..

UNITED STAT~S DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

-----------------------------------------------------------------

~~~~INE B. by he~ next friend

~~be=tBlondis; ALINE H. by ~e= ~ext friend Wesley Scott; ~URICE R. by his next friend

rur_... ,..... O!!t c:DL'lfr

l

FILa)

.

"tJes2.ey Sco~':; JOUG:.AS R. by his ~exc ~=ie~d Wesley Scott;

I.

O'cIa$'

•

:..0FRON a NEDILSKY

CAROLYN D. by her next friend

Cynthia Lepkowski; JAMES B. by

tis ~ext friend Mary Protz;

MINDI D. by her next friend

Sheila M. Smith; ALAN A. by

his next friend Shelia

... ,- ~T

Eill-~oberts; DARREN C. by

his next friend Chris

Vel~etske; ALISSA S. by her

~ex~ f=iend Anne Marie Abell;

?,CXANNE F. by her next f.riend

:shiyemi Adelabu; JOCELYN Z.

by his next friend Jane Moore;

K.~EN M. by her next friend

~~an Zawikowski, individually

a~d on behalf of all others si~ilarly situated,

COMPLAINT 9 3 - C,. Q5 -l ,

Plaintiffs;

vs.

Civil Action No.

TC~1MY G. THOMP SON, in his o:ficial capacity as Gove=nor of the State of i'Ji scans in; GERALD WHITBURN, in his official capacity as Sec=etary of the Department of Health and Social Services
=.of the State of Wisconsin; THOMAS AMENT, in his official ;apacity as the County ~xe~tive of the County of :-:':'lr..;aukee; THOMAS BROPHY, in his ~:ficial capacity as Director of the ~ilwaukee County Department of E\..:~an Services,
Defendants.

,.

INTROQUCTION
1. This is a civil rights action on behalf of children who ~ay be or have been abused or neglected and are or should be IC1c',.;n t~ t:-.e Mi :'r,.;a~kee Department of Human Services ("Milwaukee Cc;,;.r:ty Department" or "DHS") and those Ghildren who have been placed in the custody of the Milwaukee County Department. The defendants in this action have systematically denied the plaintiff chiLdren their rights under the United States Constitution, fede=al statutory law, and Wisconsin state law.
2. The child-welfare system in Milwaukee County is in c=isis. Reports of suspected abuse or neglect of child=en are not properly investigated; virtually no services are provided to children and their families so as to avert the unnecessary entry cf children into foster care; planning for children who enter foster care is perfunctory and ineffective, resulting in children spending m'any years in government custody; placements for children are often inappropriate and unsupervised; and services to children and their families that would allow children either to return home or be adopted are grossLy inadequate. Milwaukee County social workers are saddled with dangerously high case loads -- an average of 100 families per worker -- and are poorly ~=ained and supervised. County and state officials long have k~own that the Milwaukee County foster-care system is endangering the children it is supposed to safeguard and is violating federal and state law, yet they have failed to move to protect these children and to cure the legal violations.
2

...
3. The Milwaukee County Department of Human Services and the Wisconsin Department of Health a~d Social Services (Wisconsi~ ~HSS) are the county and state government agencies respons~ble :or performing state and federally mandated functions for children a~ risk of abuse or neglect and for children in foster care.
4. Those functions include, among others, investigating reports of suspected child abuse and neglect in a timely and appropriate manner; providing necessary services to children and :amilies to enable children to remain at home whenever possible and ;=rotecting children who are the subject of such reports; investigating and assessing requests for and referrals to child welfare services; managing cases accepted for service through the development, review, revision and implementation of written case plans; providing appropriate placement, care, and necessary services to children, their families, and foster families; avoiding the unnecessary movement of children among different foster-care placements; reunifying children with their families whenever appropriate; protecting children from harm while in state custody;, ensuring that all children, regardless of handicap or disability, receive the benefits of the state foster care program; and providing children with permanent and stable family relationships either by returning them to their own homes or by providing them with adoptive or other permanent placements.
5. The Wiscons in DHSS is the state agency that rec.ei-v:es a~d disburses federal funding that is provided to the state to
3

aid in the ·administra.eion of its federal and state mandated functions. It is responsible for ensuring that county child ·,.,rel:are agencies, such as Milwaukee County DRS, comply with federal and state mandates.
o. :-!il'N"a·...:kee County DHS is directly responsible for those ~ilwaukee children reported to the agency as being abused and neglected and those children in the Department's physical and/or legal custody and is responsible for ensuring that those children receive the services to which they are entitled under the law.
7. The defendants are systematically depriving Milwaukee c:-"i:dren of their rights under state ·and federal statutory laws and under ehe United States and the Wisconsin Constitutions. The defendants long have been aware of the widespread failures in the Milwaukee child welfare system for which they are responsible and ehe resulting harm to children but have failed to take steps to remedy these violations of law and to halt the consequential damage to children.
8. Public officials repeatedly have gone on record· doc~menting the failures in the Milwaukee foster-care program, which r:evertheless continue and intensify. As one county official responsible for the child welfare system, Sharon Schulz, Ad~inistrator, Youth Services Division of the Milwaukee Couney Department of Health and Human Services, stated publicly on May 4, 1993, "The (child welfare] system does not appear to be ·"crking for any.one." Defendant Thomas Brophy has described the ~ilwaukee foster care situation as being in "a severe crisis
4

state." 9. The Milwaukee DHS's failure to deliver to plaintiffs
and other Milwaukee children the services and protections to which they are entitled is exacerbated by the Wisconsin DHSS' failure to provide the Milwaukee County_child-welfare system with the funding, support, and supervision that it needs to perform its duties adequately. The state has consciously chosen to underfund the operation of Milwaukee's foster-care system, even with the knowledge that services being provided to Milwaukee children are inadequate and that children are being harmed.
10. Milwaukee DHS caseloads are five times those recommended by nationally recognized standards. This prevents Department workers from providing even minimally adequate protection for children and constitutes gross and intentional r:eglect. Hundreds of children receive no caseworker supervisior. at all. Instead, their cases are assigned to a computer for monitoring. Workers do not receive the training or supervision necessary to fulfill the county's legal obligations to the children who are dependent on Milwaukee DHS for protection, supervision, and planning fo·r th.eir future.
11. Planning to insure a permanent placement for children in foster car~ is grossly inadequate. Many children in DHS custody fare little better than they did in the homes from whic~ they were removed.
12. Once children ent.er government custody it. is difficl.1:",: for them to escape without being further damaged by their stay i~
5

. .
scate custody, in which they are moved from one temporary home :0
another and often are neglected by those who removed them from =~eir awn neglectful families. The length of time that Milwaukee children spend in foster care is so high that many children are being permanencly damaged by their prol~nged and unnecessary scays in government custody.
13. Intended as a temporary and benign system to further the best interests of children, the Milwaukee foster-care program has instead become a government system that violates almost all o~ its legal obligations to the children unfortunate enough ta be dependent upon it for their protection and care.
14. The United States and Wisconsin Constitutions require that when the state ~ses its oarens patriae power to take custody of a person for that person's protection, the state is then under an obligation to provide the required protection. The children of Milwaukee County's chaotic foster-care system have no such protection.
