liberty interest in ‘family integrity,’ the Court has never found that interest to be absolute or unqualified.” Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) (citing Frazier v. Bailey, 957 F.2d 920, 929-30 (1st Cir. 1992)). A precise elaboration of the contours of this right in the foster case context has eluded many judges and led to a confused jurisprudence among the federal district circuits. Connor B., 771 F. Supp. 2d at 164 (collecting cases). That said, the leading inquiry centers on whether the children are provided “any meaningful contact with family members.” Id. (citing Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 296 (N.D. Ga. 2003)).
The Defendants maintain that the Plaintiffs have failed to prove that “the actions of DCF’s leadership are directly aimed at their [familial] relationships, with knowledge that the conduct will adversely affect those relationships.” Defs.’ Mem. 10. To support this proposition, the Defendants favorably cite CortesQuinones v. Jimenez-Nettleship, 842 F.2d 556, 563 (1st Cir. 1988), and D.G. v. Yarbrough, No. 08–CV–074-GKF-FHM, 2011 WL 6009628, at *16 (N.D. Okla. Dec. 1, 2011). See Defs.’ Mem. 1011. Neither of these two cases is particularly apposite, however, because their underlying rationales stem from actions that ultimately sought damages. See Cortes-Quinones, 842 F.2d at
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563-64; D.G., 2011 WL 6009628, at *16 (relying for its foundation on Griffin v. Strong, 983 F.2d 1544, 1548-49 (10th Cir. 1993), in which the plaintiffs sought damages, including punitive damages, id. at 1545). Courts have wider latitude to impose a remedy when asked to enter only injunctive relief. See K.H., 914 F.2d at 854 (surmising that “there might . . . be broader liability in an injunctive suit against [state] officials”).
Still, one must view the Plaintiffs’ familial association claim through the lens of substantive due process, as the former is derived in whole or in part from the latter. See Gonzalez v. City of Anaheim, 715 F.3d 766, 772 (9th Cir. 2013) (treating an action for familial association as a substantive due process claim requiring proof of conscience-shocking behavior); P.J. ex rel. Jensen v. Wagner, 603 F.3d 1182, 1198 (10th Cir. 2010) (exercising the court’s authority to resolve “claims regarding [the] substantive due process right to familial association”). To be sure, Massachusetts’s performance with respect to familial visitation and placement is far from excellent. See, e.g., CRC Study tbl.16 (observing that just 20.9% and 37.6% of children in the entry cohort received monthly visits from siblings and parents, respectively, for the entirety of the thirty-month review period). Compare First-Round CFSR Final Assessment CSF000000331-34 (finding Massachusetts’s efforts in kinship placements and familial connections to be in substantial
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conformity with federal law during the first-round CFSR), with Second-Round CFSR Final Report CSF-000000780-91 (finding performance on said measures to be out of step with federal mandates). Yet in light of this Court’s earlier discussion of substantive due process, see supra Part III.C, one must take into account the extenuating circumstances (i.e. budgetary constraints) that bear on DCF’s capacity to deliver high-quality care in order to determine whether the children in foster care were deprived of meaningful opportunities to see their family members. Here the Plaintiffs fail to prove there is such classwide institutional deprivation.
E. Procedural Due Process In evaluating claims for violations of procedural due process, courts are instructed to engage in a two-step analysis that requires a determination of (1) “whether there exists a liberty or property interest which has been interfered with by the State,” and if so, (2) “whether the procedures attendant upon that deprivation were constitutionally sufficient.” González-Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010) (quoting Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)) (internal quotation marks omitted). The Plaintiffs, in their complaint, claim entitlements under state law to the following four putative rights:
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a. The rights in relation to “placement of children in private families; early and periodic screening, diagnostic and treatment standards; individualized health care plan” . . .; b. The right to a “medical passport” . . .; c. The rights to sibling visitation . . .; and d. The right to be considered for placement with relatives, other adult persons who have played significant positive roles in the child’s life, and any minor siblings or half-siblings . . . . Compl. ¶ 309(a)-(d) (internal citations omitted); see also Pls.’ Opp’n 17. The Defendants deny that the Plaintiffs can enjoy such rights. Defs.’ Mem. 13. For the reasons stated with respect to the Plaintiffs’ other putative rights, see supra Part III.C, this Court endorses the Plaintiffs’ view. Notwithstanding the acknowledgement of constitutionally protected interests, the Plaintiffs have failed to establish that the Defendants acted in a constitutionally deficient manner. It may be unclear whether notice of suspended services is always provided, see, e.g., Peel Dep. 84:24-85:22, but one cannot prove the negative from an empty inference. Furthermore, once again, limited resources appear to be the properly attributable culprit, as former Commissioner McClain noted in his deposition that budget cuts contributed to overwhelming backlogs in the scheduling of fair hearings. See McClain Dep. 146:7-148:14. Finally, the data drawn from the CRC study on foster care reviews and permanency plan hearings, CRC Study
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tbls.20a & 47a, are not especially helpful because there is no comparative data available to the Court to contextualize CRC’s findings. Accordingly, the Plaintiffs have not demonstrated that a constitutional deprivation deserving redress exists.
F. Statutory Claims under the AACWA 1. Foster Care Maintenance Payments
The Plaintiffs seek relief for DCF’s failure to distribute foster care maintenance payments at USDA-recommended levels as prescribed by law. See Compl. ¶ 307; see also 42 U.S.C. § 672(a)(1); Mass. Gen. Laws ch. 119, § 23(h). Since March 2012, however, DCF’s foster care maintenance rates have been commensurate with those set by the USDA. See McClain Dep. 150:18-151:3. The Plaintiffs contend that this fact alone does not effectively moot their claim. For support, the Plaintiffs point to the Department’s long history of providing insufficient foster care maintenance payments. See Pls.’ Opp’n 15-16; see also Sept. 28 McClain Letter DCF000827080 (reporting that, for some number of years, DCF rates ranged between 17% and 24% below the USDA rates).
Generally speaking, in order to remain eligible to receive federal funds under the AACWA, a state must comply strictly with conditions attached to the receipt of those funds. California Alliance of Child & Family Servs. v. Allenby, 589 F.3d 1017, 1022 (9th Cir. 2009). Substantial compliance with said
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conditions, however, is acceptable in certain instances prescribed by federal regulation. Id. at 1022-23 (citing, e.g., 45 C.F.R. §§ 1355.39, 1356.71(c)(5)).
DCF’s past performance with respect to foster care maintenance payments failed strictly (or even substantially) to comply with the AACWA. See id. at 1021 (holding that the payment of 80% of foster care costs “runs afoul of the [AACWA’s] mandate”). The problem here, however, is that the Plaintiffs seek only prospective injunctive relief. The Court acknowledges the cash flow challenges facing foster parents and recognizes that foster care recompense payments, while providing money downstream, does little for the children who are in need of that money now. The fact remains, however, that as of March 2012, foster care maintenance rates satisfy USDA requirements. See McClain Dep. 150:18-151:9.
Notwithstanding the prospective relief sought, the Plaintiffs claim that the Department’s recent fix is inadequate, given its less-than-assured commitment to sustain foster maintenance rates at USDA levels going forward. See Pls.’ Opp’n 16; Trial Tr. vol. 15, 110:20-111:5; Trial Tr. vol. 12, 23:1517. Once again, however, the Plaintiffs fall victim to blaming the wrong party for their plight. Although DCF is statutorily obligated to set the rates for foster care maintenance payments at levels prescribed by the USDA, see Mass. Gen. Laws ch. 119, §
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23(h), the Massachusetts legislature is ultimately responsible

for appropriating the funds needed to ensure that DCF is able to

reach these goals, Trial Tr. vol. 15, 107:17-108:3. The

serendipitous nature of DCF’s receipt of $12,000,000 from the

state government to raise its foster care maintenance rates in

line with those set forth by the USDA is of no moment in this

case. It is not for this Court to speculatively cast aspersions

on the present or future intentions of state bureaucrats.

This holding ought not be read to give the Defendants a

free pass to make an end run around the requirements set forth

in the AACWA, however. Should foster care maintenance rates

fall substantially below USDA guidelines in the coming months or

years, the Plaintiffs are free to resume the pursuit of what

will be deemed by this Court to be a revived and actionable

claim. See, e.g., Conservation Law Found. v. Patrick, 767 F.

Supp. 2d 260, 261 (D. Mass. 2011).

2.

Case Plans

The Plaintiffs argue that the Defendants are neither fully

nor substantially in compliance with the case-planning

requirements established by the AACWA. Pls.’ Opp’n 16.

The results from the CRC study suggest that case plans are

generally not well maintained and, in some cases, are entirely

unavailable for review. See CRC Study tbls.28a & 55a (reporting

that 14.6% of children in the entry cohort and 35.1% of children

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in the two-year cohort were missing case plans in their case files); id. tbl.29 (reporting, with respect to the entry cohort, that 65.8% of the case plans contained child service data and that 73.9% of the case plans contained family service data); id. tbl.56 (reporting, with respect to the two-year cohort, that 31.8% of the case plans contained child service data and that 10.7% of the case plans contained family service data). Without more, however, mere gaps in record keeping hardly constitute grave statutory error, cf. Bailey v. Pacheco, 108 F. Supp. 2d 1214, 1223 (D.N.M. 2000) (observing, inter alia, that “[s]loppy record keeping skills” did not cause social worker to relinquish the trappings of presumptively valid professional judgments), particularly when viewed in the context of the financial and administrative hardships that have been discussed above, see supra Part III.C. Accordingly, the Plaintiffs’ AACWA claims founded upon DCF’s lackluster maintenance of case plans cannot survive.
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IV. CONCLUSION For the foregoing reasons, on September 30, 2013, this
Court GRANTED the Defendants’ motion for judgment on the record, ECF No. 316.
This is a dispiriting opinion to write. In alleging violations of substantive due process, the Plaintiffs set themselves to climb a virtually unscalable peak. They have failed in the ascent. Nothing is really resolved. The state defendants today avoid the litigation bullet but the stage is set for further costly litigation as all attempts at settlement have failed.
In the process, the Court may have done a disservice to the hundreds of overworked, underpaid, and underappreciated case workers and foster home providers whose dedication has never been questioned here. There is, of course, a certain aridity in marshalling the statistics necessary to sustain or refute the class-wide institutional claims made in this case.
Yet this is not a case about statistics but about children -- our children -- and this much is clear, the flaws noted herein are more about budgetary shortfalls than management myopia. We are all complicit in this financial failure.
When next you bemoan your tax burden, remember that, at that moment, somewhere in Massachusetts there is a youngster who
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has just been taken from her parents’ home.43 She is confused, inexpressibly lonely, homesick, and desperately afraid. Because of Massachusetts’ penury, her future is murkier than in most places in America.
Do you care?

WILLIAM

/s/ William G. Young
G. YOUNG DISTRICT JUDGE

43 There is no suggestion in this record that Massachusetts overreacts in taking children into foster care.
84

 
 Case: 13-2467 Document: 00116776092 Page: 1 Date Filed: 12/15/2014 Entry ID: 5873861
United States Court of Appeals
For the First Circuit
No. 13-2467
CONNOR B., by his next friend Rochelle Vigurs; ADAM S., by his next friend Denise Sullivan; CAMILA R., by her next friend Bryan Clauson; ANDRE S., by his next friend Julia Pearson; SETH T., by his next friend Susan Kramer; and RAKEEM D., by his next friend
Bryan Clauson, for themselves and those similarly situated,
Plaintiffs, Appellants,
v.
DEVAL L. PATRICK, in his capacity as Governor of the Commonwealth of Massachusetts; JOHN POLANOWICZ, in his capacity as Secretary of the Massachusetts Executive Office of Health and Human Services; and ERIN DEVENEY, in her capacity as Interim Commissioner of the Massachusetts Department of Children and Families,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before Lynch, Chief Judge, Selya and Kayatta, Circuit Judges.
Sara M. Bartosz , with whom Marcia Robinson Lowry , Rachel B. Nili, Sarah T. Russo , Children's Rights , Mary K. Ryan , Daniel J. Gleason, Jonathan D. Persky, and Nutter McClennen & Fish, LLP were on brief, for appellants.
Liza J. Tran , Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellees.
Andrew C. Glass, Stacey L. Gorman, and K&L Gates LLP, on brief for Center for Public Representation , Juvenile Law Center ,

Case: 13-2467 Document: 00116776092 Page: 2 Date Filed: 12/15/2014 Entry ID: 5873861
Massachusetts Juvenile Bar Association, National Center for Youth Law, and Youth Law Center , as amici curiae in support of plaintiffs-appellants.
December 15, 2014

Case: 13-2467 Document: 00116776092 Page: 3 Date Filed: 12/15/2014 Entry ID: 5873861

LYNCH, Chief Judge. There is a common understanding in

this case, shared by both the Commonwealth of Massachusetts and the

plaintiffs, that the Massachusetts Department of Children and

Families' (DCF) administration of the foster care system has flaws

and is in need of improvement. In some instances, these flaws have

led to horrific and heartbreaking outcomes for children.

Plaintiffs, admirably concerned about foster children,

seek to have a federal court both order and oversee improvements.

"A federal court, of course, must identify a constitutional

predicate for the imposition of any affirmative duty on a State."

Youngberg v. Romeo, 457 U.S. 307, 319 n.25 (1982). The plaintiffs

have articulated convincing moral arguments that Massachusetts

should do better. But they have not established, based on the

facts, that there have been constitutional violations as to the

class of foster children, so they are not entitled to an injunction

or federal court oversight. Improvements in the system must come

through the normal state political processes. The problems are now

for the Governor and legislature of Massachusetts to resolve.

Six children brought this class

action in federal

district court on behalf of about 8,500 children who are or will be

committed to Massachusetts foster care custody as a result of their

having suffered from abuse or neglect. These six plaintiffs did

not seek individual relief, but relief on behalf of the class.

They asserted that DCF so exposes the plaintiff class to harm or

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the risk of harm that it violates various Amendments to the United States Constitution, as well as the Adoption Assistance and Child Welfare Act of 1980 (AACWA), 42 U.S.C. §§ 670 et seq.
After the plaintiffs fully presented their evidence at trial, and after the defendants examined two further witnesses but before they put on their whole case, the district court granted judgment on the record, under Fed. R. Civ. P. 52(c), for the defendants on all claims. Connor B. ex rel. Vigursv. Patrick, 985 F. Supp. 2d 129, 138 n.10, 166 (D. Mass. 2013). The district court's careful factual findings are supported by the record, and the district court's legal conclusions contain no errors of law. We affirm the district court's decision.
I. A. Litigation
Suit1 was filed on April 15, 2010, against the Governor of Massachusetts, the Secretary of the Executive Office of Health and Human Services, and the Commissioner of DCF, in their official capacities. The defendants are alleged to have administered the foster care system in violation of the substantive and procedural
1 The plaintiffs are represented by Children's Rights, a nonprofit advocacy organization that has brought other similar cases, among others. See Connor B., 985 F. Supp. 2d at 133 n.2; see also , e.g. , DG ex rel. Stricklin v. Devaughn , 594 F.3d 1188 (10th Cir. 2010) (affirming class certification in suit against Oklahoma's foster care system); Cassie M. ex rel. Irons v. Chafee, 16 F. Supp. 3d 33 (D.R.I. 2014) (granting judgment for defendants on the record in suit against Rhode Island's foster care system).
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components of the Due Process Clause of the Fourteenth Amendment,

the constitutional right to familial association, and two rights

arising from the AACWA, all resulting in harm to foster children

while in DCF's care. Connor B.

, 985 F. Supp. 2d at 133

(summarizing allegations). The plaintiffs' complaint sought a

broad injunction preventing the defendants "from subjecting

Plaintiff Children to practices that violate their rights." They

also sought highly specific injunctive orders which are set forth

in Appendix A. These proposed orders contain subcategories,

including orders governing caseload limits, comprehensive training

programs, assessments of additional services for each child,

monitoring, visitation rights, case plans, quality assurance

systems, performance-based contract monitoring, maintenance rates,

and appointment of expert monitors. In some of these areas, the

plaintiffs sought adoption of standards from private organizations

such as the Council on Accreditation and the Child Welfare League

of America. Plaintiffs also sought their attorneys' fees, as well

as costs and expenses.2

The district court soon certified the desired class on

February 28, 2011. Connor B. ex rel. Vigursv. Patrick, 272 F.R.D.

288, 291 (D. Mass. 2011). The class consists of "all children who

2 See generally , e.g., Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542 (2010) (discussing the calculation of attorneys' fees after a consent decree in a class action by foster care children against Georgia).
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have been (or will be) placed in the custody of [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," an estimated 8,500 children. Id. at 291-92. The district court adopted an August 15, 2012, fact cutoff date for the liability determination. Connor B. , 985 F. Supp. 2d at 133 n.1. The defendants have not appealed the class certification order, so whether this class was appropriately certified is not before us. 3
After extensive discovery, trial began on January 22, 2013. Id. at 134. At the close of plaintiffs' case, on April 30, the defendants filed a motion for judgment on the record pursuant to Fed R. Civ. P. 52(c). Id.
The district court granted the defendants' motion on September 30 and issued an opinion on November 22. Seeid. at 166. It made a lengthy series of factual findings cataloging areas where DCF needs to improve. See id. at 138-56. As the district court noted, because it did not hear the defendants' complete case, its findings may have overstated matters in favor of the plaintiffs. See id. at 138 n.10. It ultimately concluded that, though "DCF's
3 On August 20, 2010, the defendants moved to dismiss, challenging both the district court's jurisdiction and the sufficiency of the plaintiffs' complaint. See Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142, 151 (D. Mass. 2011). The district court denied the defendants' motions on January 4, 2011. Id. at 172. On December 3, 2012, the defendants also moved for partial summary judgment, which the district court denied as a matter of judicial economy. Connor B., 985 F. Supp. 2d at 134.
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management of foster care has been less than stellar," the facts did not demonstrate class-wide constitutional violations, nor a violation of the AACWA, and so injunctive relief was not warranted. Id. at 162-66. This appeal followed. B. Findings
We first recount undisputed background material and findings to set the context. The history of both abused children and efforts to improve the care of children in Massachusetts foster care custody precedes the April 2010 filing of suit. In 2006, in reaction to several high-profile failures by DCF, the Massachusetts state legislature established a committee to study the state's child welfare system. That committee issued a report entitled "First, Do No Harm," which led to the enactment in July 2008 of state legislation reforming DCF's approach to children in its care. See 2008 Mass. Acts ch. 176.
In June 2007, also before this litigation was brought, a new Commissioner, Anthony "Angelo" McClain, arrived at DCF with a mandate to modernize and transform the department. In May 2008, he began development of a new strategic plan, involving a range of ideas for improvement from public and private sources. The goal was to adopt a subset of those ideas, those that were consonant with the state's context and complementary to DCF's existing programs. This planning process led to over 500 recommendations, which the Commissioner prioritized and addressed. DCF then adopted
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some of those recommendations in the 2009 strategic plan and initiated demonstrable efforts to implement them. For example, DCF has made use of caseworkers more efficient and less abrasive for families. It reduced the number of caseworkers that dealt with families at the initial screening, from three caseworkers to two, and reassigned the third caseworker's responsibilities to the other two. This meant families could reduce the number of DCF workers with whom they interacted and briefed on their situation. DCF also extended the time allotted for initial screenings, so those screenings could be more thorough and involve input from a broader variety of people. The goal of this process, as the Commissioner explained at trial, was to institute "continuous efforts to get better . . . each month, each quarter." This effort preceeded filing of this suit.
Most of the severe abuses the six named plaintiffs experienced while in DCF custody were before or during 2009. Several of the six named plaintiffs suffered instances of rape, sexual abuse, beatings, force-feeding, and maltreatment. For example, Connor B. at age six was placed in a home with a teenager known to be at risk for sexually abusing younger children and was repeatedly raped. Connor B., 985 F. Supp. 2d at 141. The teenager was removed and DCF revoked the license of the facility. Id. The district court provided a fuller description of these abuses. Id;.
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see also Connor B. , 272 F.R.D. at 291-92 (recounting the allegations of each named plaintiff from the complaint).
DCF has continued its modernization efforts since the filing of this lawsuit. For example, DCF is updating its assessment protocols for its delivery of services to focus on the child's current well-being and to yield "practical actionable information," drawing from two national clinical approaches.
It is also true that DCF took over $100 million in budget cuts over the five years following the 2008 recession. Nonetheless, after suit was brought, DCF developed a second strategic plan, for 2012-15, seeking to build on the first set of process and structural improvements and to improve the content of care.
DCF's strategic plan has also led to progress and improvements for children in DCF's care. For the years since 1997 for which federal data is available, over 98% of children in the foster care system did not suffer from any abuse or neglect. Connor B., 985 F.3d at 139-40. Of the one-to-two percent who did suffer one incident of abuse, it has become more unlikely they will suffer a second instance. In 2009, about 88% of that small percentage of children who did suffer an incident of abuse or neglect made no second supported allegation of abuse or neglect within the next year. By 2011, 92% of that one-to-two percent who had been abused once in custody did not suffer further abuse.
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DCF's strategic plan identified as a problem that it
lagged behind other states in its rate of placing children with
family ("kinship placement"). At trial, the Commissioner admitted
falling short of the state statutory standard for kinship placement.4 The reason was, in part, because the children's family
members often encountered chal lenges in the background check
process, for example due to a past criminal conviction. In
response, as part of what DCF has called the "Kin First"
initiative, DCF made it easier for family members to get background
check waivers, which helped increase the number of children in
kinship placements from 20% to between 27% and 28% over the course
of the 2009 strategic plan. The number of children in family
settings who are also in kinship placements increased to between
55% and 60% over the same time. That progress has been noted.
Massachusetts officials, including the Secretary of the Executive
Office of Health and Human Services, recognized DCF for its self-
4 By statute and regulation, Massachusetts expresses a preference for placement of children with their kin when doing so is in the best interests of the child. See Mass. Gen. Laws ch. 119, § 23(c) ("Whenever the department places a child in foster care, the department shall immediately commence a search to locate any relative of the child or other adult person who has played a significant positive role in that child's life in order to determine whether the child may appropriately be placed with that relative or person if, in the judgment of the department, that placement would be in the best interest of the child ." (emphasis added)); 110 Mass. Code. Regs. § 7.101(2) (2014) ("The Department shall consider, consistent with the best interests of the child , the following placement resources in the following order: (a) placement with a kinship family . . . ." (emphasis added)).
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directed improvement efforts in 2012 and 2013, and the federal
government selected DCF to participate with a handful of other
states in a pilot program and awarded DCF a grant to train its
stakeholders on trauma-informed practices.
Turning to additional findings from the district court's
opinion, which we do not repeat in full, they reach a wide swath of
DCF's activities.5 For example, the court found that children in
DCF custody 6 receive "relatively rare" visits from their family.
Id. at 142-43. "DCF regularly makes use of a variety of short-term
5 The plaintiffs offered evidence from studies conducted by the Children's Research Center, expert testimony, testimony of DCF officials, federal reporting, and standards established by national child welfare organizations. See Connor B. , 985 F. Supp. 2d at 136-40 & n.10.
6 A child might enter DCF custody by means of three different procedures, as relevant here, going through the state court system. First, the normal procedure to commit a child to custody requires notice, an independent investigation, a hearing, and a judicial determination that the parent is unfit by clear and convincing evidence. See Mass. Gen. Laws ch. 119, §§ 24-26; Adoption of Carlos, 596 N.E.2d 1383, 1388-90 (Mass. 1992). Second, the emergency procedure allows transfer of a child to 72-hour custody if "the court is satisfied after [someone] testifies under oath that there is reasonable cause to believe that: (i) the child is suffering from serious abuse or neglect or is in immediate danger of serious abuse or neglect; and (ii) that immediate removal of the child is necessary to protect the child. . . ." Mass. Gen. Laws ch. 119, § 24. Finally, the procedure for temporary custody pending the statutory hearing requires that a court first certify that "continuation of the child in [the child's] home is contrary to [the child's] best interests and" DCF attempted to "prevent or eliminate the need for removal from the home." Id. §§ 25, 29C. At all these proceedings, the child and the parent have the right to counsel. Id. § 29. See generally Kindregan, Jr. et al., 3 Mass. Prac., Fam. Law & Prac. § 87.1 (4th ed.) (summarizing these procedures).
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placements," which "disrupt the lives of children in care." Id.at 143. Only "between 43% and 50% of children received monthly visits from [] caseworkers," and the court acknowledged that there is "a correlation [] between the frequency of caseworker visits and favorable foster care outcomes." Id. at 146. Fewer than 20% of children receive a timely medical screening on entry into foster care. Id. at 148. Up to 35% of children lack an individualized case plan for their time in foster care, and many of the remainder have incomplete case plans. Id. at 155.
The court also found that these shortfalls are far from the whole story. Most notably, DCF has consistently and successfully protected about 99% of children in its care from maltreatment. Id. at 140 (citing data from 2006 to 2011). Though DCF lags behind other states and national metrics in (a) the number of children who suffer from maltreatment in foster care, (b) the rate of children who reenter foster care after leaving it, and (c) caseworker caseloads, DCF has improved in each of these categories. See id. at 140, 145-46, 151-52. Similarly, though DCF has been subject to federally mandated improvement plans under the Social Security Act and its regulations, see 45 C.F.R. § 1355.35, each time the state has satisfied those plans.
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II. We review the district court's findings of fact for clear error, and the governing legal issues de novo. 7 Powell v. Alexander, 391 F.3d 1, 7 (1st Cir. 2004). "An inquiry into whether current [institutional] conditions constitute an ongoing violation of a federal right comprises a mixed question of fact and law, the answer to which we review along a degree-of-deference continuum, ranging from plenary review for law-dominated questions to clear-error review for fact-dominated questions." Healey v. Spencer, 765 F.3d 65, 73-74 (1st Cir. 2014) (quoting Morales Feliciano v. Rullán, 378 F.3d 42, 52-53 (1st Cir. 2004)) (internal quotation marks omitted). Accordingly, we review "the legal labels applied to facts" more closely than we traditionally review factual findings, though "often with some deference to the district judge." Battista v. Clarke , 645 F.3d 449, 454 (1st Cir. 2011). The plaintiffs do not generally dispute the district court's factual findings. Their real dispute is with the legal conclusions that should be drawn from those findings.
7 Judgment on the record is appropriate when "a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue." Fed. R. Civ. P. 52(c); see Morales Feliciano v. Rullán , 378 F.3d 42, 59 (1st Cir. 2004). "[T]he court's task is to weigh the evidence, resolve any conflicts in it, and decide for itself in which party's favor the preponderance of the evidence lies." 9C Miller et al., Fed. Prac. & Proc. Civ. § 2573.1 (3d ed. 2014). There was no Rule 52(c) error.
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We choose to write narrowly. As Justice Souter has noted, courts should avoid, if possible, turning "fresh furrows in the 'treacherous f ield' of substantive due process." Troxel v. Granville, 530 U.S. 57, 76 (2000) (Souter, J., concurring in the judgment) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (opinion of Powell, J.)). The parties dispute the appropriate legal standard the plaintiff class has to meet to show a constitutional violation, specifically whether the plaintiffs must show that the defendants' treatment of children "shocks the conscience," see Cnty. of Sacramento v. Lewis , 523 U.S. 833, 846 (1998), or whether it suffices that they have met a different standard under Youngberg v. Romeo, 457 U.S. 307 (1982). We have no need to decide that legal question because the plaintiffs' evidence does not estab lish that even the Youngberg standard is met. Our conclusions are similarly narrow on the remaining claims.
III. A. Substantive Due Process Claim
The Due Process Clause imposes a duty on the state for the "safety and general well-being" of an individual when the state affirmatively "restrain[s] the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. , 489 U.S. 189, 200 (1989). Notably, this duty does not arise from "the [s]tate's knowledge of the
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individual's predicament or from its expressions of intent to help" the individual. Id. The parties agree on this.
Whether the state deprived an individual of "freedom to act on his own behalf," and so is subject to a correlative constitutional duty, is often described as whether a "special relationship" exists between the state and the individual. J.R.v. Gloria, 593 F.3d 73, 79 (1st Cir. 2010) (quoting Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005)) (internal quotation marks omitted). Though we have never held that such a relationship exists between the state and children in foster care, we have assumed so arguendo. See Gloria, 593 F.3d at 80. We do so again here.
The district court found that the special relationship of foster care entails a duty on the state to provide for six particular rights: (1) to a safe living environment, (2) to services necessary for the children's physical and psychological well-being, (3) to treatment and care consistent with the purpose of their entry into the foster case system, (4) to custody only for such time as is necessary, (5) to receipt of care and treatment through the exercise of accepted professional judgment, and (6) to the least restrictive placement. Connor B. , 985 F. Supp. 2d at 158-59. We need not and do not resolve whether the Constitution offers such broad positive guarantees. The defendants do not challenge the district court's holding, so we will also assume
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arguendo that these six areas constitute an appropriate framework for analysis.
The Supreme Court has explained that executive branch actors violate an individual's constitutional rights only if they engage in conduct that "shocks the conscience." Lewi,s 523 U.S. at 846; see Gloria , 593 F.3d at 79-80. In particular, Lewis makes clear that harm caused by officials' negligence categorically cannot be a Due Process violation. Lewis, 523 U.S. at 848-49.
Sixteen years before Lewis , in Youngberg , the Supreme Court found cognizable certain limited substantive due process claims by an adult involuntarily committed in a state institution for the intellectually disabled. In Youngberg , the plaintiff claimed due process rights to "safe conditions of confinement," "freedom from bodily restraints," and "training or 'habilitation.'" 457 U.S. at 309. The Court affirmed the first two as historic liberty interests. Id. at 315-16. As to the third, though the state had a duty to provide "cer tain services and care" to those involuntarily in its custody, the state also "necessarily has considerable discretion in determining the nature and scope of its responsibilities," including discretion in choosing among aspects of a problem to approach at a given time. Id. at 317. The Court found only that the state owed the plaintiff "minimally adequate or reasonable training to ensure" his other liberty interests, rather than finding an independent "g eneral constitutional right to
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training per se " or treatment that would enable the plaintiff to achieve his "maximum potential." Id. at 318-19 & n.23.
Even those established liberty interest rights were "not absolute." Id. at 320. The issue was "not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process." Id. Importantly, the Court held that "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. at 323. This is what is referred to as the Youngberg standard.
Whatever tension there is between the Youngbergstandard and the Lewis shocks-the-conscience test 8 is of no moment here. The district court found, on the facts, that neither standard was
8 The plaintiffs urge that these cases, read together, show that the Youngberg standard is the definition of conscienceshocking conduct in the context of those involuntarily committed -including both the plaintiff in Youngberg and the class here. Rejecting that argument, the district court adopted a "new, twopronged approach," requiring the plaintiffs to prove both that the defendants' conduct violated the Youngberg standard "and that such conduct shocks the conscience." Connor B., 985 F. Supp. 2d at 160 (quoting Connor B. , 771 F. Supp. 2d at 163) (internal quotation mark omitted). On appeal, the defendants vigorously defend the district court's rule.
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met. It suffices that we agree that the Youngbergstandard was not met and do not go further.9
Youngberg also requires that courts presume that the decisions of qualified professionals -- like the administrators of DCF -- are valid.10 457 U.S. at 323. Liability is appropriate only when the professionals' decision is "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person[s] responsible actually did not base the decision on such a judgment." Id. Such deference to state officials is appropriate to minimize undue "interference by the federal judiciary with the internal operations of [state] institutions," as "[i]t is not appropriate for the courts to

9 Plaintiffs also argue that the district court improperly adopted a mens rea requirement for the Youngberg test by using the term "wanton." Connor B., 985 F. Supp. 2d at 160 (construing the standard to require "the most wanton abandonment of caretaking responsibilities," rather than "mere deviance from professional norms"). We disagree. Reading the opinion as a whole, the district court did not misapprehend the correct standard, though its choice of colorful language was unfortunate. The court applied the correct Youngberg standard, focusing on objective measures of DCF's performance, not the state of mind of the actors.

10 This is not a typical Youngberg

case, in which the

plaintiffs challenge a professional's particular decision or

practice that applies to them, like the medical protocols in

Youngberg itself. See, e.g., Santana v. Collazo, 793 F.2d 41, 42

(1st Cir. 1986) (describing challenge to use of isolation at

juvenile detention facility). Nonetheless, administration of a

foster care system is a matter of professional judgment, similarly

involving specialized expertise and professional norms. Se,e e.g.,

Connor B., 985 F. Supp. 2d at 136-38 (describing the credentials

and expertise of individual professionals and institutions

appearing at trial).

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specify which of several professionally acceptable choices should have been made." Id. at 321-22 (quoting Romeo v. Youngberg , 644 F.2d 147, 178 (3d Cir. 1980) (Seitz, C.J., concurring)) (internal quotation mark omitted). As the Court explained in Lewis , "the Fourteenth Amendment is not a 'font of tort law to be superimposed upon whatever systems may already be administered by the States . . . .'" 523 U.S. at 848 (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).
We agree that the six individual plaintiff children were in fact harmed. But the plaintiffs do not ask for a determination as to whether the constitutional rights of those six were violated. This lawsuit was not framed to bring relief to the named plaintiffs, but to obtain class-wide federal injunctive relief mandating federal court oversight of the enormously complex state foster care system.
The DCF, apart from being subject to federal constitutional obligations, has duties imposed by state statutes and regulations. But violation of a state law duty is not a ground on which to award federal injunctive relief. And there is no claim that there is a constitutional infirmity in any relevant state law.
The plaintiffs have sought to take aspirational statutory, regulatory, and private standards 11 as to a variety of
11 The district court extensively discussed the regulatory structure and sources of child welfare standards in its opinion, and we refer the reader to that. SeeConnor B., 985 F. Supp. 2d at
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topics within the overall complex of foster child care and convert each of them to constitutional requirements. The district court correctly rejected that attempt, as do we.
This is not a case in which the plaintiffs have shown that the DCF has engaged in particular practices which have already caused direct harm to the entire class or even a majority of the class. Nor have the plaintiffs shown that the Youngberg standard has been met on existing conditions. The assertion also fails that the present deficiencies mean that the children are exposed to an incrementally greater risk of future harm, and harm of constitutional dimensions. That there may be deficiencies yet to be fully addressed does not establish that there has been a constitutionally cognizable increased risk of class-wide harm, much less that the Youngberg standard has been satisfied.
There are good reasons class-wide challenges to a state agency's entire set of practices for care of foster children are difficult to bring successfully. As Youngberg states, "there certainly is no reason to think judges or juries are better
136, 139-40, 142-51, 153-56. However, the federal standards were intentionally set above the performance of most states -- at the 75th percentile of states -- specifically to push states to improve against that benchmark. Id. at 139 n.13; see Title IV–E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020, 4025 (Jan. 25, 2000) (codified at 45 C.F.R. pts. 1355–1357) ("We recognize that we have set a high standard. However, we think it is attainable and that our overall approach for moving States to the standard through continuous improvement is sound.").
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qualified than appropriate professionals in" administering an institution. 457 U.S. at 322-23. Judicial review is "limit[ed]," to prevent "interference by the federal judiciary with the internal operations of these institutions." Id. at 322. The presumptive correctness of the decisions of professionals is "necessary to enable institutions of this type -- often, unfortunately, overcrowded and understaffed -- to continue to function." Id. at 324.
The plaintiff class has failed to show that the district court's findings of fact and ultimate conclusions are clearly erroneous. The bottom line of the findings is that in all but one year of the period 2006-11, more than 99% of children in DCF foster care custody were safe from abuse and neglect while in custody. Connor B. , 985 F. Supp. 2d at 140. 12 Where DCF was not able to prevent maltreatment from occurring, the court found DCF "acted reasonably when such events took place by removing the foster child from the harmful environment." Id. at 161.
The fact that a child reenters foster care again after release from custody does not establish that there has been a constitutional violation -- in fact, the best interests of the child may require it. Even using that as a metric, reentry rates for children who have previously been in foster care have dropped
12 And even in its worst year, Massachusetts missed the national standard set by the federal government by less than one percent. Connor B., 985 F. Supp. 2d at 139-40, 160-61.
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from 22.3% in 2000-01 (compared to the national standard of 8.6%) to between 15% and 16% for years between 2006 and 2011 (close to the national medians fluctuating between 11.8% and 15%). Id. at 145-46. Indeed, DCF has improved on a variety of metrics in recent years, including kinship placements, caseworker caseloads, and prevention of repeat incidence of maltreatment.13
The district court noted that placement problems could be "traced to a single root cause:" the "severe shortage in the number of foster homes." Id. at 144. It also noted that increasing the number of foster homes would not necessarily itself resolve the ongoing placement difficulties. Id. at 144-45 (explaining the need to recruit foster homes with particular characteristics, like the ability to handle certain types of behavior, to meet each child's individual needs). As the defendants observed at oral argument, insofar as DCF has fallen short of federal requirements, it has also fully implemented the attendant federally imposed improvement plans.
The court did not accept the plaintiffs' assertions that DCF officials had unconstitutionally mismanaged the system, or that DCF officials engaged in substantial departures from professional
13 While the plaintiffs view DCF's conduct through the lens of their class, DCF exercises its professional judgment to improve the system as a whole, which encompasses children far beyond the class. DCF's efforts to improve its screening process before children enter foster care custody, as discussed above, buttress the defendants' case.
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judgment, and that mismanagement had caused harm to the class. It

found the plaintiffs have not proven "institutional" failings as to

the class. Id. at 162. We agree. Having reviewed the voluminous

record, the evidence simply

does not show that DCF has

substantially departed from accepted professional judgment, much

less that it departed so substantially as to show that such

judgment was not exercised. See Youngberg , 480 U.S. at 323.

Plaintiffs also say the district court erred in not separately

analyzing the "risk of harm" as it was required to do in an

injunctive relief case. Again, we do not agree that the court

failed to conduct such an analysis.14

The district court observed that, though DCF has failed

to comport with national standards and its internal policies, such

data "do not reveal the entire picture." Connor B., 985 F. Supp.

2d at 160. DCF is actively improving, and the Due Process Clause

does not require that the defendants instantly fix all deficiencies

in the foster care system.

Plaintiffs emphasize that the defendants have allowed

some deficiencies to persist as to some problems after identifying

them. DCF has admittedly corrected other problems, and plaintiffs

do not suggest that the defendants have failed to exercise

14 We do not accept the argument that being in the bottom of a list of states, without more, provides strong evidence of a constitutional violation. Once a list is established, there is always someone at the bottom.
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professional judgment in ordering improvements over time, or in deciding which deficiencies to address first. Instead, plaintiffs characterize these improvements as no more than "preliminary" and inadequate in light of the scope of the problem. A state is not required to "choose between attacking every aspect of a problem or not attacking the problem at all." Youngberg , 457 U.S. at 317 (quoting Dandridge v. Williams , 397 U.S. 471, 486-87 (1970)) (internal quotation marks omitted).
Not only has class-wide liability not been shown, itself a needed precursor to any relief, but plaintiffs have also not met the requirements for injun ctive relief. See eBay Inc. v. MercExchange, L.L.C. , 547 U.S. 388, 391 (2006) (describing the equitable requirements for injunctive relief). To grant injunctive relief notwithstanding DCF's concrete, good faith improvements is precisely the kind of substitution of judicial judgment for professional judgment that Youngberg prohibits, especially in light of the "sensitive federalism concerns" at play in institutional reform litigation. See Horne v. Flores, 557 U.S. 433, 448 (2009) (noting in a different context that "[f]ederalism concerns are heightened" when relief would "dictat[e] state or local budget priorities").
The plaintiffs offer a final argument that the court's several mentions of budgetary constraints on DCF constitutes legal error justifying automatic reversal. They cite Watson v. City of
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Memphis, 373 U.S. 526 (1963), among other cases, for the proposition that "vindication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them." Id. at 537.
More precisely, plaintiffs say the court committed legal error by "elevating fiscal considerations to a defense in a constitutional case where fundamental rights have been shown to be violated." We need not consider that legal proposition, because the premise is not true. That is not what Judge Young did.
The district court found there were no constitutional violations. It did not find that there were violations but that they were caused and so excused by budgetary constraints. It began its conclusions of law by explaining that its role is "to adjudicate the claims before it, [] external considerations notwithstanding." Connor B. , 985 F. Supp. 2d at 158. It explicitly cited the same sentence from Watson v. City of Memphis that the plaintiffs quoted above. Id. In the substantive due process section, its discussion of "financial and administrative constraints" comes after its conclusion, based on the record, that "it is not clear that the Defendants' behavior has sunk to a level warranting injunctive relief." Id. at 160-61. Finally, the district court decided that, in light of the "mixed record," including DCF's improvements in certain areas, it "respectfully declines to substitute its judgment for that of duly elected
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Massachusetts lawmakers." Id. at 162. In the portion of the opinion dealing with payments to homes that take in foster children, the district court expressly discussed its willingness to find the defendants liable should they "fall substantially below . . . guidelines in the coming months or years," notwithstanding budgetary pressures. Id. at 165-66. The court committed no error.15 B. Other Claims
The plaintiffs' three other legal claims fail for similar reasons.
1. Familial Association The plaintiffs claim that the defendants' conduct violated their independent constitutional right to familial association. "[T]he Supreme Court has recognized an abstract fundamental liberty interest in 'family integrity' . . . ." Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) (citing Frazierv. Bailey, 957 F.2d 920, 292-30 (1st Cir. 1992) (collecting cases)). That interest typically arises in cases concerning parents' rights

15 The plaintiffs are wrong to suggest that a state's fiscal

constraints are irrelevant. In Youngberg

itself, the Court

explained that the decisions of professionals are presumptively

valid in part because such a presumption is "necessary to enable

institutions of this type -- often, unfortunately, overcrowded and

understaffed -- to continue to function." 457 U.S. at 324.

Youngberg also noted that in Parham v. J.R., 442 U.S. 584, 599-600

(1979), a procedural due process case, the balancing of an

individual's liberty interests against those of the state includes

"the fiscal and administrative burdens [which] additional

procedures would entail." Youngberg, 457 U.S. at 321.

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to decide "the care, custody, and control of their children." E.g., Troxel, 530 U.S. at 66 (2000) (plurality opinion); Hatch v. Dep't for Children, Youth, & Their Families, 274 F.3d 12, 20 (1st Cir. 2001). That parental interest is not the direct issue here, as the state courts have granted custody here to DCF, not the parents. This is not a case in which we are asked to assess a parent's challenge to the state's removal of a child from the parent's custody. Rather, the challenge here is to the adequacy of the state's efforts to maintain family contacts after it has properly removed a child.
It is also true that the Supreme Court and this court have used language expressing an interest in familial integrity, privacy, and association in broader terms than that of parents having control of their children. Se,e e.g., M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (explaining that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment" (quoting Santosky v. Kramer , 455 U.S. 745, 774 (1982) (Rehnquist, J., dissenting) (internal quotation marks omitted))); Stanley v. Illinois , 405 U.S. 645, 651 (1972) ("The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment . . . ." (citations omitted)); Parker v. Hurley , 514 F.3d 87, 102 (1st Cir. 2008) (citing M.L.B. , 519 U.S. at 116) ("The due process right of
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parental autonomy might be considered a subset of a broader substantive due process right of familial privacy."); Carter v. Lindgren, 502 F.3d 26, 30 (1st Cir. 2007) (discussing the "right to familial integrity" regarding parental custody).
The scope of this interest in familial integrity is far from clear. See Payne-Barahona v. Gonzáles , 474 F.3d 1, 3 (1st Cir. 2007) (noting that the family integrity cases "are notable for the division of views in most of the cases and for the difficulty of fitting the analyses or results into a coherent pattern"). It is clear that the interest is a limited one. In particular, it is balanced against the state's right to investigate allegations of abuse or neglect and take appropriate remedial action. SeeCarter, 502 F.3d at 30; Hatch, 274 F.3d at 20-22.
The district court found that this family integrity "right" is only "implicated when children [in custody] are denied any meaningful contact with family members." Connor B. , 771 F. Supp. 2d at 164 (rejecting the "any contact" standard as too stringent); accord Connor B., 985 F. Supp. 2d at 163. The district court also viewed this interest "through the lens of substantive due process, as the former is derived in whole or in part from the latter." Connor B. , 985 F. Supp. 2d at 163. The plaintiffs challenge neither of these characterizations, so we accept them arguendo. Indeed, it is not clear that this argument adds anything to the substantive due process claim.
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The plaintiffs' principal argument on appeal is that the

district court denied relief on this right to meaningful family

contact for children in DCF care solely due to DCF's budgetary

constraints. Not so. Viewing this right through the lens of

substantive due process, at issue is DCF's application of

professional judgment in administering the relationship between the

children in its custody and their families.

The plaintiffs argue that DCF has a affirmative

constitutional duty to facilitate parental and sibling visitation.

Even if so, the district court

found Massachusetts was in

substantial conformity with federal statutory law under the Social

Security Act based on the first round of federal assessments. Id.

at 142, 163-64. That compliance with the statute undercuts any

claim of a constitutional violation during this time period.

The plaintiffs then focus on the fact that Massachusetts

was found in need of improvement by the Children's Bureau of the

Department of Health and Human Services in its second round of

assessments, completed in 2007. Id. at 142, 163-64. Similarly,

the district court extrapolated from the plaintiffs' study of DCF

case files from 2009-10 to find that only 20.9% of children

received consistent monthly visits from siblings, and 37.6% from

parents. Id. at 142-43, 163-64. But DCF represents that it has

complied with the improvement plan derived from that federal

review, and the plaintiffs do not suggest otherwise.