15. Two federal laws, the Child Abuse Prevention and Treatment Act and the Adoption Assistance and Child Welfare Act of 1980, prescribe in detail the minimum requirements of the system of care a state is required to provide to children who are the subjects of. reports of abuse or neglect or who enter foster care. The defendants, with full knowledge of the .requirements of these laws, have accepted federal funding and yet have chosen to operate a system that they know, or. should know, is grossly inadequate and far out of compliance with federal law.
6

. .
16. Two other federal laws, the Americans with Disabilities Act and the Rehabilitation Act of 1973, require that a state or co~nty accommodate the special needs of those with disabilities when operating a service system funded in part with federal f~nds. The underfunded and undersupervised foster-care system in Milwaukee County not only fails to accommodate the special needs of children with disabilities or handicaps, it actively exacerbates those conditions through the neglect and abuse to which these children are exposed in the foster-care system.
17. Not only does the failing child-welfare system in ~i2..',.;aukee Coum:y violate federal constitutional and statutory law, it also violate state laws. The Wisconsin Children's Code requires the Department to assess the risk of harm to children referred to it for protection in a timely fashion; to develop a plan of care designed to meet the needs of the child and family; to implement that plan in the least restrictive environment; and to deliver those services needed for the protection of the child, ~he reunification of the family, or the placement of the child with another permanent family. The Wisconsin Constitution states -:hat no person shall have a right without a remedy, yet Milwaukee County DHS consistently denies children and families the rights granted in the Children's Code and leaves them no recourse.
JURISDICT!ON AND VENUE
18. This is an action pursuant to section 1983 of'title 42 of the United States Code alleging violations of federal statutes
7

and the United States Constitution as well as violations of s~a~e ~aw. The district court has jurisdict:on over the federal claims p~=s'uant to sections 1331 and 1343 (a) (3) of ~i.':le 28 of the united States Code and has pendent jurisdiction over the state
c 2.a'::r~s .
19. Venue in this district is proper pursuant to section 1391(b) of title 28 of the United States Code because the claims arise in the district.
CLASS AC7ION ALLEGATIONS
20. This acti.cn is properly maintained as a class actio:1 pursuant to Rule 23 (b) (2) of the Federal Rules of Civil Procedure.
21. The plaintiff class includes the nearly 5000 children who, as the result of abuse or neglect or as the result of the:'= parents voluntarily placing them in foster care, are in the legal and/or physical custody of the Milwaukee County DHS. The plaintiff class also includes those additional Milwaukee childre:1 who are or should be known to the Department as the result of suspected, abuse or neqlect.
22. The named plaintiffs are adequate representatives of the class. The violations of law alleged by the named plaintiff children are typical and representative of violations of law t:-.a:. pervade Milwaukee's child-welfare system. In addition the har~s suffered by' the; named plaintiffs are' typical of the harms, suffered by the class members.
8

23. The questions of law and fact common to the class
~nclude: (1) whether the defendants are responsible for a child~el~are system that conducts inadequate investigations of child abuse or neglect; (2) whether the defendants fail to protect c~ild=en repcrced for abuse and neglect~ (3) whether the defendants have implemented a preplacement preventive service program designed to help children remain with their families i~stead of entering foster care; (4) whether the defendants fail ~~ provide appropriate placements and proper care to the children in t~ei= custody; (5) whether the defendants fail to create and i~plement appropriate plans for children to assure their proper care and permanent placement; (6) whether the defendants fail to offer necessary services to handicapped children to enable them to participate fully and receive the benefits of the state's foster car.e program; (7) whether the defendants' actions and inactions violate the plaintiffs' rights under the federal Adoption Assistance and Child Welfare Act of 1980; (8) whether the defendants' actions and inactions violate the plaintiffs' rights under the federal Child Abuse Prevention and Treatment Act; (9) whether the defendants' actions and inactions violate the plaintiffs' rights under the Fourteenth Amendment to the ~nited States Constitution; (10) whether the defendants' actions and inactions violate the plaintiffs rights under the Americans ~ith Disabilities Act and the Rehabilitation Act of 1973; and (11) whether the defendants' actions and inactions violate the plaintiffs' rights under the Wisconsin Constitution, statutes,
9

a:1d foster "care regulations. 24. The named plaintiffs will fairly and adequately protec~
~~e ~nterests of the class. The named plaintiffs are represented by att.orneys employed by the Children's Rights Project of the fuuerica:1 Civil Liberties Union Foundation, a privat.ely funded, ~at.ional organization with extensive experience in complex classaction, child-welfare litigation and by an attorney who is employed by the American Civil Liberties Union Foundation of Wisconsin and who has litigation experience and familiarity wit.h Wisconsin and federal law and practice. Counsel have the resources, expertise, and experi€nce to prosecute t.his action. Plaint.iffs appear by next friends who are state-court. at.torneys, social workers for those attorneys, or responsible and respected Wisconsin citizens. Co~nsel for the plaintiffs know of no conflicts among members of the class.
PARTIES The Named Plaintiffs 25. Plaintiff JEANINE B is a twelve-year-old child who has been in the custody of Milwaukee DHS for six years. 26. Plaintiff Jeanine 8 appears by her next friend ROBERT BLONDIS. Mr. Blondis is an attorney who has practiced in ~ilwaukee for over twenty years and who has extensive experience representing children in the Milwaukee foster-care system. 27. Plaintiff ALINE H is a twelve-year old girl who has been in DRS cus.tody since May 1988; her brothers plaintiffs DOUGLAS R and MAURICE R are eight and six and have been in
10

custody since July 1988. 28.. Plaintiffs Aline H, Douglas R, and Maurice R appear by
:~e~r next friend WESLEY SC077. Mr. Scoct is a former Director of the Milwaukee Urban League and of the Social Development C::mrnission, agencies that provide services to disadvantageC: youth.
29. Plaintiff CAROLYN D is a five-year-old girl who has been in the custody of Milwaukee County DHS for two years.
30. Plaintiff Carolyn D appears by her next friend CYNTHIA A. LE?KOWSKI. Ms. Lepkowski is the court-appointed attorney for Carolyn D in the Milwaukee County Children's Court.
31. Plaintiff JAMES B is an eight-year-old boy who has been in t~e custody of Milwaukee County DHS since shortly after he was born.
32. Plaintiff James B appears by his next friend MARY PROTZ. Ms. Protz has served as the social worker for the court:appointed attorney for James B in the Milwaukee County Children's Court.
33. Plaintiff MIND! 0 is a twelve-year-old girl who has been in the custody of Milwaukee County OKS since she was eleven months old.
34. Plaintiff Mindi 0 appears by her next friend SHEILA ~. SMITH. Ms. Smith is an attorney who has extensive experience representing children in foster care in Milwaukee.
35. Plaintiff ALAN A is a ten-year-old boy who has been in :he custody of Milwaukee Cou·nty ORS since 1988.
11

36. Plaintiff Alan A appe~rs by his next friend SHELIA E!LL-ROBERTS. Ms. Roberts has served as the court-appointed a::~rney for Alan A in the Milwaukee County Children's Court.