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Indeed, it would be irresponsible of DCF to provide family access in certain situations. By definition, the class members are those children who have been removed from their families because a state juvenile court has reviewed testimony and determined that they suffered abuse or neglect at their parents' hands or those of the relevant supervisory adult. Connor B., 272 F.R.D. at 291; Connor B., 771 F. Supp. 2d at 150. The plaintiffs do not quantify the number of children for whom family visits are appropriate but unprovided.
DCF's approach to familial integrity is also much broader than the visitation interest pressed by the plaintiffs. DCF has made efforts to improve its initial screening protocols with the aim of improving DCF's working relationship with those families. Similarly, while the district court recognized that DCF failed to place children with siblings or near families in about a third of cases, children with siblings in foster care are often placed with at least one sibling for at least part of their time. Connor B., 985 F. Supp. 2d at 142-43.
Kinship placements, as described earlier, are a present and ongoing locus of DCF improvements. To the extent that children are not placed with their kin, it is in part because not all children have kin with whom they could properly be placed, particularly in light of the other factors (like those related to child safety) which bear on the placement decision. SeeConnor B.,
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985 F. Supp. 2d at 142 (citing 110 Mass. Code Regs. §§ 7.108, 7.113) (explaining considerations other than kinship that affect the placement choice).
The record does not show that the plaintiff class is denied any meaningful contact with their family members on a class-wide basis, nor that any purported failure on the part of DCF to facilitate familial contact is a substantial departure from accepted professional judgment. To the contrary, it shows that DCF exercised professional judgment in administering its system with reference to familial association, and the federal government has found it adequate.
2. Procedural Due Process The plaintiffs also appeal the district court's denial of their federal procedural due process claim. The plaintiffs argue that there are four protected rights as to children in custody to which procedural due process must attach. Those rights are (1) rights in relation to "placement of children in private families; early and periodic screening, diagnostic and treatment standards; individualized health care plan," (2) the right to a medical passport, (3) rights to sibling visitation, and (4) the right to be considered for placement with relatives or similar persons. Connor B., 985 F. Supp. 2d at 164. We will assume arguendo that these rights may ground a constitutional claim.
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The plaintiffs' claim is that advance written notice of DCF's intent to "deny, reduce, or terminate services" -- which is required by the state regulations governing DCF, 110 Mass. Code Regs. § 8.01(1) -- is "not uniformly and consistently provided." Another state regulation also grants children in DCF custody the right to appeal, inter alia , "the suspension, reduction, or termination of a service." 110 Mass. Code Regs. § 10.06(3). Under the relevant state law, those hearings "shall be scheduled" within 90 days. Id. § 10.10(2) (2011); see id. § 10.10(1)(2014) (using a 65-day deadline). But DCF has not met those state law requirements. Fair hearings are subject to "overwhelming backlogs" such that they are rarely held within the regulatory time frame. Connor B., 985 F. Supp. 2d at 156, 164.
Even so, the plaintiffs' evidence does not suffice to establish a violation of any federal procedural due process right. The plaintiffs do not allege that DCF's policies regarding these rights are inadequate. When DCF deviates from those policies, it is a mistake. Such mistakes under state law do not constitute a violation of federal due process, especi ally in light of the state's fair hearings. See , e.g. , San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá , 687 F.3d 465, 478-81 (1st Cir. 2012) (en banc).
Beyond that, the plaintiffs have not explained, as they must, why hearings within 90 days (or 65 days), rather than
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hearings on a longer time frame, are constitutionally required to prevent erroneous deprivations of rights, nor why enforcement of the regulatory limit they suggest instead is an appropriate burden to impose on the state. SeeMathews v. Eldridge, 424 U.S. 319, 335 (1976). Here, as in the substantive due process inquiry, we are mindful of the practical reality that imposing a series of constitutional procedural requirements on an "overcrowded and understaffed" institution consisting of individuals with "widely varying needs and problems" could prevent the institution from continuing to function. Youngberg, 457 U.S. at 324; see also id. at 321 (linking the substantive and procedural due process analyses' balance between individual interests and society's demands).
The plaintiffs respond by arguing that any delay in giving children the prophylactic protections described above can lead to irreparable harm, so the defendants should at a minimum be held to the regulatory time limit. That argument is again insufficient. The plaintiffs must explain why, in light of the Mathews balancing test, the DCF's current conduct notwithstanding the regulation is constitutionally inadequate. They have not done so.
3. Federal Statutory AACWA Claim Finally, the plaintiffs allege that the defendants failed to provide a substantial number of class members with full
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individualized case plans, as required by the AACWA.16 The AACWA, part of the Social Security Act, is a grant of federal funding for expenses associated with operating a foster care system. Connor B., 771 F. Supp. 2d at 168. In order to obtain the funding, the state must submit a plan for the operation of its foster care system and receive approval from the Secretary of Health and Human Services (HHS). Suter v. Artist M. , 503 U.S. 347, 351 (1992), superseded by statute on other grounds, 42 U.S.C. § 1320a-2. One required component of such a plan is that states must develop a case plan "for each child receiving foster care maintenance payments." Connor B. , 985 F. Supp. 2d at 155 (quoting 42 U.S.C. § 671(a)(16)) (internal quotation mark omitted). A case plan is a written document that must include the child's records and information about the plans for the child, such as the prospective placement, the services the child will receive, and the steps taken toward stability and eventual permanency. 42 U.S.C. § 675(1). The district court held, and the defendants do not contest here, that the AACWA creates a privately enforceable right. Connor B,. 771 F. Supp. 2d at 168-172 (citing Lynch v. Dukakis, 719 F.2d 504, 510-11 (1st Cir. 1983)).17
16 The plaintiffs do not appeal the district court's denial of their claim that the defendants failed to make adequate foster care maintenance payments under the AACWA. See Connor B., 985 F. Supp. 2d at 165-66.
17 The parties dispute whether DCF must strictly c omply with the AACWA, or merely substantially comply with it.
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The AACWA is also enforced by the Secretary of HHS, who is empowered to withhold federal funding if the state fails to comply substantially with the statutory requirements and fails to implement a corrective plan. Sam M. ex rel. Elliottv. Chafee, 800 F. Supp. 2d 363, 388 (D.R.I. 2011) (citing 42 U.S.C. § 1320a-2a). The Secretary has chosen not to take such action here. No one in this case wants the Secretary to cut off the roughly $60 million Massachusetts receives from HHS. See Administration for Children and Families, FY 2013 ACF Justification of Estimates for Appropriations Committee at 337 (identifying Massachusetts's actual foster care funding from FY 2011 at slightly above $60 million).
The district court denied the claim that the AACWA had been violated as to the class. That court cited evidence from the plaintiffs that the files for 14.6% of children sampled from a group entering foster care and 35.1% of children sampled from a group in foster care for two years or more lacked case plans. Connor B., 985 F. Supp. 2d at 155. Of those files that included case plans, many were incomplete. Id. at 155-56. From this evidence, the district court found that case plans "are generally not well maintained and, in some cases, are entirely unavailable for review." Id. at 166. It then concluded that these failures constituted mere "gaps in record keeping," not "grave statutory error," "particularly when viewed in the context of the financial and administrative hardships that have been discussed above." Id.
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We understand the court to have drawn a distinction, in part, between whether services were adequately provided and whether the paperwork was done.
We agree with the district court that this record does not show a class-wide failure to provide documentation in the form of individualized case plans. The district court found that between about 65% and 85% of children have individualized case plans. Id. That case plans are "not well maintained and, in some cases, . . . entirely unavailable for review," id., is not enough to prove that DCF is out of compliance with the statute vis-à-vis the class.
IV. Having carefully heard and analyzed the evidence, the district judge offered editorial comments about areas of DCF deficiency which, while not unconstitutional, nonetheless warrant attention from the legislative and executive branches. We end where we started, directing these matters to the attention of the state legislature and the Governor. The decision of the district court is affirmed. No costs are awarded. So ordered.
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Appendix A Portions of the injunctive relief requested in the complaint:
e. Order appropriate remedial relief to ensure Defendants' future compliance with their legal obligations to Plaintiff Children, including, but not limited to, the following:
i. Caseloads. DCF shall establish and implement limits on the caseloads of all case-carrying workers for children in DCF placements and private agency placements operating under contract with DCF. These caseload limits shall be based on the standards for accreditation of public child welfare agencies set by the Council on Accreditation ("COA") and the professional standards set by the Child Welfare League of America ("CWLA").
ii. Education/Training. DCF shall develop and implement educational qualifications and a mandatory comprehensive pre-service and in-service training program for caseworkers and supervisors based on standards for acceptable management of a child welfare system;
iii. Availability of Necessary Resources for the Placement of Children and Services for Children and
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Parents. An assessment shall be conducted by qualified professionals to determine the need for additional services and placements, including the need for family preservation services, foster and adoptive placements (including placements for children with disabilities or other behavioral needs), wraparound services, reunification services, independent living services, and medical, dental, and mental health services, for children in foster care throughout the state; and the time period during which these placements and services will be developed. Defendants shall take the steps necessary to develop these services and placements according to the assessment and the time frames it provides;
iv. Monitoring the Safety of Children in Placement. DCF workers shall visit all children in placement and their foster parents as frequently as set forth in the standards set by the COA and the CWLA in order to ensure that the children are safe. DCF shall also comply with the standards and processes required under Massachusetts law for the approval, screening, oversight and utilization of all placement types that house foster children;
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v. Child-Parent and Sibling Visitation. DCF shall develop and implement policies providing for adequate visitation between parents and children of those parents removed into foster care and siblings one or more of whom has been removed into foster care; Defendants shall develop and implement policies, which adequately provide for siblings being placed together in foster care and in adoptive or guardianship settings where those permanency goals are achieved;
vi. Case and Service Planning. DCF shall take necessary action to provide adequate and timely case plans and case reviews for children and adequate and timely services plans for their parents.
vii. Quality Assurance/Data. DCF shall ensure that it has a quality assurance ("QA") system consistent with the standards of the COA and CWLA that is capable of measuring the quality of services provided to children in DCF custody;
viii. Contract Monitoring and Performance-Based Monitoring. DCF shall ensure that an adequately staffed and trained contract monitoring unit is created within
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Case: 13-2467 Document: 00116776092 Page: 40 Date Filed: 12/15/2014 Entry ID: 5873861 the state's central office for purposes of overseeing and managing the purchased services of the agency; DCF shall develop and implement a performance-based contracting scheme with its private foster care providers to ensure the protection of children; ix. Foster Care Maintenance Rates. DCF shall determine and pay foster care reimbursement rates that fully meet the elements set forth in 42 U.S.C section 675(4)(A); x. Monitoring/Enforcement. The provisions of the Court order entered pursuant to Fed. R. Civ. P. 65(d) shall be monitored by a neutral expert monitor appointed by the Court. In addition, the Court shall have continuing jurisdiction to oversee compliance with that order.
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 Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 1 of 50
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:10−cv−30073−WGY

B. et al v. Patrick et al Assigned to: Judge William G. Young related Case: 3:01−cv−30199−MAP Case in other court: USCA, 13−02467 Cause: 42:1983 Civil Rights Act Plaintiff
Connor B. by his next friend, Rochelle Vigurs

Date Filed: 04/15/2010 Date Terminated: 09/30/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Daniel J. Gleason Nutter, McClennen &Fish, LLP World Trade Center West 155 Seaport Boulevard Boston, MA 02210−2699 617−439−2233 Fax: 617−310−9233 Email: dgleason@nutter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Pitman Gretter Children's Rights 330 Seventh Avenue New York, NY 10001 212−683−2210 Email: egretter@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily J. Grannon Nutter, McClennen &Fish, LLP Seaport West 155 Seaport Boulevard Boston, MA 02210−2604 617−439−2776 Email: egrannon@nutter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Russo Children's Rights 330 Seventh Avenue New York, NY 10001 212−683−2210 Email: srusso@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Elyse Polansky Children's Rights 330 Seventh Avenue New York, NY 10001 212−683−2210 Email: jpolansky@childrensrights.org TERMINATED: 06/24/2013 ATTORNEY TO BE NOTICED
Jonathan D. Persky Morgan, Brown &Joy

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 2 of 50
200 State Street 11th Floor Boston, MA 02109 617−523−6666 Email: jpersky@morganbrown.com ATTORNEY TO BE NOTICED
Kara Morrow Children's Rights 330 Seventh Avenue 4th Flr. New York, NY 10001 212−683−2210 TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED
Laurence D. Borten Children's Rights 330 Seventh Avenue, 4th Floor New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: lborten@childrensrights.org ATTORNEY TO BE NOTICED
Marcia Robinson Lowry Children's Rights 330 Seventh Avenue, 4th Floor New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: mlowry@childrensrights.org ATTORNEY TO BE NOTICED
Mary K. Ryan Nutter, McClennen &Fish, LLP World Trade Center West 155 Seaport Boulevard Boston, MA 02210−2699 617−439−2212 Fax: 617−310−9212 Email: mryan@nutter.com ATTORNEY TO BE NOTICED
Rachel Brodin Nili Children's Rights, Inc. 330 Seventh Avenue, 4th Flr. New York, NY 10001 212−683−2210 Email: rnili@childrensrights.org ATTORNEY TO BE NOTICED
Sara Michelle Bartosz Children's Rights 330 Seventh Avenue, 4th Floor New York, NY 10001 212−683−2210 Fax: 212−683−4015 Email: sbartosz@childrensrights.org ATTORNEY TO BE NOTICED
Susan Lambiase Children's Rights 330 Seventh Avenue, 4th Floor New York, NY 10001

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 3 of 50

212−683−2210 Fax: 212−683−4015 TERMINATED: 09/15/2011 ATTORNEY TO BE NOTICED

Plaintiff
Adam S. by his next friend, Denise Sullivan

represented by Daniel J. Gleason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J. Grannon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Russo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Elyse Polansky (See above for address) TERMINATED: 06/24/2013 ATTORNEY TO BE NOTICED

Jonathan D. Persky (See above for address) ATTORNEY TO BE NOTICED

Kara Morrow (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Laurence D. Borten (See above for address) ATTORNEY TO BE NOTICED

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

Mary K. Ryan (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sara Michelle Bartosz (See above for address) ATTORNEY TO BE NOTICED

Susan Lambiase (See above for address)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 4 of 50

TERMINATED: 09/15/2011 ATTORNEY TO BE NOTICED

Plaintiff
Camila R. by her next friend, Bryan Clauson

represented by Daniel J. Gleason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J. Grannon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah Russo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Elyse Polansky (See above for address) TERMINATED: 06/24/2013 ATTORNEY TO BE NOTICED

Jonathan D. Persky (See above for address) ATTORNEY TO BE NOTICED

Kara Morrow (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Laurence D. Borten (See above for address) ATTORNEY TO BE NOTICED

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

Mary K. Ryan (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sara Michelle Bartosz (See above for address) ATTORNEY TO BE NOTICED

Susan Lambiase (See above for address) TERMINATED: 09/15/2011 ATTORNEY TO BE NOTICED

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Plaintiff Andre S. by his next friend, Julia Pearson
Plaintiff Seth T. by his next friend, Susan Kramer

represented by Daniel J. Gleason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Russo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Elyse Polansky (See above for address) TERMINATED: 06/24/2013 ATTORNEY TO BE NOTICED
Jonathan D. Persky (See above for address) ATTORNEY TO BE NOTICED
Kara Morrow (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED
Laurence D. Borten (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Mary K. Ryan (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/15/2011 ATTORNEY TO BE NOTICED
represented by Daniel J. Gleason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 6 of 50

Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Russo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jessica Elyse Polansky (See above for address) TERMINATED: 06/24/2013 ATTORNEY TO BE NOTICED

Jonathan D. Persky (See above for address) ATTORNEY TO BE NOTICED

Kara Morrow (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED

Laurence D. Borten (See above for address) ATTORNEY TO BE NOTICED

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

Mary K. Ryan (See above for address) ATTORNEY TO BE NOTICED

Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED

Sara Michelle Bartosz (See above for address) ATTORNEY TO BE NOTICED

Susan Lambiase (See above for address) TERMINATED: 09/15/2011 ATTORNEY TO BE NOTICED

Plaintiff
Rakeem D. by his next friend, Bryan Clauson

represented by Daniel J. Gleason (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Emily J. Grannon

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 7 of 50
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Russo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Elyse Polansky (See above for address) TERMINATED: 06/24/2013 ATTORNEY TO BE NOTICED
Jonathan D. Persky (See above for address) ATTORNEY TO BE NOTICED
Kara Morrow (See above for address) TERMINATED: 07/09/2013 ATTORNEY TO BE NOTICED
Laurence D. Borten (See above for address) ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) ATTORNEY TO BE NOTICED
Mary K. Ryan (See above for address) ATTORNEY TO BE NOTICED
Rachel Brodin Nili (See above for address) ATTORNEY TO BE NOTICED
Sara Michelle Bartosz (See above for address) ATTORNEY TO BE NOTICED
Susan Lambiase (See above for address) TERMINATED: 09/15/2011 ATTORNEY TO BE NOTICED

V.
Defendant
Deval L. Patrick in his official capacity as Governor of the Commonwealth of Massachusetts

represented by Jeremy D. Bayless Office of Attorney General Martha Coakley One Ashburton Place Boston, MA 02108 617−963−2916 Email: jeremy.bayless@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L. Quinan , Jr. Attorney General's Office

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 8 of 50
One Ashburton Place Room 2019 Boston, MA 02108−1698 617−963−2554 Email: Robert.Quinan@ago.state.ma.us LEAD ATTORNEY
Steven H. Joseph Office of the Attorney General Martha Coakley Government Bureau / Trial Division One Ashburton Place Boston, MA 02108 617−963−2803 Email: steven.joseph@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Spector Attorney General's Office One Ashburton Place Room 2019 Boston, MA 02108−1698 617−727−2200 ext. 2076 Fax: 617−727−5785 Email: amy.spector@state.ma.us ATTORNEY TO BE NOTICED
Bryan G. Killian Massachusetts Attorney General's Office One Ashburton Place McCormack Building, 20th floor Boston, MA 02108−1598 617−727−2200 Fax: 617−727−3076 Email: bryan.killian@ago.state.ma.us ATTORNEY TO BE NOTICED
Jason B. Barshak Attorney General's Office One Ashburton Place Boston, MA 02108 617−727−2200 x 2309 Fax: 617−727−3118 Email: Jason.Barshak@ago.state.ma.us ATTORNEY TO BE NOTICED
Jeffrey T. Collins Office of the Attorney General Trial Division One Ashburton Place 18th Floor Boston, MA 02108 617−963−2312 Fax: 617−727−3076 Email: jeffrey.collins@state.ma.us ATTORNEY TO BE NOTICED
Liza J. Tran Office of the Attorney General One Ashburton Place Room 1813 Boston, MA 02108 617−727−2200 ext. 2920 Email: liza.tran@state.ma.us

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 9 of 50

ATTORNEY TO BE NOTICED

Defendant
Judyann Bigby in her official capacity as Secretary of the Massachusetts Executive Office of Health &Human Services

represented by Jeremy D. Bayless (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven H. Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Spector (See above for address) ATTORNEY TO BE NOTICED

Bryan G. Killian (See above for address) ATTORNEY TO BE NOTICED

Jason B. Barshak (See above for address) ATTORNEY TO BE NOTICED

Jeffrey T. Collins (See above for address) ATTORNEY TO BE NOTICED

Liza J. Tran (See above for address) ATTORNEY TO BE NOTICED

Robert L. Quinan , Jr. Attorney General's Office One Ashburton Place Room 2019 Boston, MA 02108−1698 617−963−2554 Fax: 617−727−5785 Email: Robert.Quinan@ago.state.ma.us ATTORNEY TO BE NOTICED

Defendant
Angelo McClain in his official capacity as Commissioner of the Massachusetts Department of Children and Families

represented by Jeremy D. Bayless (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven H. Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Spector (See above for address) ATTORNEY TO BE NOTICED

Bryan G. Killian (See above for address) ATTORNEY TO BE NOTICED

Jason B. Barshak (See above for address)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 10 of 50

ATTORNEY TO BE NOTICED

Jeffrey T. Collins (See above for address) ATTORNEY TO BE NOTICED

Liza J. Tran (See above for address) ATTORNEY TO BE NOTICED

Robert L. Quinan , Jr. Attorney General's Office One Ashburton Place Room 2019 Boston, MA 02108−1698 617−963−1698 Fax: 617−727−5785 Email: Robert.Quinan@ago.state.ma.us ATTORNEY TO BE NOTICED

Movant Jane Lyons

represented by Michael E. Aleo Lesser, Newman &Nasser, LLP 39 Main Street Northampton, MA 01060 413−584−7331 Fax: 617−482−4392 Email: aleo@lnn−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Friends of Children, Inc.

represented by Michael E. Aleo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Third Party Witness Michael S. Greenberg

represented by Michael S. Greenberg 73 State Street, Ste. 210 Springfield, MA 01103 413−746−0022 Fax: 413−747−8044 PRO SE

Third Party Witness Emilie Blattman Costello

Third Party Witness Lauren Ashley James

represented by Bethany J. Flaherty Bingham McCutchen LLP 339 Park Avenue New York, NY 10022 212−705−7339 Email: bethany.flaherty@bingham.com PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher L. Carter Morgan, Lewis &Bockius LLP One Federal Street Boston, MA 02110

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 11 of 50

617−951−8063 Email: christopher.carter@morganlewis.com ATTORNEY TO BE NOTICED

Sujata M. Tanikella Bingham McCutchen LLP 399 Park Avenue New York, NY 10022 212−705−7494 Email: sujata.tanikella@bingham.com PRO HAC VICE ATTORNEY TO BE NOTICED

Third Party Witness Judge Gail Garinger

represented by Alexander Klibaner Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−963−2239 Fax: 617−722−0184 Email: alex.klibaner@state.ma.us ATTORNEY TO BE NOTICED

Amicus
Citizens Commission on Human Rights New England

Date Filed 04/15/2010 04/15/2010 04/15/2010
04/15/2010 04/15/2010 04/15/2010

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 350, receipt number 0101−2866458 (Fee Status: Filing Fee paid), filed by Connor B., Rakeem D., Camila R., Adam S., Andre S., Seth T.. (Attachments: # 1 Civil Cover Sheet Civil Action Cover Sheet, # 2 Category Form)(Gleason, Daniel) (Attachment 1 replaced on 4/15/2010) (Finn, Mary). (Entered: 04/15/2010)
2 MOTION to Certify Class and Appointment of Class Counsel by Connor B., Rakeem D., Camila R., Adam S., Andre S., Seth T.. (Attachments: Added MOTION to Appoint of Class Counsel on 4/15/2010 (Finn, Mary). Modified on 4/15/2010 (Finn, Mary). (Entered: 04/15/2010)
3 MOTION for Leave to Appear Pro Hac Vice for admission of Marcia Robinson Lowry, Susan Lambiase, Sara Michelle Bartosz, Laurence D. Borten, and Kara Morrow Filing fee: $ 250, receipt number 0101−2866706 by Connor B., Rakeem D., Camila R., Adam S., Andre S., Seth T.. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit)(Gleason, Daniel) (Entered: 04/15/2010)
Notice of correction to docket made by Court staff. Correction: Document 2 motion to certify class and motion for Appointment of Class Counsel. corrected because: To add the relief − Motion to Appoint Class Counsel and to delete the memorandum and affidavit that were attachments and to docket them individually. (Finn, Mary) (Entered: 04/15/2010)
4 MEMORANDUM in Support re 2 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel filed by Connor B., Rakeem D., Camila R., Adam S., Andre S., Seth T.. (Attachments: # 1 Affidavit Marcia Robinson Lowry)(Finn, Mary) (Entered: 04/15/2010)
Case Assigned to Judge Michael A Ponsor. Counsel are directed to the Court's Standing Orders re: Electronic Case Filing. Consent Form mailed to counsel. (Finn, Mary) (Entered: 04/15/2010)

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04/15/2010
04/15/2010
04/15/2010 04/20/2010 04/20/2010 04/20/2010 06/21/2010 06/21/2010 06/21/2010 06/22/2010 06/22/2010
06/22/2010 06/29/2010
06/29/2010
06/30/2010
07/02/2010

Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 3 Motion for Leave to Appear Pro Hac Vice Added Marcia Robinson Lowry, Susan Lambiase, Sara Michelle Bartosz, Laurence D. Borten and Kara Morrow.. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 04/15/2010)
5 NOTICE issued to Attorney Kara Morrow, Laurence Borton, Marcia Robinson Lowry, Sara Michelle Bartosz, Susan Lambiase regarding mandatory registration and use with ECF in compliance with the Standing Order entered by Judge Ponsor and Magistrate Judge Neiman. (Finn, Mary) (Entered: 04/15/2010)
Summons Issued as to Judyann Bigby, Angelo McClain, Deval L. Patrick issued by the Court. (Finn, Mary) (Entered: 04/15/2010)
6 SUMMONS Returned Executed Deval L. Patrick served on 4/15/2010, answer due 5/6/2010. (Persky, Jonathan) (Entered: 04/20/2010)
7 SUMMONS Returned Executed Judyann Bigby served on 4/15/2010, answer due 5/6/2010. (Persky, Jonathan) (Entered: 04/20/2010)
8 SUMMONS Returned Executed Angelo McClain served on 4/15/2010, answer due 5/6/2010. (Persky, Jonathan) (Entered: 04/20/2010)
9 SUMMONS Returned Executed Deval L. Patrick served on 6/21/2010, answer due 7/12/2010. (Persky, Jonathan) (Entered: 06/21/2010)
10 SUMMONS Returned Executed Judyann Bigby served on 6/21/2010, answer due 7/12/2010. (Persky, Jonathan) (Entered: 06/21/2010)
11 SUMMONS Returned Executed Angelo McClain served on 6/21/2010, answer due 7/12/2010. (Persky, Jonathan) (Finn, Mary). (Main Document 11 replaced on 6/22/2010) (Finn, Mary). (Entered: 06/21/2010)
Reset Answer Deadlines for Angelo McClain − 7/9/2010. (Finn, Mary) (Entered: 06/22/2010)
Notice of correction to docket made by Court staff. Correction: Document 11 summons as to Deft. Angelo McClain. corrected because: Correct summons replaced with the incorrect summons. Correct summons has a service date of 6/21/2010 and the incorrect summons had a service date of 6/18/2010. Deft. Angelo McClain's answer due to be reset back to 7/12/2010. (Entered: 06/22/2010)
Set/Reset Answer Deadlines for Angelo McClain − 7/12/2010. (The prior date of 7/09/2010 that was set was incorrect due to the Deft. was served on 6/21/2010) (Finn, Mary) (Entered: 06/22/2010)
12 NOTICE of Appearance by Robert L. Quinan, Jr on behalf of Deval L. Patrick, Judyann Bigby and Angelo McClain. (Quinan, Robert) Modified on 6/30/2010 to add Judyann Bigby and Angelo McClain's names to the text. (Finn, Mary). (Entered: 06/29/2010)
13 MOTION for Extension of Time to August 20, 2010 to File Answer or Other Response to Plaintiffs' Complaint by Deval L. Patrick, Judy Ann Bigby and Angelo McClain .(Quinan, Robert) Modified on 6/30/2010 to add Judy Ann Bigby and Angelo McClain as filers. (Finn, Mary). (Entered: 06/29/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 13 Motion for Extension of Time to Answer re 1 Complaint, Judyann Bigby answer due 8/20/2010; Angelo McClain answer due 8/20/2010; Deval L. Patrick answer due 8/20/2010. (Finn, Mary) (Entered: 06/30/2010)
14 STIPULATION re 2 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel ; Stipulation Concerning Initial Rule 23 Discovery and Defendants' Time to Respond to Plaintiffs' Motion for Class Certification by All Parties, All Defendants, All Plaintiffs. (Quinan, Robert) (Entered: 07/02/2010)