37. Plaintiff DARREN C is a two-year-old boy who has been :~ :~e c~s:~dy of Milwaukee County DHS since he was five months ·::)ld.
38. Plaintiffs Darren C appears by his next friend CHRIS VELNETSKE. Mr. Velnetske has served as the court-appointed attorney for Darren C in the Milwaukee County Children's Court since October 1991.
39. Plaintiff ALISSA S is eight years old and has been i~ the custody of Milwaukee County DHS for six and one-half years.
40. Plaintiff Alissa S appears by her next friend ANNE MARIE ABELL. Ms. Abell has served as the court-appointed attorney for Alissa S in the Milwaukee County Children's Court.
41. Plaintiff ROXANNE F is a seven-year-old girl who has been in the custody of Milwaukee County DHS since October 1987.
42. Plaintiff Roxanne F appears by her next friend JULIA VOS?ER. Ms. Vosper has served as the court-appointed attorney ?,oxanne F in t·he Milwaukee County Children's Court.
43. PATRICIA S is a nine-year old girl who has been in Milwaukee foster-care custody since October 1989.
44. plaintiff Patricia S appears by her next friend OSH!YEMI ADELABU. Mr. Adelabu is the President of the Milwaukee
Biack Firefighters Association and i·s a co-founder of the
~ilwaukee branch of 100 Black Men. His work with children has
12

been recognized in the media and includes his activities with Planned Parenthood teen peer counselors.
45. Plaintiffs JOCELYN and DERRICK Z are a brother and sister who are eight and six years old, respectively and who crigi~ally e~tered foster care in February 1987.
46. Plaintiffs Jocelyn and Derrick Z appear by their next friend JANE MOORE. Ms. Moore has served as the social worker for the court-appointed attorney for Jocelyn and Derrick in the Milwaukee County Children's Court.
47. Plaintiff KAREN M is a sixteen-year-old girl who has bee~ in Milwaukee DHS custody since February 1992.
48. Plaintiff Karen M appears by her next friend JOAN ZAWIKOWSKI. Ms. Zawikowski has served as Karen's court-appointed at~orney in the Milwaukee County Children's Court.
Defendants
49. TOMMY G. THOMPSON is sued in his official capacity as the governor of the State of Wisconsin. Governor Thompson is responsible for ensuring that government agencies in the state operate in. compliance with applicable provisions of stat.e. and federal law.
50. GERALD WHITEURN is sued in his official capacity as the Secretary of the. Wisconsin Department of Health and Social Services. Gerald Whitburn is responsible for the policies, practices, and operation of social services agencies in the sta~e and for ensuring compliance by those agencies with applicable provisions of state and federal law.
13

51 . F-; THOMAS AMENT is sued in hi s 0 ff ic ial capac i ty as t!".e Co~nty Executive of the County of Milwaukee. F. Thomas Ament is =es?onsible for ensuring compliance with applicable provisions of s~ace and federal law by all government agencies within the
cou:'.~y.
52. THOMAS BROPHY is sued in his official capacity as Di=ector of the Milwaukee County Department of Human Services. Mr. Brophy is responsible for the policies, practices, and operation of t~e Milwaukee County Department of Human Services and for ensuring compliance by the Department with applicable provisions of state and federal law.
APPLICABLE STATUTES
53. In addition to alleging that the defendants are violating their constitutional rights, the plaintiff children allege that defendants are violating federal and state statutory r~ghts. The federal rights arise under the federal Adoption Assistance and Child Welfare Act of 1980 ("Adoption Assistance Act") (codified as amended at 42 U.S.C. §§ 670-679a and 42 U.S.C. §§ 620-628); the federal Child Abuse Prevention and Treatment Ac': ("C~ild Abuse Act") (codified as amended at 42 U.S.C. §§ 51015106a); the Americans with Disabilities Act ("ADA) (codified at 42 U.S.C. §§ 12121-12150); and the Rehabilitation Act of 1973 ("Rehabilitation Act") (codified at 29 U.S.C. § 794). The ?laintiff ch.ildren also allege that defendants a.re depriving them of state law entitlements created by the Wisconsin Children'S
14

Code (codified as amended at Wis. Stats. §§ 48.01-48.995 (1992); Wis. Admin. Code §§ HAA 42.01-42.06 (May 1992); 49.01-49.08 (June :'989); 50.01-50.10 (September 1992); 52.01-52.55 (October 1988); 54.01-54.04 (June 1986); 56.01-56.10 (August 1990); 57.01-57.08, 59.Cl-59.07 (June 1986); 65.01-65.08 (January 1987)); and by the Wisconsin Constitution.
54. The federal Adoption Assistance Act requires that there be a preplacement preventive service program designed to help children remain with their families; that all children in foster care have written case plans developed and reviewed within specified time periods; that these plans contain specified elements; that there be a service program designed to help children, where appropriate, return to their families or be placed in adoptive or other permanent homes; that appropriate services be provided to children, their parents, and their fos':e:parents to address each child's needs and to assure each child's permanent placement; that each child receive proper care; that the homes or institutions in which children are placed conform ~ational standards and that foster care payments are appropriate; that children be placed in the le'ast restrictive, most familylike setting; that children receive periodic judicial or administrative reviews; and that there be an adequate informa':is~ system.
55. The federal Child Abuse Prevention and Treatment Ac~
requires that prompt investigation's be initiated into report.s 0:
abuse and neglect and that appropriate steps be taken to protect
15

children who are the subjects.of such reports. The Act also requires that the governmental agency responsible for i.:--.vest:igating complaints of abuse or neglect have in place ~:rocedures, personnel, and facilities adequate to "deal effectively '.... ith child abuse and neglect cases. It
56. The Americans with Disabilities Act and section 504 of :he Rehabilitation Act prohibit discrimination against ~andicapped individuals in federally funded programs and require chat federally funded programs such as child welfare and foster care administer services and programs so as to enable those c=-_i.ldren with handicaps, including physical and emotional handicaps, to participate fully and receive the benefits of such programs.
57. Wisconsin law imposes specific obligations on the defendants concerning the plaintiffs and the members of their class. The explicit legislative purpose of the Wisconsin Children's Code is to "provide for the care, protection and wholesome mental and physical development of children, preserving :he unity of the family whenever possible," to "respond to children's needs for care and treatment through community-based programs," "to promote the adoption of children into stable families rather than allowing children to remain in the i.mpermanence of foster care," "to provide children.. with permanent and stable family relationships," "to allow for termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued
16

'and termination of parental rights is in the best interest of the child," 'and to ensure that "[tlhe best interest of the child shali always be of paramount consideration." The code contains specific mandates governing the manner and time periods in which abuse and neglect reports should be invescigated; the services that must be provided to children and families to avoid the need for foster care placement; the timing and content of written "permanency plans" that must be developed for children; the evaluations necessary to determine appropriate placements; mandated time periods for the provision of medical care; time periGds and processes for ensuring adoption for children; and detailed procedures and standards for the licensing and supervision of placements. Finally, state law provides for hearings within twenty-four hours of a child being taken into custody and for dispositional and extension of placement hear.i.ags before the Children's Court. GENERAL FACTUAL ALLEGATIONS Named Plaintiffs
58. Plaintiff JEANINE B is a twelve-year-old girl who has been in Milwaukee D~S c~stody for six years. Jeanine was reported to the Department in 1986, based on her mother's neglect a~d the possibility that her mother's boyfriend was sexually abusing her. After being moved among relatives and briefly returning to her mother's care, Jeanine was placed by the 1Jepartme'nt with her grandmo,ther in October 19'86. Jeanine was placed in foster care in June 1988, when her grandmother moved to
17

Puerto Rico"and indicated that she was no longer willing to care for her granddaughter.