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08/03/2010 08/19/2010 08/20/2010 08/20/2010 08/20/2010 08/20/2010 08/26/2010 08/31/2010 08/31/2010 09/13/2010
09/30/2010 09/30/2010 10/14/2010
10/14/2010 10/15/2010

15 STIPULATION and Proposed Order Governing the Treatment of Confidential Information by All Parties. (Quinan, Robert) (Entered: 08/03/2010)
16 NOTICE of Appearance by Amy Spector on behalf of All Defendants (Spector, Amy) (Entered: 08/19/2010)
17 MOTION to Dismiss As to the Governor by Deval L. Patrick.(Spector, Amy) (Entered: 08/20/2010)
18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) by All Defendants.(Spector, Amy) (Entered: 08/20/2010)
19 MOTION for Leave to File Excess Pages by All Defendants.(Spector, Amy) (Entered: 08/20/2010)
20 MEMORANDUM in Support re 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) filed by All Defendants. (Attachments: # 1 Exhibit A: 2007 CFSR Report, # 2 Exhibit B: Program Improvement Plan, # 3 Legal Addendum: Court Rules)(Spector, Amy) (Entered: 08/20/2010)
22 Letter/request (non−motion) from Amy Spector, A.A.G. for Purpose of Filing Table of Authorities in Connection with Memorandum of Law in Support of Motion to Dismiss. (Spector, Amy) (Entered: 08/26/2010)
23 Assented to MOTION for Extension of Time to 9/30/2010 to File Response/Reply as to 17 MOTION to Dismiss As to the Governor, 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) by All Plaintiffs.(Persky, Jonathan) (Entered: 08/31/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 23 Motion for Extension of Time to File Response/Reply re 17 MOTION to Dismiss As to the Governor, 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6). Pltfs' Responses due by 9/30/2010. (Finn, Mary) (Entered: 08/31/2010)
ELECTRONIC NOTICE Setting Hearing on Motion 17 MOTION to Dismiss As to the Governor, 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6), 19 MOTION for Leave to File Excess Pages, 2 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel : Motion Hearing set for 11/23/2010 02:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (Pelegano, Theresa) (Entered: 09/13/2010)
25 MOTION for Leave to File Excess Pages by All Plaintiffs.(Bartosz, Sara) (Entered: 09/30/2010)
26 MEMORANDUM in Opposition re 17 MOTION to Dismiss As to the Governor, 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bartosz, Sara) (Entered: 09/30/2010)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 19 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document.; granting 25 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 10/14/2010)
27 MEMORANDUM in Opposition re 17 MOTION to Dismiss As to the Governor, 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) filed by All Plaintiffs. (Bartosz, Sara) (Entered: 10/14/2010)
28 MEMORANDUM in Support re 17 MOTION to Dismiss As to the Governor, 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) (Leave to File Granted 10/14/2010) filed by All Defendants. (Attachments: # 1 Exhibit 2007 Review, # 2 Exhibit State Improvement Plan, # 3 Appendix Massachusetts Trial Court Rules, Uniform Rules for Permanency Hearings, # 4 Appendix Table of

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11/03/2010 11/04/2010
11/05/2010 11/05/2010 11/09/2010
11/10/2010
11/10/2010
11/10/2010
11/16/2010 11/16/2010 11/16/2010 11/17/2010

Authorities)(Spector, Amy) (Entered: 10/15/2010)
29 MOTION for Leave to File Reply Memorandum by All Defendants. (Attachments: # 1 Defendants' Reply Memorandum, # 2 DCF Policy #86−011)(Spector, Amy) (Entered: 11/03/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 29 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 11/04/2010)
30 Reply Memorandum in response to the Pltfs' oppositions to their 17 , &18 motions to dismiss filed by All Defendants. Reply Memorandum (Leave to File Granted on 11/4/10). (Attachments: # 1 DCF Policy # 86−011)(Spector, Amy) Modified on 11/5/2010 (Finn, Mary). (Entered: 11/05/2010)
Notice of correction to docket made by Court staff. Correction: Text of document 30 − Reply memorandum. corrected because: Text corrected to reflect the document that is being filed − a reply memorandum, not a memorandum in support. (Finn, Mary) (Entered: 11/05/2010)
31 Assented to MOTION for Leave to File Excess Pages in Response to Document No. 4, by All Defendants. (Attachments: # 1 Defendants' Opposition to Plaintiffs' Motion for Class Certification, # 2 Exhibit A to Defs' Class Cert Oppo (Walter Affidavit), # 3 Exhibit B to Defs' Class Cert Oppo (Killian Aff. w/ Pearson testimony), # 4 Exhibit C to Defs' Class Cert Oppo (Clauson depo trnscrpt excerpts), # 5 Exhibit D to Defs' Class Cert Oppo (Sullivan depo trnscrpt excerpts), # 6 Exhibit E to Defs' Class Cert Oppo (Ferreira Affidavit))(Quinan, Robert) (Entered: 11/09/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 31 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 11/10/2010)
32 Opposition re 2 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel filed by All Defendants. (Attachments: # 1 Exhibit A (Walter Affidavit), # 2 Exhibit B (Killian Affidavit with Pearson depo testimony attached), # 3 Exhibit C (Clauson depo transcript excerpts), # 4 Exhibit D (Sullivan depo transcript excerpts), # 5 Exhibit E (Ferreira Affidavit))(Quinan, Robert) (Entered: 11/10/2010)
ELECTRONIC NOTICE issued requesting courtesy copy for 32 Opposition to Motion and supporting exhibits. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by Tuesday, November 16, 2010. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Finn, Mary) (Entered: 11/10/2010)
33 MOTION to Correct 30 Memorandum in Support of Motion, (Motion to File Corrected Version of Reply Memorandum in Support of Defendants' Motion to Dismiss Complaint) by All Defendants. (Attachments: # 1 Corrected Version −− Reply Memorandum, # 2 DCF Policy # 86−011)(Spector, Amy) (Entered: 11/16/2010)
34 NOTICE of Appearance by Rachel Brodin Nili on behalf of All Plaintiffs (Nili, Rachel) (Entered: 11/16/2010)
35 MOTION for Leave to File Sur−Reply Memorandum by All Plaintiffs. (Attachments: # 1 Exhibit Sur−Reply Memorandum of Law in Opposition to Defendants' Motion to Dismiss)(Bartosz, Sara) (Entered: 11/16/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 33 Motion for leave to Correct Reply Memorandum; granting 35 Motion for Leave to File

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01/05/2011

Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Finn, Mary) (Entered: 11/17/2010)
36 REPLY to Response to 17 MOTION to Dismiss As to the Governor, 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) (Corrected Version) filed by All Defendants. (Attachments: # 1 DCF Policy # 86−011)(Spector, Amy) (Entered: 11/17/2010)
37 MOTION for Leave to File Reply in Support of Class Certification by All Plaintiffs. (Attachments: # 1 Reply Memorandum in Support of Class Certification, # 2 Affidavit of Sara Michelle Bartosz, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Bartosz, Sara) (Entered: 11/17/2010)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 37 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. COURTESY COPY OF this document and the supporting exhibits is requested to be mailed to the Clerk's Office by Friday, November 18, 2010, if possible. Please note on the document that this is a courtesy copy. (Finn, Mary) (Entered: 11/18/2010)
38 SUR−REPLY to Motion re 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) (Leave to file granted on 11/17/2010) filed by All Plaintiffs. (Bartosz, Sara) (Entered: 11/18/2010)
39 REPLY to Response to 2 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel (Leave to File Granted 11/18/10) filed by All Plaintiffs. (Persky, Jonathan) (Entered: 11/18/2010)
40 AFFIDAVIT re 39 Reply to Response to Motion of Sara Bartosz by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Persky, Jonathan) (Entered: 11/18/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A Ponsor: Motion Hearing held on 11/23/2010 re 17 MOTION to Dismiss As to the Governor filed by Deval L. Patrick, 2 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel 18 MOTION to Dismiss Under Rule 12(b)(1) and 12(b)(6) filed by All Defendants. Court takes matter under advisement. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Lowry, Ryan, Barosz, Quinan, Spector) (Pelegano, Theresa) (Entered: 11/23/2010)
41 Transcript of Motion Hearing held on November 23, 2010, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 12/28/2010. Redacted Transcript Deadline set for 1/7/2011. Release of Transcript Restriction set for 3/7/2011. (Folan, Karen) (Entered: 12/07/2010)
42 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry. (Folan, Karen) (Entered: 12/07/2010)
43 Judge Michael A Ponsor: MEMORANDUM AND ORDER entered. As follows: Defendant Patricks Motion to Dismiss (Dkt. No. 17 ) and Defendants Motion to Dismiss(Dkt No. 18 ) are hereby DENIED in their entirety. Due to time constraints, the hearing on the Motions to Dismiss left inadequate time for argument regarding Plaintiffs pending Motion for Class Certification (Dkt. No. 2). The clerk will set a date for further argument on this motion. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 01/04/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 2 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel : Motion Hearing set for 2/4/2011 09:30 AM in Hampden Courtroom before Judge Michael A

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01/07/2011 01/07/2011 01/10/2011 02/04/2011
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02/11/2011 02/11/2011 02/28/2011
02/28/2011
03/01/2011 03/24/2011 03/24/2011 03/24/2011 03/24/2011 03/30/2011

Ponsor. (Pelegano, Theresa) (Entered: 01/05/2011)
44 MOTION for Extension of Time to February 11, 2011 to File Answer by All Defendants.(Killian, Bryan) (Entered: 01/07/2011)
45 NOTICE of Appearance by Bryan G. Killian on behalf of All Defendants (Killian, Bryan) (Entered: 01/07/2011)
Judge Michael A Ponsor: ELECTRONIC ORDER entered granting 44 Motion for Extension of Time to Answer re 1 Complaint, Judyann Bigby answer due 2/11/2011; Angelo McClain answer due 2/11/2011; Deval L. Patrick answer due 2/11/2011. (Finn, Mary) (Entered: 01/10/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A Ponsor: Counsel appear for Motion Hearing held on 2/4/2011 re 2 Plaintiffs' MOTION to Certify Class and Appointment of Class Counsel. Arguments heard. Matter taken under advisement with order to issue. (Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Ryan, Bartosz, Lowry, Quinan, Spector) (Healy, Bethaney) (Entered: 02/04/2011)
46 Transcript of Motion Hearing held on February 4, 2011, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 3/4/2011. Redacted Transcript Deadline set for 3/14/2011. Release of Transcript Restriction set for 5/12/2011. (Scalfani, Deborah) (Entered: 02/11/2011)
47 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 02/11/2011)
48 ANSWER to 1 Complaint, by All Defendants.(Tran, Liza) (Entered: 02/11/2011)
49 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Plaintiffs Motion to Certify Class and Appoint Class Counsel (Dkt No. 2 ) is hereby ALLOWED. This case is now referred to Magistrate Judge Kenneth P. Neiman for a pretrial conference pursuant to Fed. R. Civ. P. 16. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 02/28/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Kenneth P. Neiman Referred for: Full Pretrial, No Dispositive Motions (ptn). Further information: for full pretrial case management, a rule 16 scheduling conference, no dispositve motions.(Lindsay, Maurice) (Entered: 02/28/2011)
50 NOTICE of Scheduling Conference ISSUED, cc:cl. Scheduling Conference set for 3/30/2011 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman; joint statement and LR 16.1 cert by 3/24/11. (Healy, Bethaney) (Entered: 03/01/2011)
51 JOINT SUBMISSION pursuant to Local Rule 16.1 by All Parties. (Attachments: # 1 Exhibit 16.1(D)(3) Cert − Connor B., # 2 Exhibit 16.1(D)(3) Cert − Adam S., # 3 Exhibit 16.1(D)(3) Cert − Camila R., # 4 Exhibit 16.1(D)(3) Cert − Andre S., # 5 Exhibit 16.1(D)(3) Cert − Rakeem D.)(Nili, Rachel) (Entered: 03/24/2011)
52 CERTIFICATION pursuant to Local Rule 16.1 . (Tran, Liza) (Entered: 03/24/2011)
53 CERTIFICATION pursuant to Local Rule 16.1 . (Tran, Liza) (Entered: 03/24/2011)
54 CERTIFICATION pursuant to Local Rule 16.1 . (Tran, Liza) (Entered: 03/24/2011)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Scheduling Conference held on 3/30/2011. Scheduling order to issue. (Court Reporter: Digital Recording.) (Stuckenbruck, John) (Entered: 03/30/2011)

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09/06/2011

55 CERTIFICATION pursuant to Local Rule 16.1 . (Borten, Laurence) (Entered: 03/30/2011)
56 CERTIFICATE OF SERVICE pursuant to LR 5.2 by All Plaintiffs re 55 Certification pursuant to Local Rule 16.1. (Borten, Laurence) (Entered: 03/30/2011)
57 NOTICE of Appearance by Jason B. Barshak on behalf of All Defendants (Barshak, Jason) (Entered: 03/30/2011)
58 NOTICE of Appearance by Liza J. Tran on behalf of All Defendants (Tran, Liza) (Entered: 03/30/2011)
59 Magistrate Judge Kenneth P. Neiman: SCHEDULING ORDER ENTERED, cc:cl. All fact discovery, including no more than 20 non−expert depos per side, compl by 3/30/12; Ps' expert discl by 5/15/12; Ds' expert discl by 6/29/12; expert depos compl by 7/31/12; Case Management Conference set for 8/3/2012 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman; Ds' S/J motion due 8/24/11; Ps' opp to Ds' motion by 9/14/12, with Ds' reply by 9/21/12; hearing on any S/J motions set for 10/10/12 at 2:00 p.m. before District Judge Michael A. Ponsor; Final Pretrial Conference set for 11/28/2012 at 2:00 PM in Hampden Courtroom before District Judge Michael A. Ponsor; Jury Trial set for 1/7/2013 at 9:00 AM in Hampden Courtroom before District Judge Michael A. Ponsor. (Healy, Bethaney) (Entered: 04/04/2011)
60 Judge Michael A. Ponsor: PROCEDURAL ORDER re pretrial/trial ENTERED, cc:cl. (Healy, Bethaney) (Entered: 04/04/2011)
61 NOTICE of Appearance by Jeffrey T. Collins on behalf of All Defendants (Collins, Jeffrey) (Entered: 05/03/2011)
62 Joint MOTION for Protective Order by Judyann Bigby, Angelo McClain, Deval L. Patrick. (Attachments: # 1 Exhibit 1− Protective Order)(Tran, Liza) (Entered: 06/16/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 62 Motion for Protective Order. Order to issue. (Neiman, Kenneth) (Entered: 06/17/2011)
63 Magistrate Judge Kenneth P. Neiman: ORDER entered. PROTECTIVE ORDER entered.(Finn, Mary) (Entered: 06/17/2011)
64 Assented to MOTION FOR ENTRY OF ORDER APPOINTING NEXT FRIENDS by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Bartosz, Sara) (Entered: 07/01/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 64 Plaintiffs' Unopposed Motion For Entry of Order Appointing Next Friends. Order to enter. (Neiman, Kenneth) (Entered: 07/05/2011)
65 Magistrate Judge Kenneth P. Neiman: ORDER Appointing Next Friend, ENTERED, cc:cl. (Healy, Bethaney) (Entered: 07/07/2011)
66 MOTION for Order to to Decertify the Plaintiff Class by All Defendants. (Quinan, Robert) Modified on 9/7/2011 to delete the memorandum that was an attachment and to docket it separately (Finn, Mary). (Entered: 09/06/2011)
67 MOTION to Stay Discovery pending ruling re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) by All Defendants. (Attachments: # 1 Affidavit of James Dehnke in Support of Defendants' Motion to Stay Class−Based Discovery Pending a Ruling on their Motion to Decertify the Plaintiff Class)(Quinan, Robert) Modified on 9/7/2011 to correct the text. (Finn, Mary). (Main Document 67 replaced on 9/7/2011 with correct signed main document) (Finn, Mary). (Entered: 09/06/2011)
68 MEMORANDUM in Support re 66 MOTION for Order to to Decertify the Plaintiff Class filed by All Defendants. (Finn, Mary) (Entered: 09/07/2011)

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69 NOTICE of Withdrawal of Appearance of Susan Lambiase filed. (Finn, Mary) (Entered: 09/15/2011)
70 MEMORANDUM in Opposition re 66 MOTION for Order to to Decertify the Plaintiff Class filed by Connor B., Rakeem D., All Plaintiffs, Camila R., Adam S., Andre S., Seth T.. (Attachments: # 1 Exhibit A)(Nili, Rachel) (Entered: 09/21/2011)
71 Opposition re 67 MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Stay Discovery filed by Connor B., Rakeem D., All Plaintiffs, Camila R., Adam S., Andre S., Seth T.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Borten, Laurence) (Entered: 09/21/2011)
ELECTRONIC NOTICE Setting Hearing on Motion 66 MOTION for Order to to Decertify the Plaintiff Class, 67 MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) : Motion Hearing set for 10/12/2011 12:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 10/03/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 10/12/2011 re 66 MOTION for Order to to Decertify the Plaintiff Class filed by All Defendants, 67 MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) MOTION to Stay re 66 MOTION for Order to to Decertify the Plaintiff Class (Stay Class−Based Discovery Pending Ruling on Motion to Decertify) filed by All Defendants. Order to issue.(Court Reporter: Alice Moran at 413−731−0086.)(Attorneys present: Gleason, Lowry,Quinan, Tran) (Pelegano, Theresa) (Entered: 10/12/2011)
72 Transcript of Motion Hearing held on October 12, 2011, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 11/8/2011. Redacted Transcript Deadline set for 11/18/2011. Release of Transcript Restriction set for 1/17/2012. (Scalfani, Deborah) (Entered: 10/18/2011)
73 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 10/18/2011)
74 MOTION for Leave to Appear Pro Hac Vice for admission of Jessica Elyse Polansky Filing fee: $ 50, receipt number 0101−3635203 by Connor B., Rakeem D., Camila R., Adam S., Andre S., Seth T.. (Attachments: # 1 Affidavit Affidavit of Jessica Elyse Polansky)(Nili, Rachel) (Entered: 10/20/2011)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 74 Motion for Leave to Appear Pro Hac Vice Added Jessica Elyse Polansky. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 10/20/2011)
75 NOTICE issued to Attorney Jessica Elyse Polansky regarding mandatory registration and use with ECF in compliance with the Standing Order entered by

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Judge Ponsor and Magistrate Judge Neiman. (Finn, Mary) (Entered: 10/20/2011)
76 MOTION for additional time to conduct depositions and MOTION to Compel by All Plaintiffs.(Borten, Laurence). Added an additional relief − MOTION for Extension of Time on 11/7/2011 due to the motion contains two reliefs. (Finn, Mary). (Entered: 11/03/2011)
77 MEMORANDUM in Support re 76 MOTION to Compel filed by All Plaintiffs. (Borten, Laurence) (Entered: 11/03/2011)
78 AFFIDAVIT of Sara M. Bartosz in Support re 76 MOTION to Compel filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Bartosz, Sara) (Entered: 11/03/2011)
79 Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Defendants Motion to Decertify the Plaintiffs Class Pursuant to Fed. R. Civ. P. 23(c), (Dkt. No. 66 ), is hereby DENIED. Defendants Motion to Stay Discovery Pending a Ruling on their Motion to Decertify the Class, (Dkt. No. 67 ), is also hereby DENIED, as moot. (Lindsay, Maurice) (Entered: 11/10/2011)
80 Opposition re 76 MOTION to Compel MOTION for Extension of Time and Request for 16.3 Case Management Conference filed by Judyann Bigby, All Defendants, Angelo McClain, Deval L. Patrick. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tran, Liza) (Entered: 11/17/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 76 Plaintiffs' Motion for Additional Time to Conduct Certain 30(b)(6) Depositions and to Compel Defendants to Designate 30(b)(6) Witnesses on Certain Topics, as follows. First, the motion is GRANTED to the extent it seeks four additional hours to depose Mary Gambon as a 30(b)(6) witness, the court finding that Plaintiffs have demonstrated good cause for extending the deposition, particularly in light of the additional topics for which she was designated (and others de−designated) shortly before the deposition. Second, the court DENIES the motion insofar as it seeks to add an additional six hours to the deposition of Ms. Roche, the court finding that the request is premature, particularly in light of the fact that her testimony may turn out to be cumulative of the testimony of Mr. Wentworth and Ms. Nisenbaum, whose depositions have not yet been taken. Third, the court GRANTS the motion insofar as it seeks to have Defendants designate a 30(b)(6) witness or witnesses for Topics 78 through 82, the court concluding that the topics as phrased are sufficiently clear about the matters to be addressed, although the parties are free to discuss the matter further; this ruling, however, is subject to the condition that the designated deponent(s) shall be made available for a total of eight hours only. Finally, the court DENIES without prejudice 80 Defendants' request for a case management conference, the court concluding that the existing schedule should be able to accommodate the remaining discovery events. So ordered. (Neiman, Kenneth) (Entered: 11/21/2011)
81 MOTION to Compel Production of Data and Case Records for Expert Review by All Plaintiffs.(Nili, Rachel). Added an additional relief − MOTION for Hearing on 11/25/2011 (Finn, Mary). (Entered: 11/23/2011)
82 MEMORANDUM in Support re 81 MOTION to Compel Production of Data and Case Records for Expert Review filed by All Plaintiffs. (Nili, Rachel) (Entered: 11/23/2011)
83 AFFIDAVIT of Sara Michelle Bartosz in Support re 81 MOTION to Compel Production of Data and Case Records for Expert Review filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Bartosz, Sara) (Entered: 11/23/2011)
ELECTRONIC NOTICE issued requesting courtesy copy for 83 Affidavit in Support of Motion and supporting exhibits. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by November 30, 2011. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Finn, Mary) (Entered: 11/23/2011)