59. Although Jeanine has bee~ ex?erienc:~g :ncreasing emotional problems, Milwaukee DHS has failed to do necessary eval~ac:~~s cr assessments to determine the causes of those emotional problems or to develop a plan to treat those problems. Indeed, the language of Jeanine's plans from one year to the next :5 virtually identical.
60. The Depart~ent has long been aware that Jeanine has special needs because of her emotional problems and disabilities but tas failed co place her in an appropriate foster home thao: can address those needs or provide her with necessary supervision and services. Since she has been in Milwaukee DHS custody, Jeanine has been in six different foster homes.
61. In one of her foster homes, she was placed by Milwau~ee DES with a family that was responsible for twelve children, six of whom attended a day-care program in the home. In November 1989 this foster father struck Jeanine with a plastic container and stitches were necessary to close the wound. The foster mother referred to the then ten-year-old Jeanine as a "whore."
62. In July 1990 Jeanine's therapist expressed concerns that Jeanine was regressing in her current foster home placement and warned that "current conditions at the foster home are unacceptable" and that Jeanine was in need of a treatment foster home. At. t.his t.ime, however, Milwaukee DRS made no efforts to locate a t.reat.ment foster home to meet her needs nor to find an
18

adoptive.h6~e for her~ even though the Department's goal for her ~as adoption. Jeanine remained in that fester home for another :: ·..-JO years.
63. Jeanine is now living in her sixth temporary foster
~cme.
64. During at least part of the time Jeanine has been the responsibility of Milwaukee DHS there has been no worker assigned to handle her case, to supervise her placement, or to plan for ::er.
65. Milwaukee DRS, which has not known the whereabouts of :ea~:ne's mother for most of the time Jeanine as been in foster care, reported in 1989 that Ms. B had a serious drug and alcohol problem and had never followed through on a drug treatment program. Nevertheless, their goal for Jeanine in 1989 was to :::-eturn her to her mother's custody. Milwaukee DRS did not have any conc:::-ete plans for how this goal was to be accomplished or ~hat :::-esponsibility DHS would take in implementing plans to achiev~ this goal.
66. In 1990 the DHS goal for Jeanine was to have parental rights terminated so that she could be adopted. That goal has :::-emained the same in Milwaukee DRS'S 1991, 1992, and 1993 plans. Cespite this, Milwaukee DHS has never tried to locate an adoptive ~cme for her.
67. In the 1992 plan DHS reported "The taget [sic] date fo:::achieving this plan is March 26., 1993. At this time we hav.e no.t found major obstacles for achieving this plan for the target
19

date." 68. In 1993 DHS reported, "The target date for achieving
:~is plan is March 26, 1994. At this time we have not found major obstacles for achieving this plan tor the target date."
69. ~ilwau~ee DHS has still failed to seek a court order terminating parental rights for Jeanine or to find a permanent adoptive home for her.
70. The defendants have violated Jeanine's constitutional and statutory rights by failing to protect her from harm and t8 provide her with proper care, by failing to develop and impleme~~ a case plan that contains the elements required by law, by failing to obtain and supervise an appropriate placement for her, by moving her from one foster home to another, and by failing to take ·steps to assure her a permanent placement.
71. Because of the defendants' actions and inactions, Jeanine B has been and continues to be irreparably harmed, to grow up without a permanent family, to be subjected to the uncertainty of foster care status, and to be deprived of an opportunity for healthy development and a normal childhood.
72. Plaintiff ALINE H is a twelve-year old girl who has bee:', in DHS custody since May 1988; her brothers plaintiffs DOUGLAS ~ and MAURICE R are eight and six and have been in custody since July 1988. At the time they entered foster care, Aline was seven, Maurice was three, and Douglas was eighteen months old.
73. Aline, Douglas, and Maurice enter.ed Department custo.dy after they were physically and sexually abused in the horne of
20

their mothe-t. At ti'.e time of. the abuse, the Department had

c~stody of their sister Caroline. Despite the fact that the

:epartment thus knew or should have knewn of Aline, Douglas, and

Maurice, it failed to protect these children from the abuse they

suffered, which has resulted in serious emotional trauma for

these children.

74. In March 1988 the Department learned that Aline had been

missing from school since November 6, 1987. According to an

i~ternal Department document, a Department social worker met with

school officials on March 14, 1988, about the problem. The

worker then visited the children's home, as a result of which the

worker reported on March 16, 1988, "I did substantiate this as a

case of neglect."

75. Two months later the Department received new reports of

suspected neglect. of the children. At that time, Aline had st.::":'l

not returned to school, and the Department had failed to follow

~p on the March 1988 substantiated neglect. According to a

petition filed on May 27, 1988, Department workers visited 'the

children's house on May 24, 1988, and "smelled an odor of urine,

mustiness, and dirt. " The report continued, "[TJhe kitchen ['Nas;

cluttered with dirty dishes, old food, and numerous debris on all

of the availab~e counter space and table top. .

Upon openi~g

the refrigerator, they found some juice and some fresh milk but

ether than than [sic] there was vegetables and old food with mold

dried on it and a dead roach lying on top of one o'f the pans· in

the refrigerator.

Mr. B (the DHS social worker] reports tha:

21

in early March upon doing the horne visit at that time, he cbserved two bedrooms and in each there was a mattress on the
::"ccr:."
76. Following the May 1988 visit, the Department sought and obtained c~scody of Aline. At the same time Maurice and Douglas =emained in the home.
77. Two months later a Department worker returned to the heme in which Maurice and Douglas were still living. According to a Departmenc report, the visiting worker, on July 28, 1988, "four:d the conditions to the home [sic] to be unchanged and, in fact, had deteriorated." Specifically, the electricity had been ~~t off, something about which the Department knew but had done r:othing to correct. Maurice and Douglas were then removed from t~ei= mother without the Department having offered or provided any services to the mothe>r.
78. ~ince they entered the Department's custody, Aline,
Mau=ice, and Douglas have been aSSigned to three different
workers. The frequent change of workers has disrupted permanency planning for these children and has resulted in unnecessary and harmful delays in obtaining permanent homes for them.
79. Maurice, who is experiencing progressively worse emotional problems, is the in the foster horne of Mrs. R. Mrs. R, who lives outside of Milwaukee County, informed the Department many years ago that she would like to adopt Maurice and recently told the Department that: she would move to Milw~ukee County to assure that he receives the special education he needs; she even
22

has gone safar as to. purchase real estate in Milwaukee County so t~at she could enroll Maurice in special-education classes. However, in April 1992, the Department changed Maurice's planni~g goal to long-term foster care, and it has refused to take any steps t~at would permit Mrs. R to adopt this eight-year-old boy.