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Remark − Courtesy copy of document 83 received and placed in the file. (Finn, Mary) (Entered: 11/29/2011)
84 Opposition re 81 MOTION to Compel Production of Data and Case Records for Expert Review MOTION for Hearing filed by All Defendants. (Tran, Liza) (Entered: 12/07/2011)
85 MOTION for Leave to File Reply Brief in Support of Motion to Compel by All Plaintiffs.(Persky, Jonathan) (Entered: 12/08/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 85 Motion for Leave to File Reply Brief. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Healy, Bethaney) (Entered: 12/08/2011)
Set/Reset Deadlines as to 81 MOTION to Compel Production of Data and Case Records for Expert Review. Replies due by 12/12/2011. (Healy, Bethaney) (Entered: 12/08/2011)
86 REPLY to Response to 81 MOTION to Compel Production of Data and Case Records for Expert Review MOTION for Hearing filed by All Plaintiffs. (Borten, Laurence) (Entered: 12/12/2011)
87 Second AFFIDAVIT of Sara Michelle Bartosz in Support re 81 MOTION to Compel Production of Data and Case Records for Expert Review MOTION for Hearing filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Bartosz, Sara) (Entered: 12/12/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 81 Plaintiffs' Motion to Compel Production of Data and Case Records for expert Review. First, the motion is ALLOWED with regard to Request No. 7, as follows: as indicated in their response, Defendants shall produce an electronic list of all children currently in DCF custody who are also members of the certified class; the list shall be unredacted in light of the parties' agreed−upon Protective Order (see Document No. 63) and shall be produced by January 6, 2012. Second, the motion is ALLOWED IN PART with regard to Request No. 8, with the provisos set forth below. In so ruling, the court finds that the requested information is neither irrelevant nor overbroad. Moreover, the court finds that the CFSR reviews are not presently an appropriate substitute −− by methodology, size or timing −− for the case record review sought by Plaintiffs. Nevertheless, the court finds that the case record review does pose a potential problem with the litigation schedule, which the court is loathe to extend; indeed the examples of discovery in similar cases, offered by Plaintiffs, indicate that such sampling could take more than the two months which Plaintiffs suggest. In addition, the court finds that the case record review will impose some additional burdens on Defendants which Plaintiffs need to address; those burdens, perhaps, can be alleviated by limiting the sample, limiting the geographical area, and/or streamlining the manner in which and the locations at which the files are produced (e.g., via on−line access). Accordingly, the parties shall immediately undertake further discussions with regard to these matters and, if unable to resolve the issues, be prepared to appear in court on January 11, 2012, at 11:30 a.m. for a hearing. It should be understood that this ruling is in no way meant to approve the case record review methodology suggested by Plaintiffs or hereafter utilized by them or to suggest, as Plaintiffs appear to, that Defendants' opportunity to comment upon and/or challenge the methodology at this time waives their right to do so in the future. As they assert in their opposition, Defendants are under no present obligation to identify flaws in the sampling process designed by Plaintiffs' expert. So ordered. (Neiman, Kenneth) (Entered: 12/22/2011)
Set/Reset Hearings: Hearing (if necessary) set for 1/11/2012 11:30 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (See endorsement of 12/22/2011 re: document 81 . (Finn, Mary) (Entered: 12/23/2011)
88 JOINT MOTION for a scheduling conf. on 1/11/2012 by All Parties.(Collins, Jeffrey) Modified on 12/27/2011 to make this document a pending motion, not a

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joint submission. (Finn, Mary). (Entered: 12/23/2011)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 88 Joint Motion insofar as it seeks to set a schedule for discovery disputes to be addressed by the court on January 11, 2012. So ordered. (Neiman, Kenneth) (Entered: 12/27/2011)
89 MOTION for Extension of Time to extend scheduling order deadlines by six months , MOTION to Modify scheduling order deadlines ( Responses due by 1/20/2012) by Judyann Bigby, All Defendants, Angelo McClain, Deval L. Patrick.(Tran, Liza) (Entered: 01/06/2012)
90 JOINT SUBMISSION pursuant to Local Rule 16.1 by Judyann Bigby, Angelo McClain, Deval L. Patrick. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Tran, Liza) (Entered: 01/06/2012)
91 JOINT SUBMISSION pursuant to Local Rule 16.1 by All Plaintiffs.(Persky, Jonathan) (Entered: 01/06/2012)
92 DECLARATION re 91 Joint submission of Sara Michelle Bartosz by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F (1 of 3), # 7 Exhibit F (2 of 3), # 8 Exhibit F (3 of 3))(Persky, Jonathan) (Entered: 01/06/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 89 Defendants' Motion for Extension of Time. See Revised Scheduling Order to be issued in accord with the schedule set forth today at the case management conference. So ordered. (Neiman, Kenneth) (Entered: 01/11/2012)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Counsel appear for Case Management Conference held on 1/11/2012. Colloquy re: status of discovery efforts. Revised Scheduling Order to issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Gleason, Bartosz, Borten, Collins, Tran) (Healy, Bethaney) (Entered: 01/12/2012)
93 Magistrate Judge Kenneth P. Neiman: REVISED SCHEDULING ORDER ENTERED, cc:cl. By 1/25/12, Ds to provide Ps with the two lists discussed at the conference; by 2/1/12, Ps shall inform Ds in writing of the sample lists Ps wish to use in their case record review; all remaining fact disc., except for the case record review, compl. by 4/30/12; Ds compl. prod. of the records for Ps' case record review (at a rate of approximately 30 per week) by 5/31/12; Ps expert discl by 7/13/12; Ds' expert discl by 8/29/12; expert depos compl by 9/28/12; case management conference set before the undersigned on 10/2/12 at 10:00 a.m. (the 8/3/12 conference is canceled); Ds' S/J motion, if any, by 10/26/12; Ps' opp to S/J motion by 11/16/12l hearing on any motion for S/J set for 11/28/12 at 2:00 p.m., at which time the court will also hold a Final Pretrial Conference before Judge Michael A. Ponsor; Jury Trial set for 1/7/2013 09:00 AM in Hampden Courtroom before Judge Michael A. Ponsor.(Healy, Bethaney) (Entered: 01/12/2012)
Set/Reset Hearings: Case Management Conference set for 10/2/2012 at 10:00 AM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 01/12/2012)
94 Transcript of Case Management Conference held on January 11, 2012, before Magistrate Judge Kenneth P. Neiman. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: None. Digital Recording transcribed by Karen Aveyard at 978−466−9383. Redaction Request due 2/24/2012. Redacted Transcript Deadline set for 3/5/2012. Release of Transcript Restriction set for 5/3/2012. (Scalfani, Deborah) (Entered: 02/03/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/03/2012)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 22 of 50

02/16/2012
02/16/2012 02/16/2012 02/16/2012 02/17/2012 02/23/2012
02/23/2012 02/23/2012 02/23/2012 02/23/2012 02/24/2012
02/24/2012 02/24/2012 02/24/2012 02/24/2012

95 Joint MOTION for Protective Order Regarding Potentially Privileged Documents by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barshak, Jason) (Additional attachment(s) added on 2/16/2012: # 1 Correct Main Document, # 2 Proposed Protective Order) (Finn, Mary). Modified on 2/16/2012 to delete the duplicate of the main document which was added as an attachment and to separate the proposed protective order from the main document and to add it as an attachment. (Finn, Mary). (Entered: 02/16/2012)
96 MOTION Addressing Defendants' Refusal to Comply with this Court's Orders and MOTION for a hearing by All Plaintiffs.(Bartosz, Sara). Added an additional relief − MOTION for Hearing on 2/17/2012 (Finn, Mary). (Entered: 02/16/2012)
97 MEMORANDUM in Support re 96 MOTION Addressing Defendants' Refusal to Comply with this Court's Orders filed by All Plaintiffs. (Bartosz, Sara) (Entered: 02/16/2012)
98 DECLARATION re 96 MOTION Addressing Defendants' Refusal to Comply with this Court's Orders by All Plaintiffs. (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)(Bartosz, Sara) (Entered: 02/16/2012)
99 CERTIFICATE OF SERVICE pursuant to LR 5.2 by All Plaintiffs re 97 Memorandum in Support of Motion . (Bartosz, Sara) (Entered: 02/17/2012)
100 Opposition re 96 MOTION Addressing Defendants' Refusal to Comply with this Court's Orders MOTION for Hearing and Conditional CROSS MOTION for Extension of Certain Deadlines, Including the Trial Date filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Collins, Jeffrey) (Entered: 02/23/2012)
101 NOTICE of Appearance by Steven H. Joseph on behalf of All Defendants (Joseph, Steven) (Entered: 02/23/2012)
102 NOTICE of Appearance by Jeremy D. Bayless on behalf of All Defendants (Bayless, Jeremy) (Entered: 02/23/2012)
103 MOTION for Leave to Appear Pro Hac Vice for admission of Elizabeth Pitman Gretter and Sarah Russo Filing fee: $ 100, receipt number 0101−3822695 by All Plaintiffs. (Attachments: # 1 Affidavit of Elizabeth Pitman Gretter, # 2 Affidavit of Sarah Russo)(Persky, Jonathan) (Entered: 02/23/2012)
104 MOTION to extend deadlines for the case record review, MOTION to Continue the trial date by All Defendants.(Finn, Mary) (Entered: 02/24/2012)
Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting 103 Motion for Leave to Appear Pro Hac Vice Added Sarah Russo and Elizabeth Pitman Gretter. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Finn, Mary) (Entered: 02/24/2012)
105 NOTICE issued to Attorney Elizabeth Pitman Gretter and Sarah Russo regarding mandatory registration and use with ECF in compliance with the Standing Order entered by Judge Ponsor and Magistrate Judge Neiman. (Finn, Mary) (Entered: 02/24/2012)
106 RESPONSE to Motion re 104 MOTION for Extension of Time to deadlines for the case record review MOTION to Continue to the trial date filed by All Plaintiffs. (Bartosz, Sara) (Entered: 02/24/2012)
107 DECLARATION re 106 Response to Motion for Extension of Time by All Plaintiffs. (Bartosz, Sara) (Entered: 02/24/2012)
108 DECLARATION re 106 Response to Motion for Extension of Time, with attachments by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Bartosz, Sara) (Entered: 02/24/2012)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 23 of 50

02/29/2012 02/29/2012 02/29/2012
03/02/2012 03/02/2012 03/02/2012 03/02/2012 03/05/2012
03/05/2012
03/09/2012 03/09/2012 03/09/2012 03/15/2012 03/15/2012

Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 95 Joint Motion for Protective Order. Order to issue. (Neiman, Kenneth) (Entered: 02/29/2012)
109 Magistrate Judge Kenneth P. Neiman: SUPPLEMENTAL PROTECTIVE ORDER regarding Potentially Privileged Documents ENTERED, cc:cl. (Healy, Bethaney) (Entered: 02/29/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered denying 96 Plaintiffs' Motion for Expedited Relief Addressing Defendants' Refusal to Comply with this Court's Orders Dated December 22, 2011, and January 11, 2012. In light of the information provided, the court cannot say that Defendants have in fact failed to comply with its previous orders. More to the point, perhaps, the court is unwilling to delay further discovery as a result of the broader definition which Plaintiffs now seek to apply to the records which Defendants have prepared to disclose. On the other hand, given that Defendants are unwilling to give Plaintiffs unfettered access to FamilyNet files for the sample children, Defendants shall hereafter be precluded from relying on such files (to the extent not produced) in opposition to Plaintiffs' expert analyses of the documents which have been produced. As a result of this ruling, the court also denies 104 Defendants' Conditional Motion for Extension of Time and to Continue. So ordered. (Neiman, Kenneth) (Entered: 02/29/2012)
110 MOTION to Compel Production of Plaintiffs' Case Record Review Tool by All Defendants.(Bayless, Jeremy) (Entered: 03/02/2012)
111 MEMORANDUM in Support re 110 MOTION to Compel Production of Plaintiffs' Case Record Review Tool filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bayless, Jeremy) (Entered: 03/02/2012)
112 MOTION to Compel Plaintiffs to Cure Deficiencies in Initial Disclosures by All Defendants.(Joseph, Steven) (Entered: 03/02/2012)
113 MEMORANDUM in Support re 112 MOTION to Compel Plaintiffs to Cure Deficiencies in Initial Disclosures filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Joseph, Steven) (Entered: 03/02/2012)
ELECTRONIC NOTICE issued requesting courtesy copy for 113 Memorandum in Support of Motion and supporting exhibits. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by March 9, 2012. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Finn, Mary) (Entered: 03/05/2012)
E−Mail Notice re docket entry# 111 originally issued on 3/2/2012 returned as undeliverable. Name of Addressee: Kara Morrow. The ECF Help Desk has contacted the law firm on record, who advised that the attorney is no longer employed by that firm. The attorneys email address has been removed from the database to prevent the return of additional undeliverable email notices. (Burgos, Sandra) (Entered: 03/05/2012)
Remark − Courtesy copy of document 113 received and placed in the file. (Finn, Mary) (Entered: 03/09/2012)
114 RESPONSE to Motion re 110 MOTION to Compel Production of Plaintiffs' Case Record Review Tool filed by All Plaintiffs. (Bartosz, Sara) (Entered: 03/09/2012)
115 DECLARATION re 114 Response to Motion to Compel Production of Plaintiffs' Case Record Review Tool by All Plaintiffs. (Bartosz, Sara) (Entered: 03/09/2012)
116 Opposition re 112 MOTION to Compel Plaintiffs to Cure Deficiencies in Initial Disclosures filed by All Plaintiffs. (Bartosz, Sara) (Entered: 03/15/2012)
117 DECLARATION re 116 Opposition to Motion to Compel Plaintiffs to Cure Deficiencies in Initial Disclosures by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Bartosz, Sara) (Entered: 03/15/2012)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 24 of 50

03/20/2012 03/21/2012 03/21/2012
03/21/2012
03/22/2012

118 Joint MOTION Enter Stipulation and Order Regarding Depositions by All Defendants, All Plaintiffs. (Attachments: # 1 Stipulation and Proposed Order)(Persky, Jonathan) (Entered: 03/20/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 118 Joint Motion To Enter Stipulation and Order Regarding Depositions. Order to enter. (Neiman, Kenneth) (Entered: 03/21/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 110 Defendants' Motion to Compel Production of Plaintiffs' Case Record Review Tool. Given the totality of circumstances, the court does not believe that production of the case record review tool, currently being utilized by Plaintiffs, is premature, as claimed in both Plaintiffs' answer to Defendants' Request No. 8 as well as Plaintiffs' present opposition (Document No. 14). Although Plaintiffs acknowledge that they will eventually provide the tool as part of their expert disclosures and although Defendants, as Plaintiffs assert, had the opportunity to participate in a joint case review, the court will order the production of the tool at this time so as to enable Defendants to duplicate the case record review, if they wish, in a timely manner. That said, however, the court−ordered production of the instrument is not intended to enable Defendants to avoid the potential consequences of the court's February 29, 2012 electronic order, i.e., that "given that Defendants are unwilling to give Plaintiffs unfettered access to FamilyNet files for the sample children, Defendants shall hereafter be precluded from relying on such files (to the extent not produced) in opposition to Plaintiffs' expert analyses of the documents which have been produced." Accordingly, to the extent Defendants wish to duplicate the case record review, that review will be confined to the documents heretofore provided to Plaintiffs for case samples examined to date and to the same scope of documents to be provided to Plaintiffs for the remaining case samples; in sum, unless otherwise agreed by Plaintiffs, Defendants shall ensure that the scope of the documents remains the same for all such samples, whether previously examined by Plaintiffs or scheduled to be examined by them in the future. To do otherwise would enable Defendants to alter the consistency of Plaintiffs' case record review, confined as it has been by the prior limits set by Defendants. So ordered. (Neiman, Kenneth) (Entered: 03/21/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part 112 Defendants' Motion to Compel Plaintiffs to Cure Deficiencies in Initial Disclosures. Although the motion comes ten months after the initial disclosures were made and although, as Plaintiffs point out, the initial disclosures were made in a good faith attempt "to list those individuals with connections to the child welfare system in the Commonwealth of Massachusetts who may provide testimony in relation to the issues raised in Plaintiffs' Complaint," it is clear to the court that in many instances the disclosures of over 600 individuals often fall short of Plaintiffs' obligations under Fed. R. Civ. P. 26(a)(1)(A)(1). Given the desire of the court to facilitate targeted discovery, given that initial disclosures by parties are meant to inform the other side as to how each disclosed individual is likely to have discoverable information that the party may use to support its claims, given the further requirement that Plaintiffs have the obligation to supplement their disclosures, whether on their own or by order of the court (see subsection (e) of the Rule), and given that Plaintiffs informed Defendants of their intent to refine the list of witnesses with the benefit of discovery, Plaintiffs shall provide greater detail with regard to the individuals listed in the following paragraphs of their initial disclosures: 1(f), 1(g), 2(f), 3(f), 3(g), 4(f), 5(f), 6(f), 6(g), 7(b) (but only as to Peter Watson and all those listed under Department of Early Education and Care), 7(c), 7(d), 7(e), 7(f), and 7(g). Plaintiffs shall comply with this order no later than April 4, 2012; if Defendants agree, Plaintiffs may accomplish such compliance, at least in part, by indicating to Plaintiffs which individuals will not be witnesses in support of Plaintiffs' claims. In addition, by April 4, 2012, Plaintiffs shall inform Defendants whether or not there are any particular witnesses with regard to the following general paragraphs in their initial disclosures: 1(a), 1(b), 1(d), 2(a), 2(b), 2(d), 2(g), 3(a), 3(b), 3(d), 4(a), 4(b), 4(c), 4(d), 4(g), 5(a), 5(b), 5(c), 5(d), 5(g), 6(a), 6(b), 6(d), 7(a), 7(h), 7(i), and 7(j). So ordered. (Entered: 03/21/2012)
119 Magistrate Judge Kenneth P. Neiman: STIPULATION AND ORDER Regarding Depositions ENTERED, cc:cl. (Healy, Bethaney) (Entered: 03/22/2012)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 25 of 50

04/12/2012 04/12/2012 04/13/2012 04/16/2012 04/16/2012 04/16/2012
04/26/2012 04/26/2012 04/26/2012 04/26/2012 04/27/2012 04/27/2012 05/01/2012 05/01/2012
05/04/2012 05/11/2012

120 MOTION to Compel Answers to Interrogatories by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Collins, Jeffrey) (Entered: 04/12/2012)
121 MOTION for Extension of Time to Move All Court Deadlines By Two Months by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Joseph, Steven) (Entered: 04/12/2012)
122 Objection by Michael S. Greenberg to Third Party Subpoena dated 4/6/2012. (Finn, Mary) (Main Document 122 replaced on 4/13/2012 with correct redacted objection) (Finn, Mary). Modified on 4/13/2012 (Finn, Mary). (Entered: 04/13/2012)
123 MOTION to Compel Defendants to Provide Access to Files for 37 Children from the Northern Region for Plaintiffs' Case Record Review by All Plaintiffs.(Nili, Rachel) (Entered: 04/16/2012)
124 MEMORANDUM in Support re 123 MOTION to Compel Defendants to Provide Access to Files for 37 Children from the Northern Region for Plaintiffs' Case Record Review filed by All Plaintiffs. (Nili, Rachel) (Entered: 04/16/2012)
125 DECLARATION re 123 MOTION to Compel Defendants to Provide Access to Files for 37 Children from the Northern Region for Plaintiffs' Case Record Review by All Plaintiffs. (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)(Bartosz, Sara) (Entered: 04/16/2012)
126 Opposition re 120 MOTION to Compel Answers to Interrogatories filed by All Plaintiffs. (Bartosz, Sara) (Entered: 04/26/2012)
127 AFFIDAVIT in Opposition re 120 MOTION to Compel Answers to Interrogatories filed by All Plaintiffs. (Bartosz, Sara) (Entered: 04/26/2012)
128 Opposition re 121 MOTION for Extension of Time to Move All Court Deadlines By Two Months filed by All Plaintiffs. (Bartosz, Sara) (Entered: 04/26/2012)
129 AFFIDAVIT of Sara M. Bartosz in Opposition re 121 MOTION for Extension of Time to Move All Court Deadlines By Two Months filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Bartosz, Sara) (Entered: 04/26/2012)
130 CERTIFICATE OF SERVICE pursuant to LR 5.2 by All Plaintiffs re 128 Opposition to Motion to Extend Court Deadlines. (Bartosz, Sara) (Entered: 04/27/2012)
131 Opposition re 123 MOTION to Compel Defendants to Provide Access to Files for 37 Children from the Northern Region for Plaintiffs' Case Record Review filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bayless, Jeremy) (Entered: 04/27/2012)
132 MOTION for Discovery Conference pursuant to Local Rule 16.3 by All Defendants.(Joseph, Steven) Modified on 5/1/2012 (Jones, Sherry). Modified on 5/1/2012 to change the relief type of the motion to MOTION for a hearing. (Finn, Mary). (Entered: 05/01/2012)
133 Defendants' Position Statement in support of 132 MOTION for Discovery pursuant to Local Rule 16.3 filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Joseph, Steven) Modified on 5/2/2012 to change the text to reflect the document that is being filed. (Finn, Mary). (Entered: 05/01/2012)
134 RESPONSE to Motion re 132 MOTION for Hearing filed by All Plaintiffs. (Bartosz, Sara) (Entered: 05/04/2012)
ELECTRONIC NOTICE Setting Hearing on 121 MOTION for Extension of Time to Move All Court Deadlines By Two Months ISSUED. Motion Hearing set for 5/17/2012 at 1:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 05/11/2012)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 26 of 50

05/11/2012 05/11/2012
05/16/2012 05/17/2012 05/17/2012 05/17/2012 05/17/2012

ELECTRONIC NOTICE Setting Hearing on 132 MOTION for Hearing ISSUED, cc:cl. Motion Hearing set for 5/17/2012 at 1:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 05/11/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 120 Defendants' Motion to Compel Answers to Interrogatories. In so ruling, the court has addressed the interrogatories in two sets, as have the parties, insofar as the answers were the same in each set. First, the motion is ALLOWED with regard to Interrogatories 2 through 21. This particular type of contention interrogatories (there are several types) is entirely proper and, Plaintiffs' arguments to the contrary, not premature. To delay, as Plaintiffs suggest, their responses to July 13, 2012, at which time they will be disclosing their experts' reports, is simply too late. Plaintiffs have sufficient information at this time to answer these "factual" contention interrogatories based on the information they have to date. See Cable &Computer Technology, Inc. v. Lockheed Saunders, Inc. 175 F.R.D. 646, 651−652 (C.D. Cal. 1997). To do otherwise would enable Plaintiffs, even in this civil rights matter, to commence suit but leave to a much later day the factual underpinnings of their allegations. Accordingly, Plaintiffs shall respond to Interrogatories 2 through 21 no later than May 25, 2012. Plaintiffs may later amend their answers with leave of court or supplement those answers as they are obligated to do under Fed. R. Civ. P. 26(e). The court, however, DENIES Defendants' motion with regard to Interrogatories 22 through 26. As drafted, these interrogatories run afoul of the work−product doctrine as explicated in Commonwealth of Massachusetts v. First National Supermarkets, Inc., 112 F.R.D. 149, 152 (D.Mass. 1986). The court will consider Defendants' request for an extension of the discovery deadline at the hearing scheduled for May 17, 2012. So ordered. (Neiman, Kenneth) (Entered: 05/11/2012)
135 STATEMENT OF COUNSEL of Sara M. Bartosz re Notice of Hearing on Motion for Discovery by All Plaintiffs. (Attachments: # 1 Exhibit A)(Bartosz, Sara) (Entered: 05/16/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 123 Plaintiffs' Motion to Compel Access to Thirty−Seven Files, at a time and place and in a manner to be determined at today's conference. So ordered. (Neiman, Kenneth) (Entered: 05/17/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting without objection 132 Defendants' Motion for a Conference, said conference to be held this day. So ordered. (Neiman, Kenneth) (Entered: 05/17/2012)
ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Counsel appear for Motion Hearing held on 5/17/2012 re 121 MOTION for Extension of Time to Move All Court Deadlines By Two Months and 120 MOTION to Compel Answers to Interrogatories filed by All Defendants. Arguments heard. Order to issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Lowry, Bartels, Borten, Gleason, Joseph, Tran) (Healy, Bethaney) (Entered: 05/17/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered, after a hearing this day, with regard to [133 and 135] the parties' position statements concerning a fact cut−off date and supplementation. Having considered the parties' respective positions, the court has determined that a fact cut−off date is appropriate and, given the revised schedule which it will issue, sets that date at August 15, 2012. Such a date is necessary so that the trial court will be able to address the parties' claims and defenses with a particular time period in mind. The cut off date, however, does not excuse the parties from thereafter supplementing the discovery produced in accord with Fed. R. Civ. P. 26(e); moreover, as agreed this day, the cut−off date does not exempt Defendants from providing Plaintiffs with their regularly generated reports. Pending trial, however, the parties shall jointly consider whether they prefer to address the liability and, if appropriate, the remedial aspects of the case in a bifurcated fashion and shall so inform the court in writing if an agreement is reached thereon. So ordered.(Neiman, Kenneth) (Entered: 05/17/2012)

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 27 of 50

05/17/2012
05/18/2012 05/22/2012

Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part, after a hearing this day, 121 Defendants' Motion for Extension of Time. In so ruling, the court finds that extensive and burdensome discovery, together with informal extensions sought and/or consented−to by the parties, requires at this juncture a more formal extension of certain time periods without significantly delaying trial. Accordingly, the following schedule shall now govern: (1) the parties shall complete their agreed−upon depositions by May 31, 2012; (2) also by that date Defendants shall produce to Plaintiffs all documents received from DCF and EOHHS custodians; (3) Defendants shall continue their production of the records for Plaintiffs' case record review (at the rate of approximately 30 per week) through May 31, 2012, except for the thirty−seven files addressed in 123 Plaintiffs' motion to compel, which files shall thereafter be produced so that Plaintiffs' review can be completed by June 12, 2012; (4) Defendants shall forthwith provide Plaintiffs with the search terms for the categorical privilege review Defendants wish to undertake; by May 25, 2012, Plaintiffs shall respond to Defendants' proposal for such review and the parties shall inform the court by June 1, 2012, if they have reached agreement with respect thereto; barring such agreemnt, Plaintiffs shall undertake an individualized review of the remaining documents and produce non−privileged documents and a priviege log by July 13, 2012; (5) Defendants shall produce to Plaintiffs the Governor's Office documents and/or a privilege log by June 1, 2012; (6) also by June 1, 2012, Defendants shall produce to Plaintiffs (a) all documents received from the Juvenile Court and (b) all documents received in response to third−party subpoenas; with respect to the latter, Defendants shall also notify Plaintiffs by that date of any problems they may have had in obtaining documents from contracted agencies, after which the parties shall jointly endeavor to resolve such problems before seeking relief from the court; (7) as ordered on May 11, 2012, Plaintiffs shall respond to Defendants' Interrogatories 2 through 21 no later than May 25, 2012; Defendants may thereafter serve further written discovery, if any, by June 15, 2012, and undertake non−expert depositions until August 15, 2012; (8) Plaintiffs shall designate and disclose information regarding their trial experts as required by FED. R. CIV. P. 26(a)(2) by August 22, 2012; (9) Defendants shall designate and disclose information regarding their trial experts as required by FED. R. CIV. P. 26(a)(2) by September 21, 2012; (10) all expert depositions shall be completed by October 19, 2012; (11) counsel shall appear for a case management conference before the undersigned on October 25, 2012, at 2:00 p.m.; the October 2, 2012 conference is hereby canceled; (12) Defendants shall file their summary judgment motion, if any, by November 21, 2012; (13) Plaintiffs' opposition to Defendants' motion shall be filed by December 12, 2012; (14) a hearing on any such motion shall take place on December 20, 2012, at 2:00 p.m. before District Judge Michael A. Ponsor; the November 28, 2012 hearing is hereby canceled; (15) at the same time, counsel shall appear for a pretrial conference; pre−trial memoranda shall be prepared in accordance with the provision of Local Rule 16.5(D) and the Procedural Order previously entered; (16) trial shall commence on January 21, 2013, at 9:00 a.m.; counsel are hereby notified, however, that the case may actually be called to trial on any day during the four weeks following. Counsel should stay in touch with Judge Ponsor's courtroom deputy, Theresa Pelegano, to confirm the actual date for trial. The court hereby takes under advisement the motion to quash originally filed in the Southern District of New York. So ordered. (Neiman, Kenneth) (Entered: 05/17/2012)
Set/Reset Hearings:( Case Management Conference set for 10/25/2012 at 2:00 PM in Hampshire Courtroom before Magistrate Judge Kenneth P. Neiman; Jury Trial set for 1/21/2013 at 9:00 AM in Hampden Courtroom before Judge Michael A. Ponsor; S/J Hearing and Final Pretrial Conference set for 12/20/2012 at 2:00 PM in Hampden Courtroom before Judge Michael A. Ponsor. Set/Reset Deadlines: Discovery to be completed by 8/15/2012; Expert Witness List due by 10/19/2012; Motions due by 11/21/2012. See Electronic Order entered 05/17/12 for additional deadlines. (Healy, Bethaney) (Entered: 05/18/2012)
136 Transcript of Motion Hearing held on May 17, 2012, before Magistrate Judge Kenneth P. Neiman. The Transcript may be purchased through Judy Bond Gonsalves at 508−984−7003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: No Reporter Used. Digital Recording transcribed by Judy Bond Gonsalves. Redaction Request due 6/12/2012. Redacted Transcript Deadline set for 6/22/2012. Release of

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 28 of 50

05/22/2012 06/01/2012 06/08/2012 06/08/2012 06/13/2012 06/13/2012 06/14/2012
06/22/2012

Transcript Restriction set for 8/20/2012. (Scalfani, Deborah) Modified on 5/25/2012 (Scalfani, Deborah). (Entered: 05/22/2012)
NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/22/2012)
137 JOINT STATEMENT of counsel Regarding Privilege Log, Supplementation of Discovery and Bifurcation. (Tran, Liza) (Entered: 06/01/2012)
138 MOTION for Sanctions by All Defendants.(Collins, Jeffrey) (Entered: 06/08/2012)
139 MEMORANDUM in Support re 138 MOTION for Sanctions filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Collins, Jeffrey) (Entered: 06/08/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered with regard to the motion to quash filed in the District Court for the Southern District of New York, which motion was transferred to this court. Although the Joint Statement of the Parties (Document No 137) does not address nor was expected to address the motion to quash, the court nevertheless requests that the parties to the motion to quash inform this court by June 15, 2012, whether that dispute remains outstanding, thereby necessitating a ruling thereon. So ordered. (Neiman, Kenneth) (Entered: 06/13/2012)
140 RESPONSE TO COURT ORDER by All Defendants . (Joseph, Steven) (Entered: 06/13/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part Children's Rights, Inc. ("CRI")'s Motion to Quash Deposition Subpoena, which motion is set forth in Document No. 1 of In re Subpoena to Children's Rights, Inc., 1:12−mc−00141−P1, a matter in the District Court for the Southern District of New York, which motion, by order of that court, was transferred to this court with the consent of the parties. The motion is ALLOWED with regard to paragraph 1 of the subpoena and so much of paragraph 2 which concerns incorporation, the court having determined that such inquiries are irrelevant to the underlying litigation. However, the motion is DENIED with regard to the remaining part of paragraph 2 and paragraph 3 of the subpoena, CRI having indicated that it has a policy arm which may have been involved in the subject matter of some of the remaining inquiries. The motion is DENIED as well with regard to paragraph 4, CRI having largely conceded the issue. Further, although the court questions the need to otherwise depose Plaintiffs' CRI counsel, if indeed such counsel are delegated to respond to the subpoena, the motion is also DENIED with regard to paragraphs 5 through 13, provided that CRI, when appropriate, may interpose claims of attorney−client privilege and, when applicable, the work−product doctrine during the course of the deposition. In so ruling, the court rejects Defendants' argument that CRI has waived any such claims, for many of the reasons set forth in CRI's memorandum. In this vein, the court also notes that on May 11, 2012, it denied that part of 120 Defendants' Motion to Compel which sought answers to interrogatories 22 through 26, which the court determined were protected by the work−product doctrine, questions which appear to parallel much of what Defendants presently seek by way of testimony in the instant subpoena. The motion is also DENIED with regard to paragraphs 14 through 16, to the extent that such inquiries concern CRI's policy advocacy, although the court does not preclude the possibility that certain of those inquiries may be met with claims of privilege or work−product during the course of the deposition. Finally, given the parties' consent to have this particular dispute handled in this District, the court directs that any issue arising with respect to the deposition be brought to its attention, even if the deposition goes forward in the Southern District of New York, as noticed. So ordered.(Neiman, Kenneth) (Entered: 06/14/2012)
141 Opposition re 138 MOTION for Sanctions filed by All Plaintiffs. (Bartosz, Sara) (Entered: 06/22/2012)

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06/22/2012 07/05/2012
07/06/2012 07/09/2012 07/18/2012 07/30/2012 08/01/2012

142 DECLARATION re 141 Opposition to Motion for Sanctions by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Bartosz, Sara) (Entered: 06/22/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered denying without prejudice 138 Defendants' Motion for Sanctions insofar as the sanctions sought are not commensurate with the extent of the Plaintiffs' failure to fully comply with the court's order of May 11, 2012, which required them to respond to interrogatories 2 through 21; while Plaintiffs' answers fall short in a variety of ways, they are neither as inadequate as Defendants claim nor as deserving of the severe sanctions which Defendants seek. Nonetheless, the court will order Plaintiffs to further supplement their answers in the manner more specifically described below. In so ruling, it should be noted, the court has been hampered somewhat by the conclusory nature of the parties' arguments and their reference to only some and, at that, different interrogatories in support of their respective arguments. Still, after reviewing the complete set of answers as best it could, the court concludes that Plaintiffs have often fallen short not only of the requirements of the Local Rules but even the more forgiving standard of review Plaintiffs proffer, namely, that a party need only provide a sufficiently detailed description of the nature of the proof that will be offered such that the other party will understand the theory of their claims and how they will be proved. Accordingly, by July 20, 2012, Plaintiffs shall amend their answers to the interrogatories as follows. First, as they have offered, Plaintiffs shall provide page citations for each of the deposition transcripts they have cited in their answers to the interrogatories. Second, Plaintiffs shall provide, where absent, (a) more specific citations to pages in the documents they list in their various answers and/or (b) a more detailed description of the supporting information than simply a reference to a document, lest they be barred from relying thereon in the future, e.g., Plaintiffs shall provide a specific reference to statistics and/or measurements within a cited report and/or a summary description of that information as regards the answer. Third, Plaintiffs shall further explain the information contained in the policy documents and regulations they cite as supporting the factual bases in their complaint. With regard to paragraphs First through Third of this ruling, the court has little doubt that this supplemental information is "pertinent," as that term is used in Local Rule 26.5(c)(8), to the propounded interrogatories. Fourth, Plaintiffs, in accord with Local Rule 26.5(c)(8)(d), shall set forth with respect to each interrogatory "any other fact which forms the basis of [Plaintiffs'] information regarding the alleged facts or conclusions referred to in the interrogatory"; Defendants may hereafter seek to bar any fact not included in a supplemental answer, but which would fairly fall within this category, should Plaintiffs seek to admit such additional fact at summary judgment or trial (Plaintiffs' assertion in paragraph 3 of their "General Statements" in answer to the interrogatories notwithstanding). It is so ordered. (Neiman, Kenneth) (Entered: 07/05/2012)
143 Assented to MOTION for Extension of Time to 7/20/2012 to Produce Non−Privileged Documents and a Privilege Log by All Defendants.(Joseph, Steven) (Entered: 07/06/2012)
144 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 143 Defendants' assented−to Motion for Extension of Time to July 20, 2012, to Produce Non−Privileged Documents. So ordered. (Neiman, Kenneth) Modified on 7/9/2012 (Finn, Mary). (Entered: 07/09/2012)
145 MOTION for Order to Allow Disclosure of Personal Data by All Defendants.(Joseph, Steven) (Entered: 07/18/2012)
146 Opposition re 145 MOTION for Order to Allow Disclosure of Personal Data filed by Emilie Blattman Costello. (Markham, Adrienne) (Main Document 146 replaced on 7/30/2012 with correct signed document) (Finn, Mary). Modified on 7/30/2012 (Finn, Mary). (Entered: 07/30/2012)
147 Emergency MOTION for Protective Order by Emilie Blattman Costello, All Defendants.(Bayless, Jeremy) (Entered: 08/01/2012)

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08/01/2012 08/01/2012 08/03/2012 08/03/2012 08/03/2012 08/07/2012
08/08/2012
08/09/2012 08/10/2012
08/13/2012 08/17/2012 08/23/2012 08/24/2012
08/24/2012

148 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Emilie Blattman Costello, All Defendants re 147 Emergency MOTION for Protective Order . (Bayless, Jeremy) (Entered: 08/01/2012)
149 MOTION for Extension of Time to File Response/Reply as to 145 MOTION for Order to Allow Disclosure of Personal Data by Lauren Ashley James.(Carter, Christopher) (Entered: 08/01/2012)
Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 147 assented−to Emergency Motion for Protective Order. Order to issue. (Neiman, Kenneth) (Entered: 08/03/2012)
150 MOTION to Quash or Modify Subpoena by Friends of Children, Inc., Jane Lyons. (Attachments: # 1 Affidavit of Jane Lyons, # 2 Affidavit of Attorney Michael Aleo)(Healy, Bethaney) (Entered: 08/03/2012)
151 Opposition re 149 MOTION for Extension of Time to File Response/Reply as to 145 MOTION for Order to Allow Disclosure of Personal Data filed by All Defendants. (Joseph, Steven) (Entered: 08/03/2012)
152 Assented to MOTION to Defer Action Pending Filing of Unopposed Emergency Motion and Proposed Order Regarding Disclosure of Personal Data re 145 MOTION for Order to Allow Disclosure of Personal Data , 149 MOTION for Extension of Time to File Response/Reply as to 145 MOTION for Order to Allow Disclosure of Personal Data by Lauren Ashley James.(Carter, Christopher) (Entered: 08/07/2012)
153 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 152 Third −Party Witness's assented−to Motion to Defer Action and, accordingly, reserving ruling on 145 Defendants' Motion to Order Disclosure of Personal Data and 149 Third−Party's Motion for Extension of Time to File Response/Reply. So ordered. (Neiman, Kenneth) (Entered: 08/08/2012)
154 Emergency MOTION for Protective Order by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order)(Joseph, Steven) (Entered: 08/09/2012)
155 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 154 Unopposed Emergency Motion for Protective Order and, accordingly, withdrawing 145 Motion for Order, 149 Motion for Extension of Time to File Response/Reply, and 151 Opposition. Further order to issue. (Neiman, Kenneth) (Entered: 08/10/2012)
156 Magistrate Judge Kenneth P. Neiman: ORDER regarding Disclosure of Personal Data ENTERED, cc:cl. (Healy, Bethaney) (Main Document 156 replaced on 8/13/2012 with the correct main document) (Finn, Mary). Modified on 8/13/2012 (Finn, Mary). (Entered: 08/13/2012)
157 Opposition re 150 MOTION to Quash or Modify Subpoena filed by All Defendants. (Attachments: # 1 Exhibit A (1 of 3), # 2 Exhibit A (2 of 3), # 3 Exhibit A (3 of 3))(Joseph, Steven) (Entered: 08/17/2012)
158 150 MOTION to Quash referred to Magistrate Judge Jennifer C. Boal. (Healy, Bethaney) (Entered: 08/23/2012)
159 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered, as a result of the telephone conference this day with counsel, acknowledging the parties' representation in their Joint Statement (Document No. 137) with regard to bifurcation and hereby ordering that the summary judgment motions, if any, and the trial, if necessary, shall address −− in accord with the court's revised schedule (see electronic order of May 17, 2012) −− the issues of liability only. Once the issues of liability are resolved, the parties, if necessary, shall meet and confer so as to propose protocols addressing supplemental discovery for a remedy trial. Further, the October 25, 2012 case management conference is canceled with the consent of the parties. So ordered. (Neiman, Kenneth) (Entered: 08/24/2012)
160 Unopposed MOTION for Extension of Time to Complete Discovery Depositions of ACF and Emilie Blattman Costello by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Joseph, Steven) Modified on 8/24/2012 to add the

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08/27/2012 08/28/2012 09/07/2012
09/07/2012 09/07/2012 09/18/2012 09/18/2012 09/18/2012 09/21/2012 09/26/2012 09/26/2012

word Unopposed to the text. (Finn, Mary). (Entered: 08/24/2012)
161 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 160 Defendants' unopposed Motion for Extension of Time. So ordered. (Neiman, Kenneth) (Entered: 08/27/2012)
162 ELECTRONIC NOTICE Setting Hearing on Motion 150 MOTION to Quash : A Motion Hearing is set for 9/7/2012 at 11:00 AM in Courtroom 14 before Magistrate Judge Jennifer C. Boal. If parties desire to appear by phone they should email Steve York at (steve_york@mad.uscourts.gov) by the close of business on 9/6/2012, with a number you can be reached at for the hearing. (York, Steve) (Entered: 08/28/2012)
163 ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Jennifer C. Boal: Motion Hearing held on 9/7/2012 re 150 MOTION to Quash filed by Friends of Children, Inc., Jane Lyons. The court heard arguments from all parties and made the following ruling."The motion to quash is denied in part and allowed in part as follows: (1) the depositions of Friends of Children and Jane Lyons will take place at a mutually agreeable date in September; (2) defendants may schedule one separate date for each of the depositions but will make every attempt to complete both depositions in a single day; (3) the depositions will take place at the offices of the Massachusetts Attorney General in Springfield, Massachusetts; and (4) Friends of Children and Lyons' request for attorneys' fees and costs incurred in bringing the motion to quash is denied." (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.)(Attorneys present: Persky &Borten for Plaintiff; Joseph for Defendant; Aleo for Movant;) (York, Steve) (Entered: 09/07/2012)
164 MOTION for Extension of Time to Complete Expert Discovery by November 19, 2012 and Extend All Post−Expert Discovery Deadlines by All Defendants.(Collins, Jeffrey) (Entered: 09/07/2012)
165 MEMORANDUM in Support re 164 MOTION for Extension of Time to Complete Expert Discovery by November 19, 2012 and Extend All Post−Expert Discovery Deadlines filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Collins, Jeffrey) (Entered: 09/07/2012)
166 Opposition re 164 MOTION for Extension of Time to Complete Expert Discovery by November 19, 2012 and Extend All Post−Expert Discovery Deadlines filed by All Plaintiffs. (Borten, Laurence) (Entered: 09/18/2012)
167 DECLARATION re 166 Opposition to Motion for 31−Day Extension of Certain Expert Discovery Deadlines and 21−Day Extension of all Post−Expert Discovery Deadlines by All Plaintiffs. (Attachments: # 1 Exhibit A)(Borten, Laurence) (Entered: 09/18/2012)
168 DECLARATION re 166 Opposition to Motion For 31−Day Extension of Certain Expert Discovery Deadlines and 21−Day Extension of all Post−Expert Discovery Deadlines by All Plaintiffs. (Attachments: # 1 Exhibit A)(Bartosz, Sara) (Entered: 09/18/2012)
169 Emergency MEMORANDUM in Support re 164 MOTION for Extension of Time to Complete Expert Discovery by November 19, 2012 and Extend All Post−Expert Discovery Deadlines filed by All Defendants. (Barshak, Jason) (Entered: 09/21/2012)
170 RESPONSE to Motion re 169 EMERGENCY MEMORANDUM in Support of 164 MOTION for Extension of Time to Complete Expert Discovery by November 19, 2012 and Extend All Post−Expert Discovery Deadlines filed by All Plaintiffs. (Bartosz, Sara) Modified on 9/27/2012 to link to document 169 , not 164 . (Finn, Mary). (Entered: 09/26/2012)
171 DECLARATION re 170 Response to Motion for 31−Day Extension of Certain Expert Discovery Deadlines and 21−Day Extension of all Post−Expert Discovery Deadlines by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bartosz, Sara) (Entered: 09/26/2012)

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09/27/2012 10/01/2012
10/04/2012 10/05/2012 10/10/2012
10/10/2012 10/10/2012
10/18/2012 10/19/2012 10/22/2012 10/24/2012 10/24/2012 10/24/2012

172 REPLY to 170 Response to Defts' 169 EMERGENCY Suppl. Memorandum in support of 164 MOTION for Extension of Time to Complete Expert Discovery by November 19, 2012 and Extend All Post−Expert Discovery Deadlines filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Collins, Jeffrey) Modified on 9/27/2012 to link to document 170 . (Finn, Mary). (Entered: 09/27/2012)
173 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 164 Defendants' Motion for Extension of Time, as follows. First, Defendants' experts and their reports shall be disclosed by October 12, 2012, except those experts who will be addressing the CRC case record review reports, who shall be disclosed, etc. by October 19, 2012. Second, all expert depositions shall be completed by November 2, 2012, except the case record review experts who shall be deposed, if at all, by November 9, 2012. In all other respects, Defendants' motion is denied. So ordered. (Neiman, Kenneth) (Entered: 10/01/2012)
174 Joint MOTION Requesting a Telephone Conference Regarding the Deadlines for the Parties' Motions in Limine by Judyann Bigby, Angelo McClain, Deval L. Patrick.(Tran, Liza) (Entered: 10/04/2012)
176 ELECTRONIC NOTICE of Hearing. Telephone Conference set for 10/10/2012 10:00 AM before Magistrate Judge Kenneth P. Neiman. (Stuckenbruck, John) (Entered: 10/05/2012)
177 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered, in accord with the parties' agreement this day during the telephone conference, supplementing the existing schedule as follows: all motions in limine and Daubert motions shall be filed by December 3, 2012, with oppositions due by December 17, 2012, it being understood that the court (at the pretrial conference on December 20, 2012) will schedule a hearing on the motions in anticipation of the trial now set for January 21, 2013 (or during the four weeks following). In proposing this schedule, Defendants represented that any summary judgment motion they pursue would not entail any Daubert expert issues. So ordered. (Neiman, Kenneth) (Entered: 10/10/2012)
178 Set Deadlines/Hearings: All motions in limine and Daubert motions due by 12/3/2012. Responses due by 12/17/2012. (Finn, Mary) (Entered: 10/10/2012)
179 ELECTRONIC Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman: Counsel appear for Telephone Conference held on 10/10/2012. Colloquy re: status of case and current schedule. Order to issue. (Court Reporter: Digital Recording − For transcripts or CDs contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.) (Healy, Bethaney) (Entered: 10/11/2012)
180 MOTION to Change Venue by All Defendants.(Collins, Jeffrey) (Entered: 10/18/2012)
181 Assented to MOTION for Discovery Regarding Expert Depositions by All Defendants. (Attachments: # 1 Exhibit Stipulation)(Bayless, Jeremy) (Entered: 10/19/2012)
182 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 181 assented−to Motion to Enter Stipulation and Order Regarding Expert Depositions. So ordered. (Neiman, Kenneth) (Entered: 10/22/2012)
183 MOTION to Compel Production of Structured Interview Materials by Defendants' Expert Witness Jerry Milner by All Plaintiffs.(Bartosz, Sara) (Entered: 10/24/2012)
184 MEMORANDUM in Support re 183 MOTION to Compel Production of Structured Interview Materials by Defendants' Expert Witness Jerry Milner filed by All Plaintiffs. (Bartosz, Sara) (Entered: 10/24/2012)
185 DECLARATION re 183 MOTION to Compel Production of Structured Interview Materials by Defendants' Expert Witness Jerry Milner by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Bartosz, Sara) (Entered: 10/24/2012)

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11/01/2012 11/02/2012 11/05/2012 11/05/2012 11/06/2012 11/07/2012 11/08/2012
11/08/2012 11/09/2012 11/09/2012 11/13/2012