80. Aline and Douglas are in the foster horne of Mrs. G, who is the daughter of Maurice's foster mother. Mrs. G. has informed the Department that she would like to adopt Aline and Maurice, and the children have told their worker that they would like to be adopted by Mrs. G.
81. Three years ago a Department adoptions worker visited Mrs. G's home. Mrs. G has never heard back from the worker or anyone else about adoption. The Department has refused to proceed with adoption and instead has chosen long-term foster care as the planning goal for these two children.
82. Since at least 1989 Aline's therapist has recommended that Aline be adopted and has recommended that Aline not visit with her mother. Despite this and despite Aline's request that she not visit with her mother, the Department has forced Aline to continue freque'n't visitation with her mother.
83. Maurice and Douglas are both experiencing serious behavioral problems, many of which are attributable to the abuse and neglect they suffered in their mother's home. Even though adoptive placements are available for these children, the Ce.partment: has refused t.o make eff.orts to allow these children t.O be adopted because of their disabilities.
23

84. Because of the Department's failure to take timely and meaningful steps towards having these children adopted, Aline, ~aur~ce, and Douglas are being deprived of being their opportunity of being adopted and instead are at risk of becoming long-term war~s of the state.
85. The defendants have violated the constitutional and statutory rights of Aline, Maurice, and Douglas by failing to protect these children from abuse or neglect, by failing to ~rovide preventive services that might have averted their entry i~to roster care, by failing to develop and implement a case plan chat contains the elements required by law, by failing to provide planning and services to these children that would permit them to be placed in a permanent adoptive home, and by denying Maurice and Douglas of government benefits because of their disabilities. As a result of the defendants' actions and inactions, these children have been and are being irreparably harmed.
86. Because of the defendants' actions and inactions, Aline, Maurice, and Douglas have been and continue to be irreparably harmed, to grow up without a permanent family, to be subjected to the uncertainty of foster care status, and to be depr~ved of an opportunity for healthy development and normal cl1ildhoods.
87. Plaintiff CAROLYN 0 is a five-year-old girl who entered Department custody in 1991 and remains in custody to date.
88. She and her brother Stewart, who is four, have: bee.ntt-~e subject of several neglect reports. At least one of those
24

:-eports was· substantiated in May 1991. The Department worker who ir.vestigated the case determined that the 0 family home was ~il~~y, as were the children, that there was an absence of adequate food in the home, and that Stewart, a child with serious ".edical problems, was not being taken to scheduled rehabilitative ~reatment sessions.
89. Milwaukee DHS made these determinations, yet left the 0 children in their parents' home and made inadequate efforts to provide services to the 0 family so that the neglect would not continue.
90. After the death of Mr. 0 in July 1991, Ms. 0 moved Carolyn and Stewart to another family's home, in which the man had a history of substance abuse and violence toward his wife and children. This family was under a court order of supervision related to the man's physical abuse o.f a child.
91. In August 1991 a DHS worker visited Ms. D at this home to assess what medical services the children were receiving, and to investigate why Stewart's attendance at rehabilitative therapy was so infrequent. In October 1991 the Department removed Carolyn and Stewart from Ms. D's custody under a neglect petitic~ and placed them in the home of a paternal aunt.
92. In ~eptember 1992 Carolyn was moved into a new foster home with a Milwaukee DHS foster parent because her paternal aunt, the original caretaker, felt she could not adequately address the special needs. of ·bo'ch C.aroly,n and: Stewart while caring for her own two children. Although Carolyn was removed
25

from her aurit's home, Stewart .was not moved and lives there at the present time. The children see each other at occasional ~a~ily gatherings, but visits between these two children are never arranged by Milwaukee DHS.
93. Carolyn suffers from asthma, ftnd it is suspected that she is developmentally delayed.
94. Regular, separate visitation is scheduled between Ms. D and Carolyn once a week. Carolyn stays overnight on weekends in her mother's home where Ms. D's live-in boyfriend, a man with
a substantial criminal record who was released from the House 0:
correction in the fall of 1992, also resides. No Department worker has supervised any of Carolyn's visits in Ms. D's home. Carolyn recently stated that, during one home visit, she and her mother were locked out of the house with no money by the mother's live-in boyfriend. Ms. 0 was recently evicted and has moved tJ a Dew residence, which the Department has not inspected.
95. Carolyn becomes upset and hostile and regresses into bed-wetting after visits with her mother. After the DHS worker increased visitation to weekend overnights in April 1993, Carolyn suddenly began displaying sexually inappropriate behavior. May 1993 this five-year old child displayed her genitals to her religious school classmates and spread her legs in the presence ~F an adult male saying "kiss my pee-pee."
96. Carolyn has told her foster mother that she no longer wis.hes to spend w.eekends with her mother.· Milwaukee DRS has done nothing to address this problem. Nor has the Department made any
26

individualized assessment of what kind of support and services Ms. D needs to be able to provide adequate care for her children to ease Carolyn's transition back into Ms. D's horne or to determine whether MS. D can provide adequate care for Carolyn if she is ret.ur."ned.
97. The Milwaukee DHS plan ~or Carolyn is to return her to Ms. D, but Department workers have done nothing to help Ms. D address the problems that led to the neglect of her children or that would enable them to return to her care.
98. Milwaukee DHS's neglect of this case has been so noteworthy that en February 24, 1993, a Children's Cour~ judge directed Milwaukee DHS to turn the case over to a private agency. However, Milwaukee DHS has failed to follow through on the transfer, has failed to provide services itself, and has failed to schedule Carolyn's court-ordered reevaluation and testing.
99. Although on February 24, 1993, the judge ordered Carolyn returned to he~ mother within six months, Milwaukee DHS has failed to provide the necessary reunification services or to arrange that the services be provided so that Ms. D will be able to provide adequate care to her children, has failed to address Carolyn's problems, and to determine the circumstances of Ms. D's present living.situation and whether it is harmful to the children.
100. The Department's current permanency goal for Carolyn is "return home," but the- Department ha-s failed to assess whethe-r such a plan is realistic and feasible, has failed to determine
27

the services and steps necessary to accomplish this goal, or set any realistic timetable in which to determine whether this goal can be accomplished or whether another permanent goal is in Carolyn's best interests.
lOl. 7he defendants have violated Carolyn's constitutional and statutory rights by failing to make reasonable efforts to avoid the need for foster care placement or to provide services necessary to reunify Carolyn with her mother, by failing to protect Carolyn from harm and to provide her with proper care, by failing to develop and implement a case plan that contains the elements required by la'''', and by failing to take st'eps to assure Carolyn a permanent, appropriate placement, with her mother if possible and appropriate, and with another permanent family if she cannot be returned to her mother.
102. Because of the defendants' actions and inactions, Carolyn D has been and continues to be irreparably harmed, to grow up without a permanent family, to be subjected to the ~ncertainty of foster care status, and to be deprived of an opportunity for healthy development and a normal childhood.
103. Plaintiff JAMES B is an eight-year-old boy who has bee:,. in Milwaukee DHS custody since shortly after he was born.
104. James's mother is a woman who has grown up in foster care. James was taken into custody when his mother had to be hospitalized at a mental health center shortly after his birth. The child was returned to her for five months and then returned to foster care in January 1986 because his mother was unable to
28

provide adequate care. for him. 105. James's mother told Milwaukee DHS in 1986, after James
~eencered foster care, that she might not ever be able to care for him and that she wanted him to have a good permanent home. Ra~her ~han ~a~ingany steps to resolve the situation, Milwaukee DHS waited for James's mother to make up her mind.
106. In 1987 Milwaukee DHS noted that Ms. B's psychological condition was deteriorating and that she was still vacillating a~out whether she wanted to ever have James returned. However, Mi:waukee DHS did not provid~ any services to Ms. B to enable her ::0 resume cusccdy of James. Nor did it act when James's foster ~arencs expressed incerest in adopting him. The Department's goal for James at that time was nevertheless to be returned to h~s mother, although the Department noted that "the Department will be ser.iously considering changing this plan t.o terminat.ion c: parenta~ rights and adoption of the child if the natural ~cther does not make any progress in the near future."
107. In 1988 the Milwaukee DHS changed James's plan to adoption but noted that action to terminate parental rights had ::een delayed "because of changing circumstances'."
108. Although Ms. B.'s mental health problems remained serious, the Department's goal was changed to return home in 1389, after she married, even though she and her new husband, who was known to have violent behavior, had been repeatedly evicted from t.heir horne. The Department worker stated that James's plan was changed in part because the worker felt "she has not had
29

enough personal contact and data to successful [sic) gain a TPR at this time."
109. When Ms. B changed her mind again in 1990, and told Milwaukee DHS that she wanted to surrender James for adoption, c~e :epart~ent decided that Ms. B might not understand the implications of a voluntary surrender and that the Department's "next course of action would be possible involuntary TPR." A psychological report prepared at that time concluded that Ms. 8 did not have "sufficient emotional resources with which to meet che responsibilities of parenthood." In 1987, however, Ms. 8 gave birth to a child in Florida for whom her parental rights were immediately terminated.
110. Nevertheless, the Milwaukee DHS continued to arrange visits between Ms. B and James, even though Ms. B had once kidnapped the child from foster care and taken him out of state. Visitation has been sporadic and James's behavior after visits with his mother has been aggressive and agitated.
111. James has reacted so negatively to overnight visits with his mother that those visits have been stopped by the Department. The visits have been increasingly painful for James, who started to shake when questioned about them because of fear that he might be returned to Ms. 8, whom this eight-year-old bei' ~as stated he does not really believe to be his mother.
112. Throughout 1991 and 1992 Milwaukee DHS continued to maintain a plan to have James freed for adoption and placed in a:". adoptive home but continued to fail to act on this plan. To :~:s
30

date, Milwatikee DRS has still .failed to implement its plan to have this child adopted, has not yet referred him to the Adoption ~ni~, rior has a petition for terminatiQn of parental rights been filed.
113. James continues to have visits with Ms. B that are painful and upsetting to him and he is fearful about these visits and about his future.
114. James has lived with the same foster parents during ~ost of· the time he has been in Milwaukee DHS custody. However, this child receives only marginal care in the home, which is c~aotic. There are five other children in the home, including :~ur foster children, and James receives little attention and affection. Many different foster children have been in and out of this home, and one foster child has died. James has not received regular medical or dental care. The foster family is n~ longer interested in adopting James because of his family history of mental illness and alcoholism, and it is not likely that this would have ever been an appropriate adoptive home for him in any case.
115. This eight-year-old child is an essentially normal child who has been deprived of a loving, stable family relationship ~olely because of the Milwaukee DHS' own indeciSion
:n the face of Ms. B's vacillation, the constant changes in
Depar:rnent social workers assigned to his case, and the Department's failure to act on its own plans. Meanwhile, James is continuing to suffer the pain, uncertainty, and continuing
31

damage caused by Milwaukee DHS' inaction and from the unsuitability and transience in his foster home.
116. The defendants have violated James's constitutional and statutory rights by failing to protect him from harm and to provide hi~ ~i=h proper care, by failing to develop and implement a case plan that contains the elements required by law, by failing to obtain and supervise an appropriate placement for him, a~d by failing to take steps to assure him a permanent placement.
117. Because of the defendants' actions.and inactions, ~ames B has been and continues to be irreparably harmed, to grow ~p without a permanent family, to be subjected to the uncertai~ty of foster care status, and to be deprived of an opportunity for healthy development and a normal childhood.
118. Plaintiff MINDI 0, who is twelve years old, has been in foster care since she was eleven months old. She was placed with Milwaukee OHS after her mother tried to give her away to a man in a furniture store.
119. Mindi's mother has seen her only twice during the time that Mindi has been in foster care, in 1982 and 1983. Ms. 0 is presently serving a lengthy prison sente'nce.
120. Since shortly after Mindi entered foster care, Milwaukee DHS' plan for this child had been termination of parental rights and adoption although DHS has not taken necessary steps to implement this plan.
121. Milwaukee DHS reported in 1983 that termination proceedings might be initiated the following year, and this
32

s~atement was repeated in 1984. In 1985 the Department reported t~at termination proceedings tad been initiated, a statement that was repeated in 1985, 1986, 1987, 1988, and 1989. In 1990 the Department reported that the permanent plan for Mindi was termination of parental rights and that Milwaukee DRS was arranging for termination on an ongoing basis. In 1991 the Department again reported that the permanent plan for Hindi was termination of parental rights and adoption and indicated that several obstacles had prevented Milwaukee DHS from achieving t~is geal, although there was no explanation as to the nature of t~e obstacles. Th'e 1992 report from the Department contained identical language as that in the 1991 report. The Department's 1993 report contains absolutely no mention of the permanent plan for Mindi.
122. When she entered foster care, ~indi, who is Af.rican~~erican, was placed by Milwaukee DHS with a foster family who is white. They have provided good care for her and for the first several years after Mindi was placed with them made clear to Milwaukee DHS that they were interested in adopting her. In 1987 Milwaukee 'DRS told the fost·er fam·ily t'hat they would not be considered as adoptive parents for Mindi. The Milwaukee DHS adoption worker stated that since the foster parents had adopted o~her children, the worker wanted Mindi adopted by someone who had never had the opportunity to adopt a child.
123. In addition Milwaukee DHS had a policy of. discouraging trans-racial adoptions. Neverthaless, the Department failed
33

either co s-eek or to secure an African-American adoptive family for Mindi. Instead, the Department left her with her white faster parents for eleven years. She is now deeply attached to these parents who are the only family she has ever known. Howeve=, che family is no longer interested in adopting Mindi. ~hey have stated that several of their family members are prejudiced and strongly object to the adoption. In addition, they are concerned about the behavioral problems that Mindi is new exhibiting and are fearful that these problems will increase in severity. Under these circumstances, they no longer wish to make a permanenc corr~it~ent to this child.
124. Mindi is now exhibiting behavioral problems that are interfering with her schooling. She is very frightened about her ~ncercain status and with whom she will grow up. Her mother has asked t.o visit Mindi and, because parental rights have never bee:'! terminated, Ms. 0 pressed her request. Visitation has been =efused thus far, based on psychological evaluations of both the mot.her and of Mindi.