186 Opposition re 180 MOTION to Change Venue filed by All Plaintiffs. (Bartosz, Sara) (Entered: 11/01/2012)
187 MOTION for Leave to File Reply Brief by All Defendants. (Attachments: # 1 Exhibit A)(Bayless, Jeremy) (Entered: 11/02/2012)
188 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 187 Motion for Leave to File Reply. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. So ordered. (Neiman, Kenneth) (Entered: 11/05/2012)
189 REPLY to Response to 180 MOTION to Change Venue Leave to File Granted on November 5, 2012 filed by All Defendants. (Bayless, Jeremy) (Entered: 11/05/2012)
190 RESPONSE to Motion re 183 MOTION to Compel Production of Structured Interview Materials by Defendants' Expert Witness Jerry Milner filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Collins, Jeffrey) (Entered: 11/06/2012)
191 Emergency MOTION to Modify Scheduling Order by 21 Days by All Defendants. (Attachments: # 1 Exhibit A)(Collins, Jeffrey) (Entered: 11/07/2012)
192 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting in part and denying in part 183 Plaintiffs' Motion to Compel Production of Structured Interview Materials of Defendants' Expert Witness Jerry Milner, in which Plaintiffs seek "all notes, transcriptions, or recordings of all interviews conducted by [the expert]] as part of his expert report, as well as the structured interview tool or form used by [the expert]." Insofar as it appears that Defendants have not opposed the production of the form or interview tool, if any, used by the expert, Plaintiffs' motion is ALLOWED; Defendants shall produce any such form or tool to Plaintiffs by November 9, 2012. However, Plaintiffs' motion is otherwise DENIED. Without more of a showing of substantial need on Plaintiffs' part, the court agrees with Defendants that the expert's notes, transcriptions, or recordings do not fall within the "facts or data" which must be part of the expert's report, as required by Fed. R. Civ. P. 26(a)(2)(B)(ii). As the First Circuit explained in 2004, with reference to the then−existing version of the rule ("the data or other information considered by the witness"), Rule 26, upon which Plaintiffs rely, "does not require that the expert report contain, or be accompanied by, all working notes or recordings." Gillespie v. Sears, 386 F.3d 21, 34−35 (1st Cir. 2004). There is no telling difference between the two versions of this subsection of the rule, except to make clear that the change was designed to provide "work−product protection against discovery regarding draft reports and disclosures or attorney−expert communications." Fed. R. Civ. P. 2010 Advisory Committee Note. To be sure, Plaintiffs also argue that the expert's report itself is inadequate insofar as it fails to attribute facts to the particular interviewees listed in its Appendix B. That failure, however, if failure it be, does not mandate that the expert's notes, etc. be produced as part of Defendants' Rule 26 obligations. Nonetheless, the expert, of course, should be prepared to address inquiries regarding such attributions at his deposition. So ordered. (Neiman, Kenneth) (Entered: 11/08/2012)
193 Assented to MOTION for Discovery Regarding Expert Depositions by All Plaintiffs. (Attachments: # 1 Exhibit Stipulation)(Bartosz, Sara) (Entered: 11/08/2012)
194 Magistrate Judge Kenneth P. Neiman: ELECTRONIC ORDER entered granting 193 Motion Regarding Certain Expert Depositions. Endorsed stipulation to enter. (Neiman, Kenneth) (Entered: 11/09/2012)
195 Magistrate Judge Kenneth P. Neiman: STIPULATION AND ORDER regarding Expert Depositions ENTERED, cc:cl. (Healy, Bethaney) (Entered: 11/09/2012)
196 Opposition re 191 Emergency MOTION to Modify Scheduling Order by 21 Days filed by All Plaintiffs. (Borten, Laurence) (Entered: 11/13/2012)

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11/13/2012 11/14/2012 11/14/2012
11/14/2012 11/14/2012 11/19/2012 11/19/2012
11/19/2012 11/20/2012 11/21/2012 11/21/2012 11/21/2012 11/28/2012
12/03/2012 12/03/2012 12/03/2012 12/04/2012

197 DECLARATION re 196 Opposition to Motion to Modify Scheduling Order by 21 Days by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Bartosz, Sara) (Entered: 11/13/2012)
198 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 180 Motion to Change Venue. ALLOWED. (Lindsay, Maurice) (Entered: 11/14/2012)
199 Judge Michael A. Ponsor: ORDER entered. ORDER OF TRANSFER, this case is hereby ordered transferred to the Clerk in Boston to be redrawn to another judge. See the attached order for complete details. (Lindsay, Maurice) (Entered: 11/14/2012)
200 Case transferred to Eastern Division (Boston) (Lindsay, Maurice) (Entered: 11/14/2012)
201 Case no longer referred to Magistrate Judge Kenneth P. Neiman. (Lindsay, Maurice) (Entered: 11/14/2012)
202 Case transferred in from Western Division (Springfield) on 11/19/2012 Case Number 3:10−cv−30073. (Abaid, Kimberly) (Entered: 11/19/2012)
203 ELECTRONIC NOTICE of Case Assignment. Judge William G. Young assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Abaid, Kimberly) (Entered: 11/19/2012)
204 Assented to MOTION for Discovery Regarding Expert Depositions by All Plaintiffs. (Attachments: # 1 Exhibit Stipulation)(Bartosz, Sara) (Entered: 11/19/2012)
205 Joint MOTION for Rule 16 Scheduling Conference by All Parties.(Nili, Rachel) (Entered: 11/20/2012)
206 Judge William G. Young: ELECTRONIC ORDER entered granting 205 Joint Motion for Rule 16 Scheduling Conference. (Gaudet, Jennifer) (Entered: 11/21/2012)
207 ELECTRONIC NOTICE of Hearing. Status Conference set for 11/28/2012 02:30 PM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 11/21/2012)
208 Judge William G. Young: ELECTRONIC ORDER entered granting 204 Assented to MOTION for Discovery Regarding Expert Depositions (Paine, Matthew) (Entered: 11/21/2012)
213 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Status Conference held on 11/28/2012. The parties report status of the case. The Court sets the following deadlines: Summary Judgment motions are due on or before 12/3/2012; Responses are due 12/24/2012. A hearing on the motion(s) will be held at the January 10, 2013 motion session. The case is placed on the January 2013 running trial list but will not go forward before January 21, 2013 (Bench trial). The Court vacates any daubert or motions in limine deadlines. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Gleason, Lowry for the pltf.) (Gaudet, Jennifer) (Entered: 12/04/2012)
209 MOTION for Partial Summary Judgment by All Defendants.(Tran, Liza) (Entered: 12/03/2012)
210 MEMORANDUM in Support re 209 MOTION for Partial Summary Judgment filed by All Defendants. (Tran, Liza) (Entered: 12/03/2012)
211 Statement of Material Facts L.R. 56.1 re 209 MOTION for Partial Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Tran, Liza) (Entered: 12/03/2012)
212 ELECTRONIC NOTICE issued requesting courtesy copy for 211 Statement of Material Facts L.R. 56.1, 209 MOTION for Partial Summary Judgment , 210 Memorandum in Support of Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's

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12/04/2012 12/04/2012
12/11/2012 12/12/2012 12/12/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012 12/21/2012
12/21/2012 12/21/2012

Office by. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Paine, Matthew) (Entered: 12/04/2012)
214 Set/Reset Scheduling Order Deadlines: Motions due by 12/3/2012. Ready for Trial on or after 1/21/2013 09:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 12/04/2012)
215 ELECTRONIC NOTICE Setting Hearing on Motion 209 MOTION for Partial Summary Judgment : Motion Hearing set for 1/10/2013 02:00 PM in Courtroom 18 before Judge William G. Young. Responses are due on or before 12/24/2012. (Gaudet, Jennifer) (Entered: 12/04/2012)
216 Joint MOTION for Hearing for a Final Pre−Trial Conference by All Defendants.(Collins, Jeffrey) (Entered: 12/11/2012)
217 Judge William G. Young: ELECTRONIC ORDER entered granting 216 Joint Motion to Set Final Pretrial Conference. (Gaudet, Jennifer) (Entered: 12/12/2012)
218 NOTICE of Hearing. Final Pretrial Conference set for 1/16/2013 02:00 PM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 12/12/2012)
219 Pretrial Witness List Pursuant to Rule 26(a)(3)(A)(i) by All Defendants. (Tran, Liza) (Entered: 12/21/2012)
220 Pretrial Exhibit List Pursuant to Rule 26(a)(3)(A)(iii) by All Defendants.. (Attachments: # 1 Exhibit A)(Collins, Jeffrey) (Entered: 12/21/2012)
221 MOTION in Limine to Exclude the Tesimony of Lauren James by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Collins, Jeffrey) (Entered: 12/21/2012)
222 Pretrial Witness List Pursuant to Rule 26(a)(3)(A)(i) by All Plaintiffs. (Nili, Rachel) (Entered: 12/21/2012)
223 MOTION in Limine to Preclude Evidence of Individual Case Histories by All Defendants. (Attachments: # 1 Exhibit A)(Tran, Liza) (Entered: 12/21/2012)
224 Pretrial Exhibit List Pursuant to Rule 26(a)(3)(A)(iii) by All Plaintiffs.. (Attachments: # 1 Exhibit 1)(Nili, Rachel) (Entered: 12/21/2012)
225 MOTION in Limine to Exclude Evidence of Events Occurring While Class Members Were Not in State Custody by All Defendants.(Tran, Liza) (Entered: 12/21/2012)
226 Pretrial Witness List Pursuant to Rule 26(a)(3)(A)(ii) by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Nili, Rachel) (Entered: 12/21/2012)
227 MOTION in Limine to Preclude Testimony of Cheryl Haddad by All Defendants. (Attachments: # 1 Exhibit A)(Tran, Liza) (Entered: 12/21/2012)
228 MOTION in Limine to Exclude the "Hitting the M.A.R.C." Report by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Tran, Liza) (Entered: 12/21/2012)
229 MOTION to Strike Plaintiffs' Additional Three Expert Witness Reports Submitted on November 19, 2012 by All Defendants. (Attachments: # 1 Exhibit A)(Tran, Liza) (Entered: 12/21/2012)
230 MOTION in Limine to Exclude the Testimony of Plaintiffs' Expert Lenette Azzi−Lessing, PhD, or in the Alternative to Significantly Limit Her Testimony Pursuant to Federal Rule of Evidence 702 by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Tran, Liza) (Entered: 12/21/2012)
231 MOTION in Limine to Exclude the Testimony of Cathy R. Crabtree Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Collins, Jeffrey) (Entered: 12/21/2012)
232 MOTION in Limine to Exclude the Testimony of Arburta Jones Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. by All Defendants. (Attachments: #

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12/21/2012 12/21/2012
12/24/2012 12/24/2012
12/24/2012
12/24/2012 12/24/2012 12/24/2012 12/24/2012 12/24/2012
12/26/2012

1 Exhibit A, # 2 Exhibit B)(Collins, Jeffrey) (Main Document 232 replaced on 1/3/2013) (Paine, Matthew). (Entered: 12/21/2012)
233 MOTION in Limine to Exclude the Testimony of Christopher Bellonci Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Collins, Jeffrey) (Entered: 12/21/2012)
234 MOTION in Limine to Exclude All Evidence Relating to the CRC Report Under the Daubert Standard and Federal Rule of Evidence 702 by All Defendants. (Attachments: # 1 Exhibit A (Part 1 of 11), # 2 Exhibit A (Part 2 of 11), # 3 Exhibit A (Part 3 of 11), # 4 Exhibit A (Part 4 of 11), # 5 Exhibit A (Part 5 of 11), # 6 Exhibit A (Part 6 of 11), # 7 Exhibit A (Part 7 of 11), # 8 Exhibit A (Part 8 of 11), # 9 Exhibit A (Part 9 of 11), # 10 Exhibit A (Part 10 of 11), # 11 Exhibit A (Part 11 of 11), # 12 Exhibit B, # 13 Exhibit C, # 14 Exhibit D, # 15 Exhibit E, # 16 Exhibit F, # 17 Exhibit G)(Tran, Liza) (Entered: 12/21/2012)
235 Opposition re 209 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Lowry, Marcia) (Entered: 12/24/2012)
236 AFFIDAVIT of Laurence D. Borten in Opposition re 209 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 15, # 10 Exhibit 17, # 11 Exhibit 18, # 12 Exhibit 19, # 13 Exhibit 21, # 14 Exhibit 22, # 15 Exhibit 23, # 16 Exhibit 24, # 17 Exhibit 25, # 18 Exhibit 26, # 19 Exhibit 38, # 20 Exhibit 39, # 21 Exhibit 40, # 22 Exhibit 45, # 23 Exhibit 46, # 24 Exhibit 57, # 25 Exhibit 72, # 26 Exhibit 78, # 27 Exhibit 79, # 28 Exhibit 86, # 29 Exhibit 87, # 30 Exhibit 90, # 31 Exhibit 91, # 32 Exhibit 107)(Borten, Laurence) (Entered: 12/24/2012)
237 First AFFIDAVIT of Sara Bartosz in Opposition re 209 MOTION for Partial Summary Judgment filed by All Parties. (Attachments: # 1 Exhibit 1, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 13, # 5 Exhibit 14, # 6 Exhibit 16, # 7 Exhibit 20, # 8 Exhibit 27, # 9 Exhibit 28, # 10 Exhibit 29, # 11 Exhibit 30, # 12 Exhibit 31, # 13 Exhibit 32, # 14 Exhibit 33, # 15 Exhibit 34, # 16 Exhibit 35, # 17 Exhibit 36, # 18 Exhibit 37, # 19 Exhibit 41, # 20 Exhibit 42, # 21 Exhibit 43, # 22 Exhibit 44, # 23 Exhibit 47, # 24 Exhibit 48, # 25 Exhibit 49, # 26 Exhibit 50, # 27 Exhibit 51, # 28 Exhibit 52)(Bartosz, Sara) (Entered: 12/24/2012)
238 AFFIDAVIT of Rachel Brodin Nili in Opposition re 209 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit 12, # 2 Exhibit 53, # 3 Exhibit 54, # 4 Exhibit 55, # 5 Exhibit 67, # 6 Exhibit 76, # 7 Exhibit 84, # 8 Exhibit 85, # 9 Exhibit 88, # 10 Exhibit 89, # 11 Exhibit 92, # 12 Exhibit 94, # 13 Exhibit 103, # 14 Exhibit 104)(Nili, Rachel) (Entered: 12/24/2012)
239 AFFIDAVIT of Elissa Glucksman Hyne in Opposition re 209 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit 96, # 2 Exhibit 108)(Borten, Laurence) (Entered: 12/24/2012)
240 Response by All Plaintiffs to 211 Statement of Material Facts L.R. 56.1 . (Borten, Laurence) (Entered: 12/24/2012)
241 Statement of Material Facts L.R. 56.1 re 209 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Lowry, Marcia) (Entered: 12/24/2012)
242 Second AFFIDAVIT of Sara Bartosz in Opposition re 209 MOTION for Partial Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit 56, # 2 Exhibit 58, # 3 Exhibit 59, # 4 Exhibit 60, # 5 Exhibit 61, # 6 Exhibit 62, # 7 Exhibit 63, # 8 Exhibit 64, # 9 Exhibit 65, # 10 Exhibit 66, # 11 Exhibit 68, # 12 Exhibit 69, # 13 Exhibit 70, # 14 Exhibit 71, # 15 Exhibit 73, # 16 Exhibit 74, # 17 Exhibit 75, # 18 Exhibit 77, # 19 Exhibit 80, # 20 Exhibit 81, # 21 Exhibit 82, # 22 Exhibit 83, # 23 Exhibit 93, # 24 Exhibit 95, # 25 Exhibit 97, # 26 Exhibit 98, # 27 Exhibit 99, # 28 Exhibit 100, # 29 Exhibit 101, # 30 Exhibit 102, # 31 Exhibit 105, # 32 Exhibit 106)(Bartosz, Sara) (Entered: 12/24/2012)
243 ELECTRONIC NOTICE issued requesting courtesy copy for 235 Opposition to Motion, 220 Exhibit List, 237 Affidavit in Opposition to Motion,, 231 MOTION in

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12/28/2012 12/31/2012 12/31/2012 12/31/2012
01/03/2013
01/03/2013
01/03/2013 01/03/2013 01/03/2013
01/03/2013

Limine to Exclude the Testimony of Cathy R. Crabtree Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 226 Witness List, 242 Affidavit in Opposition to Motion,,, 229 MOTION to Strike Plaintiffs' Additional Three Expert Witness Reports Submitted on November 19, 2012, 219 Witness List, 225 MOTION in Limine to Exclude Evidence of Events Occurring While Class Members Were Not in State Custody, 241 Statement of Material Facts L.R. 56.1, 238 Affidavit in Opposition to Motion, 232 MOTION in Limine to Exclude the Testimony of Arburta Jones Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 223 MOTION in Limine to Preclude Evidence of Individual Case Histories, 236 Affidavit in Opposition to Motion,,, 224 Exhibit List, 233 MOTION in Limine to Exclude the Testimony of Christopher Bellonci Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 228 MOTION in Limine to Exclude the "Hitting the M.A.R.C." Report, 239 Affidavit in Opposition to Motion, 221 MOTION in Limine to Exclude the Tesimony of Lauren James, 234 MOTION in Limine to Exclude All Evidence Relating to the CRC Report Under the Daubert Standard and Federal Rule of Evidence 702, 227 MOTION in Limine to Preclude Testimony of Cheryl Haddad, 230 MOTION in Limine to Exclude the Testimony of Plaintiffs' Expert Lenette Azzi−Lessing, PhD, or in the Alternative to Significantly Limit Her Testimony Pursuant to Federal Rule of Evidence 702, 222 Witness List, 240 Response. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Paine, Matthew) (Entered: 12/26/2012)
244 MOTION to Strike Plaintiffs' Exhibit List and Limit Plaintiffs' Use of Deposition Designations by All Defendants.(Tran, Liza) (Entered: 12/28/2012)
245 Plaintiffs' Amended Exhibit List by All Plaintiffs.. (Attachments: # 1 Exhibit 1)(Nili, Rachel) (Entered: 12/31/2012)
246 RESPONSE to Motion re 244 MOTION to Strike Plaintiffs' Exhibit List and Limit Plaintiffs' Use of Deposition Designations filed by All Plaintiffs. (Bartosz, Sara) (Entered: 12/31/2012)
247 AFFIDAVIT of Sara Michelle Bartosz in Opposition re 244 MOTION to Strike Plaintiffs' Exhibit List and Limit Plaintiffs' Use of Deposition Designations filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Bartosz, Sara) (Entered: 12/31/2012)
248 Opposition re 230 MOTION in Limine to Exclude the Testimony of Plaintiffs' Expert Lenette Azzi−Lessing, PhD, or in the Alternative to Significantly Limit Her Testimony Pursuant to Federal Rule of Evidence 702 filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Nili, Rachel) (Entered: 01/03/2013)
249 AFFIDAVIT of Rachel Brodin Nili in Opposition re 230 MOTION in Limine to Exclude the Testimony of Plaintiffs' Expert Lenette Azzi−Lessing, PhD, or in the Alternative to Significantly Limit Her Testimony Pursuant to Federal Rule of Evidence 702 filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Nili, Rachel) (Entered: 01/03/2013)
250 Opposition re 221 MOTION in Limine to Exclude the Tesimony of Lauren James filed by All Plaintiffs. (Nili, Rachel) (Entered: 01/03/2013)
251 RESPONSE to Motion re 228 MOTION in Limine to Exclude the "Hitting the M.A.R.C." Report filed by All Plaintiffs. (Nili, Rachel) (Entered: 01/03/2013)
252 Opposition re 234 MOTION in Limine to Exclude All Evidence Relating to the CRC Report Under the Daubert Standard and Federal Rule of Evidence 702 filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Borten, Laurence) (Entered: 01/03/2013)
253 AFFIDAVIT of Laurence D. Borten in Opposition re 234 MOTION in Limine to Exclude All Evidence Relating to the CRC Report Under the Daubert Standard and Federal Rule of Evidence 702 filed by All Plaintiffs. (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)(Borten, Laurence) (Entered: 01/03/2013)

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01/03/2013 01/03/2013
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01/04/2013 01/04/2013 01/04/2013 01/04/2013
01/04/2013 01/04/2013
01/04/2013 01/07/2013

254 Opposition re 229 MOTION to Strike Plaintiffs' Additional Three Expert Witness Reports Submitted on November 19, 2012 filed by All Plaintiffs. (Borten, Laurence) (Entered: 01/03/2013)
255 AFFIDAVIT of Laurence D. Borten in Opposition re 229 MOTION to Strike Plaintiffs' Additional Three Expert Witness Reports Submitted on November 19, 2012 filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Borten, Laurence) (Entered: 01/03/2013)
256 Opposition re 225 MOTION in Limine to Exclude Evidence of Events Occurring While Class Members Were Not in State Custody filed by All Plaintiffs. (Nili, Rachel) (Entered: 01/04/2013)
257 AFFIDAVIT of Rachel Brodin Nili in Opposition re 225 MOTION in Limine to Exclude Evidence of Events Occurring While Class Members Were Not in State Custody filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Nili, Rachel) (Entered: 01/04/2013)
258 Unopposed MOTION to Seal the Deposition Transcript of Lauren James (DOCKET No 221−1) by All Defendants.(Joseph, Steven) (Entered: 01/04/2013)
259 Opposition re 223 MOTION in Limine to Preclude Evidence of Individual Case Histories filed by All Plaintiffs. (Polansky, Jessica) (Entered: 01/04/2013)
260 AFFIDAVIT of Jessica Polansky in Opposition re 223 MOTION in Limine to Preclude Evidence of Individual Case Histories filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Polansky, Jessica) (Entered: 01/04/2013)
261 Opposition re 232 MOTION in Limine to Exclude the Testimony of Arburta Jones Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. filed by All Plaintiffs. (Nili, Rachel) (Entered: 01/04/2013)
262 AFFIDAVIT in Opposition re 232 MOTION in Limine to Exclude the Testimony of Arburta Jones Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Nili, Rachel) (Entered: 01/04/2013)
263 Opposition re 227 MOTION in Limine to Preclude Testimony of Cheryl Haddad filed by All Plaintiffs. (Polansky, Jessica) (Entered: 01/04/2013)
264 AFFIDAVIT of Jessica Polansky in Opposition re 227 MOTION in Limine to Preclude Testimony of Cheryl Haddad filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Polansky, Jessica) (Entered: 01/04/2013)
265 Opposition re 233 MOTION in Limine to Exclude the Testimony of Christopher Bellonci Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Polansky, Jessica) (Entered: 01/04/2013)
266 AFFIDAVIT of Jessica Polansky in Opposition re 233 MOTION in Limine to Exclude the Testimony of Christopher Bellonci Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Polansky, Jessica) (Entered: 01/04/2013)
267 Opposition re 231 MOTION in Limine to Exclude the Testimony of Cathy R. Crabtree Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. filed by All Plaintiffs. (Borten, Laurence) (Entered: 01/04/2013)
268 AFFIDAVIT in Opposition re 231 MOTION in Limine to Exclude the Testimony of Cathy R. Crabtree Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Borten, Laurence) (Entered: 01/04/2013)
269 Amended Trial Exhibit List by All Defendants.. (Attachments: # 1 Exhibit A)(Collins, Jeffrey) (Entered: 01/04/2013)
270 ELECTRONIC NOTICE issued requesting courtesy copy for 260 Affidavit in Opposition to Motion, 261 Opposition to Motion, 266 Affidavit in Opposition to Motion, 259 Opposition to Motion, 264 Affidavit in Opposition to Motion, 263