125. Although Mindi is a bright Child, her l.Q. score has been dropping, and a psychological report in 1990 described her as a very vulnerable and fragile child. The report noted that her learning p~oblem "revolves around the child's knowledge of che potential, at some point in the future, for her to lose the ~ost. =udimentary underpinnings of her emotional stability, the bas ic availability of her 'mo.ther' and her I father,'" her current. f·:ster parents.
34

126. On the one hand, Milwaukee DHS refused to provide a

permanent adoptive placement for this child because the child and

t~e foster parents were of different races. On the other hand

the Department failed to provide an alternative same-race family

for

and allowed the child to form a parent-child

relationship with her foster family.

127. Mindi has already been severely emotionally damaged

because of the impermanence in her life and continues to be

damaged by Milwaukee DHS's failure to implement a satisfactory

permanent plan for her.

128. Defendants have violated Mindi's constitu'tional and

statutory rights by failing to protect her from harm and to

provide her with proper care, by failing to develop and implement

a case plan that contains the elements required by law, by

faLling to take steps to. assure he.r. a permanent. placement., ar.d by'

depriving her an adoptive home solely because of her race.

129. Because of the defendants' actions and inactions,

Mindi D has been and continues to be irreparably harmed, to grow

up without a permanent family, to be subjected to the uncertainty

of foster care status, and to be deprived of an opportunity for

healthy development and a normal childhood.

130. Plaintiff ALAN A will be 10 years old in June 1993.

He was placed in foster care custody in December 1988 in Waukesha

County when his mother disappeared on New Year's Eve. The case

-;.was transferred to Milwaukee.County because Alan's mot.her resided.

primarily in Milwaukee County.

35

131. In July 199.1 the Children's Court ordered that Alan participate in therapy with a specific therapist, who should also make. a recommendation about Alan's future visits with his mother.
132. In November 1992 the Department returned Alan to his mother's home.
133. After Alan was returned to his mother in November 1992, Milwaukee DHS did not supervise the home or provide services to Alan or the A family to ensure that Alan was receiving proper care, was adjusting to his reunification with his mother, and was not in danger of further neglect or ~buse. 134. In January 1993 the ~HS worker responsibl~ for this case, who had failed to follow-up after Alan was returned to his mother, was notified that Alan's mother had attended only one appointment for family therapy in November 1992, had missed appointments in December 1992 and January 1993, and had not scheduled any further appointments. The worker took no action u,; response to this information. 135. Had a Department worker properly supervised Alan's return to his mother's custody, the worker would have learned that Ms. A was not arranging therapy for Alan as required by the court, that Alan's 16-year-old sibling, Allison A, and his motr.er's live-i,n boyfriend, Dwight H, were residing in the home, that Ms. A was not participating in required AODA counseling, that she had been evicted from two different residences in the ?ast year, and that she was to be evicted from her present residence on Ma:rch 31, 1993.
36

136. In February 1993 Ms. A was arrested for forgery and "uttering." Subsequent to her arrest, her Probation Officer p:aced a "hold" on her because of the pending charges and because she had tested positive for drug use. She has been in custody since her arrest and the Division of Corrections is attempting to revoke her probation.
137. After his mother'S arrest, Alan was left in the care of his sister, Allison, and his mother's live-in boyfriend Dwight H. Dwight H had not been investigated by the Department, to ensure that he was a responsible adult capable of caring for the two A children.
138. On March 9, 1993, a child protective service referral indicated that the West Allis Police Department had found that Dwight H. had struck Alan on the right leg with a belt, leaving a two:-inch r-ed mark. He had also. struck Alan on the back with his hand, leaving a hand print.
139. Also on March 9, 1993, Alan's Children's Court guardian ad litem received a report that Alan's mother had been in jail since February, that Alan was being cared for by his sixteen-year-old sister, and that his mother's live-in boyfriend had physically abused him. The guardian ad litem also learned that Allison ha~ been in foster care and had experienced drug and alcohol problems.
140. On March 9 and 10, 1993, the assigned Department casewo.rker and her supervisor. received me.ssaqe.s regarding the lack of a responsible adult caretaker in Alan's home and the
37

allegations of physical abuse: Neither of the Department em~loyees responded to these messages.
l41. A Department intake worker c8Dtac~ed Alan's guardian ad ~~:e~ and told her that he had substantiated the Police :epar~me~~'s referral of Alan's physical abuse and that he had advised the caseworker and her supervisor that he did not believe :hat there was adequate adult supervision in the home while Ms. A ~as in jail. The intake worker stated that the decision to detain Alan was up to the assigned worker.
142. On the afternoon of March 12, 1993, Alan's guardian ad li:em and the Assistant District Attorney on the case informed the Children's Court duty judge of Alan's living situation and of ~ne physical abuse. The duty judge granted a pick-up order regarding both of the children in the home.
143. Altho.,ugh the Department received notice of the pick.-:..:p ~rder on March 12, 1993, Alan was not taken into Department custody until March 16, 1993.
144. Alan was placed by the Milwaukee DHS in a temporary receiving home and remains in that home at the present time. He is not receiving any treatment for the emotional damage he has been experiencing since he was returned to and removed from his mother's custody.
145. The psychologist who had evaluated Alan in 1991 performed another psychological evaluation of Alan on May 12, :'993. During their interview, Alan indicated that since his return home, his mother and sister had been using drugs in the
38

:-.ome and t.hat Dwight had hit him, several times. 146. This psychologist has diagnosed Alan as suffering from
:ysthymia (Depressive Neurosis) and indicated that the outlook for Alan's return to his natural mother was "poor" and "not appr~priate~y the case in the foreseeable future, considering the damage that has already been done to the child by virtue of the natural mother's impact."
147. Alan's maternal grandmother has been accompanying Alan ~~ visits with his mother at the jail since h~r March 1993 i~carceration. D~ring these visits, Ms. A has shown Alan her bruised arms and told him that the bruises were "track marks" resulting from past drug use. Ms. A also described to Alan incidents of oral sex occurring between female inmates in the jail. Alan has been very disturbed by these comments.
148. The Milwaukee OMS worker assigned to AI.an's case received a written report from Alan's guardian ad litem describing the problems encountered during Alan's visits with his ~other. It was requested that any future visitations between Alan and his mother be supervised by the worker because of t~e possibility ofongoinq'psychological harm to Alan. The worker responded by letter that she would be unable to supervise visit.s ber.ween Alan and his mother.
149. The Department's current permanency goal f~r Alan is "return home," but. the Department has failed to assess whether such a plan i.s realist'ic and feasible, has failed to determine the services and steps necessary to accomplish this goal, or se:
39

any realistic timetable in which to determi~e whether this goal can be accomplished or whether another permanent goal is in Alan's best interests.
l50. Defendants have violated Alan's constitutional and s:at~:ery r~;~:s by failing to protect him from harm and to provide him with proper care, by failing to develop and implement a case plan that contains the elements required by law, by failing to obtain and supervise an appropriate placement for hi~, and by failing to take steps to assure him a permanent placerne~: or to provide Alan and his mother with services and supervisio~ necessary t8 enable him to be returned safely to her care.