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01/17/2013

Opposition to Motion, 268 Affidavit in Opposition to Motion, 269 Exhibit List, 257 Affidavit in Opposition to Motion, 267 Opposition to Motion, 258 MOTION to Seal the Deposition Transcript of Lauren James (DOCKET No 221−1), 256 Opposition to Motion, 262 Affidavit in Opposition, 265 Opposition to Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Paine, Matthew) (Entered: 01/07/2013)
271 Judge William G. Young: ELECTRONIC ORDER entered granting 258 Unopposed MOTION to Seal the Deposition Transcript of Lauren James (DOCKET No 221−1) (Paine, Matthew) (Entered: 01/07/2013)
272 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 1/10/2013 re 209 MOTION for Partial Summary Judgment filed by All Defendants. After hearing from the parties, the Court enters and Order denying 209 Motion for Partial Summary Judgment. The motion is denied, not on the merits, but as a matter of judicial economy. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Lowry for the pltfs., Collins, Barshak, Tran for the defts.) (Gaudet, Jennifer) (Entered: 01/14/2013)
273 Transcript of Motion Hearing held on January 10, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 2/5/2013. Redacted Transcript Deadline set for 2/15/2013. Release of Transcript Restriction set for 4/15/2013. (Scalfani, Deborah) (Entered: 01/15/2013)
274 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/15/2013)
275 MOTION to Correct 234 MOTION in Limine to Exclude All Evidence Relating to the CRC Report Under the Daubert Standard and Federal Rule of Evidence 702 and [234−16] Exhibit F by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit F)(Joseph, Steven) (Entered: 01/15/2013)
276 Supplemental Exhibit List by All Plaintiffs.. (Attachments: # 1 Exhibit 1)(Nili, Rachel) (Entered: 01/15/2013)
277 PRETRIAL MEMORANDUM by All Parties. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D)(Tran, Liza) (Entered: 01/16/2013)
278 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Final Pretrial Conference held on 1/16/2013. The Court inquires as to settlement. Bench trial to begin on Tuesday, January 22, 2013 at 9:00 AM. The plaintiffs have 20 trial days to complete their case. The 20 days will be interrupted only by criminal trials and civil matter Jepson v. Deutsche Bank 12−cv−11226. At the conclusion of the plaintiffs' case, the Court will break from this matter and turn to any civil jury trials on the running trial list that need to be heard. A further final pretrial conference will be held. The defense will then be given 20 trial days, the Court will again suspend for other matters and allow another 10 trial days if needed. The Court anticipates taken the matter under advisement at the conclusion of the trial. Any requests for findings and rulings shall be filed at the conclusion of the Commonwealth's case. (Court Reporter: None.) (Gaudet, Jennifer) (Entered: 01/17/2013)
279 Set/Reset Hearings: Bench Trial Day One set for 1/22/2013 09:00 AM in Courtroom 18 before Judge William G. Young. Bench Trial Day Two set for 1/23/2013 09:00 AM in Courtroom 18 before Judge William G. Young. Bench Trial Day Three set for 1/24/2013 09:00 AM in Courtroom 18 before Judge William G. Young. Bench Trial Day Four set for 1/25/2013 09:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered:

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01/22/2013 01/24/2013

01/17/2013)
280 MOTION for Leave to Appear Pro Hac Vice for admission of Bethany J. Flaherty Filing fee: $ 100, receipt number 0101−4286566 by Lauren Ashley James. (Attachments: # 1 Declaration of Bethany J. Flaherty)(Carter, Christopher) (Entered: 01/17/2013)
281 MOTION for Leave to Appear Pro Hac Vice for admission of Sujata M. Tanikella Filing fee: $ 100, receipt number 0101−4286620 by Lauren Ashley James. (Attachments: # 1 Declaration of Sujata M. Tanikella)(Carter, Christopher) (Entered: 01/17/2013)
282 Judge William G. Young: ELECTRONIC ORDER entered granting 280 Motion for Leave to Appear Pro Hac Vice. Added Bethany J. Flaherty. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Gaudet, Jennifer) (Entered: 01/18/2013)
283 Judge William G. Young: ELECTRONIC ORDER entered granting 281 Motion for Leave to Appear Pro Hac Vice. Added Sujata M. Tanikella. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Gaudet, Jennifer) (Entered: 01/18/2013)
284 TRIAL BRIEF by All Defendants. (Tran, Liza) (Entered: 01/18/2013)
285 Objections to Plaintiffs' Amended Exhibit List by All Defendants.. (Tran, Liza) (Entered: 01/18/2013)
286 Objections to Plaintiffs' Supplemental Exhibit List by All Defendants.. (Tran, Liza) (Entered: 01/18/2013)
287 Reference Key to Defendants' Objections to Plaintiffs' Exhibit List by All Defendants.. (Tran, Liza) (Entered: 01/19/2013)
288 Defendants' Amended Objections to Plaintiffs' Amended Exhibit List by All Defendants.. (Tran, Liza) (Entered: 01/21/2013)
289 TRIAL BRIEF by All Plaintiffs. (Borten, Laurence) (Entered: 01/21/2013)
290 Defendants' Second Amended Exhibit List by All Defendants.. (Tran, Liza) (Entered: 01/21/2013)
291 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day One held on 1/22/2013. Openings made by plaintiff and defendant. The plaintiffs' evidence commences with P−1, Lauren Ashley James (sworn), P−2, Dr. Christopher Bellonci (sworn). Court adjourned until Thursday, January 24, 2013 at 9:00 AM. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 01/22/2013)
292 Set/Reset Hearings: Bench Trial Day Two set for 1/24/2013 09:00 AM in Courtroom 18 before Judge William G. Young. Bench Trial Day Three set for 1/25/2013 09:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 01/22/2013)
293 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Two held on 1/24/2013. P−2, Christopher Bellonci resumes the stand. Court adjourned until 1/25/2013 at 9:00 AM. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.)) (Gaudet, Jennifer) (Entered: 01/25/2013)

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294 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Three held on 1/25/2013. P−2, Dr. Christopher Bellonci resumes the stand. P−3, Lenette Lessing (sworn). Court adjourned at 1:00 PM. Trial continued to Wednesday, January 30, 2013 at 9:00 AM. (Bench Trial Day Four set for 1/30/2013 09:00 AM in Courtroom 18 before Judge William G. Young., Bench Trial Day Five set for 1/31/2013 09:00 AM in Courtroom 18 before Judge William G. Young.) (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 01/25/2013)
295 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Four held on 1/30/2013. The plaintiff's evidence continues with P−4, Raelene Freitag (sworn). Court adjourned until Thursday, January 31, 2013 at 9:00 AM. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.)) (Gaudet, Jennifer) (Entered: 01/30/2013)
296 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Five held on 1/31/2013. The plaintiff's evidence continues with P−4, Raelene Freitag (sworn). P−5, Kristen Johnson (sworn). Court adjourned until Monday, February 4, 2013 at 9:00 AM. Bench Trial day six set for 2/4/2013 09:00 AM in Courtroom 18 before Judge William G. Young., Bench Trial day seven set for 2/5/2013 09:00 AM in Courtroom 18 before Judge William G. Young., Bench Trial day eight set for 2/6/2013 09:00 AM in Courtroom 18 before Judge William G. Young., Bench Trial day nine set for 2/7/2013 09:00 AM in Courtroom 18 before Judge William G. Young., Bench Trial day ten set for 2/8/2013 09:00 AM in Courtroom 18 before Judge William G. Young.). (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 01/31/2013)
297 Mail Returned as Undeliverable. Mail sent to Bethany J. Flaherty (Paine, Matthew) (Entered: 02/05/2013)
298 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Six held on 2/4/2013. P−5, Dr. Johnson resumes the stand. P−6, Professor Erik Nordheim (sworn). P−3, Lenette Lessing resumes the stand. Trial continued to 9:00 AM Tuesday, February 5, 2013. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 02/05/2013)
299 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Seven held on 2/5/2013. P−3, Lenette Lessing resumes the stand. The Court announces to the parties that the exhibits will not be placed in case file at the conclusion of the trial due to names and personal data in said exhibits. The exhibits will be returned to counsel upon conclusion of this matter. Court adjourned until 9:00 AM, Wednesday, February 6, 2013. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.)) (Gaudet, Jennifer) (Entered: 02/06/2013)
300 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Eight held on 2/6/2013. P−3, Lenette Lessing resumes the stand. P−7, Elissa Clucksman Hyne (sworn). Plaintiff shall submit 2011 Report in accordance with exhibit 1086. P−8, Denise Sullivan (sworn). P−9, Arburta Jones (sworn). Bench trial continued to 9:00 AM on Thursday, February 7, 2013. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 02/07/2013)
301 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day nine held on 2/7/2013. P−2, Christopher Bellonci resumes the stand. P−9, Arburta Jones resumes the stand. Trial is suspended until Thursday, February 28, 2013 at 9:00 AM unless the Aldrich case (09cv11282) ends early next week. The clerk will notify the parties whether they should appear on Friday, February 15th. (Court Reporter: Donald Womack at

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womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 02/07/2013)
302 ELECTRONIC NOTICE of Hearing. Bench Trial Day Ten set for 2/15/2013 09:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 02/12/2013)
303 AMICUS BRIEF filed by Citizens Commission on Human Rights New England. (Paine, Matthew) (Entered: 02/14/2013)
304 NOTICE of Appearance by Alexander Klibaner on behalf of Gail Garinger (Klibaner, Alexander) (Entered: 02/14/2013)
305 MOTION to Quash Trial Subpoena by Gail Garinger. (Attachments: # 1 Affidavit Gail Garinger, the Child Advocate, # 2 Exhibit Exh. A to Garinger Affid., Trial Subpoena)(Klibaner, Alexander) (Entered: 02/14/2013)
306 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Ten held on 2/15/2013. P−9, Arburta Jones resumes the stand. P−10, Judge Gail Garinger (sworn). Bench Trial Day Eleven set for 2/28/2013 09:00 AM in Courtroom 18 before Judge William G. Young., Bench Trial Day Twelve set for 3/1/2013 09:00 AM in Courtroom 18 before Judge William G. Young.). (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 02/15/2013)
307 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Eleven held on 2/28/2013. The plaintiffs' evidence continues with P−11, Catherine Crabtree (sworn). Bench trial continued to Friday, March 1, 2013 at 9:00 AM. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 03/01/2013)
308 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day Twelve held on 3/1/2013. P−11, Catherine Crabtree resumes the stand. Plaintiff rests. The parties are to submit any documents in dispute with notations. If the Court requires argument, a hearing will be set. The defendants will file a motion for judgment on the record − no deadline set. The trial is continued to a date in April, not yet set. The defendants move orally for an enlargement of the page limit for their motion, motion denied. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 03/05/2013)
309 ELECTRONIC NOTICE of Hearing. Bench Trial day 13 set for 4/16/2013 09:00 AM. Bench Trial day 14 set for 4/17/2013 09:00 AM. Bench Trial day 15 set for 4/18/2013 09:00 AM. Bench Trial day 16 set for 4/19/2013 09:00 AM Bench Trial 17 set for 4/29/2013 09:00 AM. Bench Trial day 18 set for 4/30/2013 09:00 AM. Bench Trial day 19 set for 5/1/2013 09:00 AM. Bench Trial day 20 set for 5/2/2013 09:00 AM. Bench Trial day 21 set for 5/3/2013 09:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 04/08/2013)
310 ELECTRONIC NOTICE Canceling Bench Trial starting April 16, 2013 through April 19, 2013, due to a family emergency with Lead Plaintiff's Counsel. The Bench Trial Will Resume on Monday April 29, 2013. (Paine, Matthew) (Entered: 04/12/2013)
311 ELECTRONIC NOTICE of Hearing. Status/Scheduling Conference set for 4/18/2013 10:00 AM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 04/16/2013)
312 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Status Conference held on 4/18/2013. The Court explains the upcoming schedule. The trial will resume on Monday, April 29th. The Court will sit on this trial the whole week of April 29th and May 6th. The trial will continue on Monday, May 13th and Tuesday, May 14th. The trial will suspend at this point to a future date to be determined. The Court announces the depositions reviewed. The

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defendant notifies the Court that they intend to file their motion at the conclusion of the cross−examination of Ms. Crabtree. The plaintiff shall file their reply within 14 days. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 04/18/2013)
313 NOTICE of Appearance by Emily J. Grannon on behalf of All Plaintiffs (Grannon, Emily) (Entered: 04/26/2013)
314 Amended Exhibit List by All Defendants.. (Attachments: # 1 Exhibit A)(Collins, Jeffrey) (Entered: 04/29/2013)
315 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 13 held on 4/29/2013. Evidence not entered due to unavailability of witness. One trial day will be charged to the defendants. The Court announces the schedule going forward, including the options for when Ms. Crabtree should resume the stand for cross examination. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 04/30/2013)
316 MOTION for Directed Verdict by All Defendants.(Collins, Jeffrey) (Entered: 04/30/2013)
317 Memorandum of Law in Support 316 MOTION for Directed Verdict by All Defendants.(Collins, Jeffrey) (Modified on 5/1/2013 to Correct Docket Text and CM/ECF Document Linkage) (Paine, Matthew). (Entered: 04/30/2013)
318 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 14 held on 4/30/2013. Defendants' evidence commences with D−1, Angelo McClain (sworn). (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/01/2013)
319 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 15 held on 5/1/2013. The testimony of D−1, Angelo McClain continues. The plaintiff shall file their response to 316 Defendants' Motion for Directed Verdict on or before May 16, 2013. A hearing will be set on the pending motion. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/02/2013)
320 ELECTRONIC NOTICE Setting Hearing on Motion 316 MOTION for Directed Verdict : Motion Hearing set for 5/21/2013 02:45 PM in Courtroom 18 before Judge William G. Young. (Gaudet, Jennifer) (Entered: 05/02/2013)
322 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 16 held on 5/2/2013. D−1, Angelo McClain resumes the stand. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/03/2013)
321 Set/Reset Deadlines as to 316 MOTION for Directed Verdict. Motion Hearing reset for 5/21/2013 02:30 PM in Courtroom 18 before Judge William G. Young. PLEASE NOTE: Change in time only. (Gaudet, Jennifer) (Entered: 05/03/2013)
323 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 17 held on 5/3/2013. D−1, Angelo McClain resumes the stand. (Bench Trial day 18 set for 5/6/2013 09:00 AM, Bench Trial day 19 set for 5/7/2013 09:00 AM, Bench Trial day 20 set for 5/8/2013 09:00 AM, Bench Trial day 21 set for 5/9/2013 09:00 AM, Bench Trial day 22 set for 5/10/2013 09:00 AM, Bench Trial day 23 set for 5/13/2013 09:00 AM, Bench Trial day 24 set for 5/14/2013 09:00 AM in Courtroom 18 before Judge William G. Young.) (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/03/2013)

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324 Set/Reset Hearings: Bench Trial Day Nineteen reset for 5/7/2013 10:00 AM in Courtroom 18 before Judge William G. Young. Time Change ONLY. (Gaudet, Jennifer) (Entered: 05/06/2013)
345 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 18 held on 5/6/2013. D−1, Angelo McClain resumes the stand. Court adjourned at 1:00 PM to resume at 10:00 AM on Tuesday, May 7, 2013. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/07/2013)
325 Transcript of Bench Trial − Day One held on January 22, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
326 Transcript of Bench Trial − Day Two held on January 24, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
327 Transcript of Bench Trial − Day Three held on January 25, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
328 Transcript of Bench Trial − Day Four held on January 30, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
329 Transcript of Bench Trial − Day Five held on January 31, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
330 Transcript of Bench Trial − Day Six held on February 4, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
331 Transcript of Bench Trial − Day Seven held on February 5, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)

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332 Transcript of Bench Trial − Day Eight held on February 6, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
333 Transcript of Bench Trial − Day Nine held on February 7, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
334 Transcript of Bench Trial − Day Ten held on February 15, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
335 Transcript of Bench Trial − Day Eleven held on February 28, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
336 Transcript of Bench Trial − Day Twelve held on March 1, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
337 Transcript of Status Conference held on April 18, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
338 Transcript of Bench Trial − Day Thirteen held on April 29, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
339 Transcript of Bench Trial − Day Fourteen held on April 30, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
340 Transcript of Bench Trial − Day Fifteen held on May 1, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court

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Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
341 Transcript of Bench Trial − Day Sixteen held on May 2, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
342 Transcript of Bench Trial − Day Seventeen held on May 3, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
343 Transcript of Bench Trial − Day Eighteen held on May 6, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/28/2013. Redacted Transcript Deadline set for 6/7/2013. Release of Transcript Restriction set for 8/5/2013. (Scalfani, Deborah) (Entered: 05/07/2013)
344 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/07/2013)
346 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 19 held on 5/7/2013. D−1, Angelo McClain resumes the stand. P−11, Catherine Crabtree resumes the stand for cross−examination. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/08/2013)
347 Transcript of Bench Trial − Day Nineteen held on May 7, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/29/2013. Redacted Transcript Deadline set for 6/10/2013. Release of Transcript Restriction set for 8/6/2013. (Scalfani, Deborah) (Entered: 05/08/2013)
348 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/08/2013)
351 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 20 held on 5/8/2013. P−11, Catherine Crabtree resumes the stand. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/09/2013)
349 Transcript of Bench Trial − Day Twenty held on May 8, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/30/2013. Redacted Transcript

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Deadline set for 6/10/2013. Release of Transcript Restriction set for 8/7/2013. (Scalfani, Deborah) (Entered: 05/09/2013)
350 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/09/2013)
354 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 21 held on 5/9/2013. P−11, Catherine Crabtree resumes the stand. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/13/2013)
352 Transcript of Bench Trial − Day Twenty One held on May 9, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 5/31/2013. Redacted Transcript Deadline set for 6/10/2013. Release of Transcript Restriction set for 8/8/2013. (Scalfani, Deborah) (Entered: 05/10/2013)
353 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/10/2013)
355 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 22 held on 5/10/2013. P−11, Catherine Crabtree resumes the stand. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/13/2013)
361 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 23 held on 5/13/2013. D−2, Jan Nisenbaum (sworn). (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/24/2013)
362 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Bench Trial Day 24 held on 5/14/2013. D−2, Jan Nisenbaum resumes the stand. Trial suspended until further notice. Motion hearing set for 5/21/2013 at 2:30 PM. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/24/2013)
356 RESPONSE to Motion re 316 MOTION for Directed Verdict filed by All Plaintiffs. (Attachments: # 1 Exhibit A − Plaintiffs' Proposed Findings of Fact)(Borten, Laurence) (Entered: 05/16/2013)
357 ELECTRONIC NOTICE issued requesting courtesy copy for 356 Response to Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Paine, Matthew) (Entered: 05/17/2013)
358 Transcript of Bench Trial − Day Twenty Three held on May 13, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 6/7/2013. Redacted Transcript Deadline set for 6/17/2013. Release of Transcript Restriction set for 8/15/2013. (Scalfani, Deborah) (Entered: 05/17/2013)

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05/17/2013
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09/30/2013 10/09/2013 10/10/2013

359 Transcript of Bench Trial − Day Twenty Four held on May 14, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 6/7/2013. Redacted Transcript Deadline set for 6/17/2013. Release of Transcript Restriction set for 8/15/2013. (Scalfani, Deborah) (Entered: 05/17/2013)
360 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/17/2013)
363 ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Motion Hearing held on 5/21/2013 re 316 MOTION for Directed Verdict filed by All Defendants. Oral arguments by defendant and plaintiff. The Court takes the matter under advisement. If the case proceeds, a date will be set for trial to resume in September 2013. (Court Reporter: Donald Womack at womack@megatran.com.)(Attorneys present: Bartosz, Borten, Russo for the pltfs., Tran, Collins and Barshak for the defts.) (Gaudet, Jennifer) (Entered: 05/24/2013)
364 Transcript of Motion Hearing held on May 21, 2013, before Judge William G. Young. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 6/20/2013. Redacted Transcript Deadline set for 7/1/2013. Release of Transcript Restriction set for 8/28/2013. (Scalfani, Deborah) (Entered: 05/30/2013)
365 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/30/2013)
366 NOTICE of Withdrawal of Appearance by Jessica Elyse Polansky (Polansky, Jessica) (Entered: 06/21/2013)
367 Amended Exhibit List by All Plaintiffs.. (Attachments: # 1 Exhibit A)(Nili, Rachel) (Entered: 06/21/2013)
368 NOTICE of Withdrawal of Appearance of Kara Morrow (Nili, Rachel) (Modified on 7/9/2013 to Correct Docket Text) (Paine, Matthew). (Entered: 07/08/2013)
369 Judge William G. Young: ORDER entered: Having had the opportunity to review the trial transcripts, exhibits, and other evidence in the record in exquisite detail, this Court GRANTS the Defendants motion for judgment on the record, ECF No. 316, and enters final judgment in the Defendants favor. Beholden to the reporting requirements imposed by the Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471−482, the Courts order presently stands absent any accompanying rationale. The parties ought rest assured, however, that a memorandum setting forth the relevant findings of fact and conclusions of law, as required by Federal Rule of Civil Procedure 52(c), is to follow in due course. The time for filing an appeal, if any, is extended and shall commence to run upon the filing of the memorandum. SO ORDERED re 316 Motion for Directed Verdict. (Paine, Matthew) (Entered: 09/30/2013)
370 Judge William G. Young: ORDER entered. JUDGMENT (Paine, Matthew) (Main Document 370 replaced on 10/1/2013 Due to Typographical Error) (Paine, Matthew). (Entered: 09/30/2013)
371 MOTION for Extension of Time to 11/29/2013 to File Notice of Appeal by All Plaintiffs.(Persky, Jonathan) (Entered: 10/09/2013)
372 Judge William G. Young: ELECTRONIC ORDER entered granting 371 MOTION for Extension of Time to 11/29/2013 to File Notice of Appeal (Paine, Matthew) (Entered: 10/10/2013)

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02/03/2014

373 Judge William G. Young: ORDER entered. FINDINGS AND RULINGS(Paine, Matthew) (Entered: 11/22/2013)
374 NOTICE OF APPEAL as to 369 Order on Motion for Directed Verdict,,, 370 Judgment, 373 Findings of Fact &Conclusions of Law by All Plaintiffs Filing fee: $ 455, receipt number 0101−4748420 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 12/16/2013. (Persky, Jonathan) (Entered: 11/26/2013)
375 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 374 Notice of Appeal (Paine, Matthew) (Entered: 11/27/2013)
376 USCA Case Number 13−2467 for 374 Notice of Appeal filed by All Plaintiffs. (Paine, Matthew) (Entered: 11/27/2013)
377 Transcript of Conference held on November 28, 2012, before Judge William G. Young. COA Case No. 13−2467. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of Transcript Restriction set for 3/2/2014. (Scalfani, Deborah) (Entered: 12/02/2013)
378 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/02/2013)
379 Transcript of Bench Trial Day Twenty Two held on May 10, 2013, before Judge William G. Young. COA Case No. 13−2467. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Donald Womack at womack@megatran.com Redaction Request due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of Transcript Restriction set for 3/2/2014. (Scalfani, Deborah) (Entered: 12/02/2013)
380 TRANSCRIPT ORDER FORM by All Plaintiffs for proceedings held on 03/30/2011 and 10/10/2012 Judge Magistrate Judge Kenneth P. Neiman.. (Lowry, Marcia) (Entered: 12/06/2013)
381 Transcript of Status Conference held on March 30, 2011, before Magistrate Judge Kenneth P. Neiman. COA Case No. 13−2467. The Transcript may be purchased through Judy Bond Gonsalves at 508−984−7003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name: No Reporter Used. Digital Recording transcribed by Judy Bond Gonsalves. Redaction Request due 2/24/2014. Redacted Transcript Deadline set for 3/6/2014. Release of Transcript Restriction set for 5/5/2014. (Scalfani, Deborah) (Entered: 02/03/2014)
382 Transcript of Telephonic Conference Hearing held on October 10, 2012, before Magistrate Judge Kenneth P. Neiman. COA Case No. 13−2467. The Transcript may be purchased through Judy Bond Gonsalves at 508−984−7003, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name: No Reporter Used. Digital Recording transcribed by Judy Bond Gonsalves. Redaction Request due 2/24/2014. Redacted Transcript Deadline set for 3/6/2014. Release of Transcript Restriction set for 5/5/2014. (Scalfani, Deborah) (Entered: 02/03/2014)
383 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at

Case: 1:10-cv-30073-WGY As of: 02/01/2015 10:36 PM EST 50 of 50

12/15/2014 12/15/2014 01/07/2015

http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/03/2014)
386 OPINION of USCA as to 374 Notice of Appeal filed by All Plaintiffs. (Paine, Matthew) (Entered: 12/16/2014)
387 USCA Judgment as to 374 Notice of Appeal filed by All Plaintiffs. The decision of the district court is affirmed. No costs are awarded. (Paine, Matthew) (Entered: 12/16/2014)
388 MANDATE of USCA as to 374 Notice of Appeal filed by All Plaintiffs. Appeal 374 Terminated (Paine, Matthew) (Entered: 01/08/2015)