151. Because of the defendants' actions and inactions, Alan has been and continues to be irreparably harmed, to grew up
without a permanent family, to be subjected to the uncertainty c:
foster care status, and to be deprived of an opportunity for healthy development and a normal childhood.
152. Plaintiff DARREN C is a two-year-old child who was taken into Milwaukee DHS custody in October 1991, when he was five months old. His mother, Leona L, who was sixteen at the time, had left Darren with his maternal grandmother and could be located. The grandmother could not care for Darren because :: her own health problems, and she contacted DHS to take the baby.
153. On March 12, 1992, both Darren and Leona were decla=ed children in need of protection and services due to parental inability to provide necessary care. Mother and son were initially placed together in the same foster home, but Leona was
40

moved to a different foster home sometime in June of 1992. Darren remained in the original foster horne.
154. The Deparcment has established Leona's plan as independent living, and Darren's plan as return home. Although ~arre~ is co =ecurn co his macher's care, che Deparcment has noc provided independent living services for Leona to enable her to establish a home and to live on her own. Leona cannot reunite with her son until she accomplishes this, but she has not been provided with the skills or financial means necessary to do so. Withouc these servi~es, she may never be able to assume custody c~ ·her son Darren.
155. Leona has maintained regular contact with Darren, including overnight weekend visits, and wants to regain custody of her baby. She is attending school and has taken parenting classes required as a condition of having the baby returned t.o her. She has also been employed for the past ten months at a local restaurant. The only court-ordered condition she cannot fulfill is to maintain a suitable residence for two-year-old Da=ren and to demonstrate an ability to manage a household
independently. The Depa'rtment has failed to provide- her with :::e
services necessary to achieve those goals. 156. Leona has turned eighteen, and Milwaukee DHS' cU's:odi'
(;ve:- her has expired. She will remain in her foster 'home um:ii the middle of June 1993, at which point she will be on her own. Leona has asked he.r Milwaukee DRS worker for assistance in finding a place to live, but the worker has refused to help,
41

suggesting that she move in with a relative or friend. Leona Nas never offered independent living services, yet the Department expects her not only to leave her foster home, but also to :~cate, establish, and maintain a suitable home for her two-yearClld chi:'d.
157. Although Leona has a strong desire to make a home for her baby, she is having difficulty preparing to do so, and has not received the necessary support, services and guidance from Milwaukee DHS that will enable her to establish and maintain a ~ousehold so that she can provide proper care and supervision t~ :Jar.ren.
158. Meanwhile, Darren is growing increasingly attached to h~s foster parents and the longer he remains with them the more painful it will be for him to be removed from their care and returned to his mother. Although it is critically important ~Q provid-e services to implement Darren's return home plan as soon as possible to minimize further damage to this child, Milwaukee SHS is not taking any steps to do so.
159. The defendants have violated Darren's constitutional and statutory rights by failing to make reasonable efforts to avoid the need for foster care placement, by failing to protect him from harm by failing to develop and implement a case plan ::-.at contains the elements required by law, and by failing to take steps to reunify him with his natural mother and to assure him a permanent home.
160. Because o~ the defendants' actions and inactions,
42

Darren has been and continues ~o be irreparably harmed, to grow up without a permanent family, to be subjected to the uncertainty 8~ ~~sier care status, and to be deprived of an opportunity for ~eal:~y development and a normal childhood.
161. ?:a~nciff A~rSSA S is eight years old and has been in the Department's cu~tody since January 1987. She and her two siblings were removed from the home of their natural mother because of neglect. Their mother was not providing adequate :ood, supervision, or medical attention for the children.
162. Department workers suspected that Alissa had been sexually ab~sed while in her mother's home.
163. Alissa was placed with the H foster family less than a week a~ter her removal from her mother's home.
164. Yearly court reports for 1987 and 1988 indicate that t::'e Department's permanency plan for Alissa was "return h·ome," although Milwaukee DHS made no efforts to provide services necessary to implement such a plan and had no basis on which to believe that such a plan was realistic or likely to be :mplemented.
165. Ms. S has n:at visited or contacted Alissa since June 1988.
166. In June 1989 the Administrative Review Board changed ~:~ssa's permanency plan to Termination of Parental Rights.
167. In February 1990 the District Attorney's office :-.ctified Alissa's Milwaukee DRS caseworker that her case should be referred for termination of parental rights.
43

168. One year la~er, in February 1991, a Children's Court judge found that the Department had done little to ensure that ~~e ?ermanency plan, established in 1989, was successfully accc~plished. He ordered the Department to provide a written u~date ~n t~e seeps being taken to execute immediately the p~an of termination of parental rights.
169. In response to the judge's order, the Department transferred the S family case to the adoption unit in March 1991.
170. Si~ce 1991 the Cepartment has failed to locate an ad~ptive family for Alissa. It has not yet listed her on any Adcption Exchange, n~= has it eaken any other steps to locate a~ adcptive family for this nine-year-old child. Nor has Milwaukee CHS taken any steps co initiate proceedings to terminate parental rights.
171 .. Alissa currently lives in the H foster home, as she :--.as done for more than five years, and is very attached to her foster parents. However, the H foster parents have never had any interest in adopting Alissa~ Nor does the Department consider the family a suitable adoptive home. Nevertheless, Milwaukee DES tas allowed this child to spend more than five years in this family's home.
172. Alissa has two siblings with whom she has no contact because the children have been in separate foster homes since they were placed in foster care.
173. The def·endants have violaced Alissa's constitutional and statutory rights by failing to protect her from harm and to
44

provide her··with proper care, by failing to develop and implement a case plan that contains the elements required by law, by :a.iling to obtain and supervise an appropriate placement for her, and by failing to take steps to assure her a permanent placement.
174. Because of the defendants' actions and inactions, Alissa S has been and continues to be irreparably harmed, to gr~w up without a permanent family, to be subjected to the uncertainty cf foster care status, and to be deprived of an opportunity for tealthy development and a normal childhood.
175. Plaintiff ROXANNE F is a seven-year old, Hispanic gi=l who entered DHS foster-care custody in October 1987 when she was two. Roxanne entered foster care because her mother was homeless and was unable to support Roxanne financially.
176. According to the Department, Roxanne's mother "has a chronic history of problems with drugs and alcohol and not beir'.; able to care for her children." Despite knowing about these p=oblems, the Department made no meaningful effort to provide Roxanne's mother with services that would allow her to overc~me these problems and to reassume responsibility of Roxanne.
177. Even though the Department failed to offer or provide services that would allow Roxanne to return home to her mother and even though the mother was making no meaningful progress, :':-. e
Department's planning goal for Roxanne remained "return home" -=--
over four years after she entered DHS custody. 178. Since she entered Department cu.stody, Roxanne has. bee:.
in four different foster homes.
45

179. On or about January 15, 1992, DHS changed Roxanne's planning goal to adoption. In the sixteen months since, however, t~e Department has taken no steps that would allow this little g:=l co be adopted. Her case has not bee~ referred to the Adcp~~on 0nit, ~o wo=k has been done tcwards legally f=eeing ~e= for adoption, and the most recent court report identifies no steps that will be taken to permit her adoption to move forward. Indeed, according to that report, "The TPR has not been initiated because a potential placement has not been found."
180. Roxanne cur=ently resides in a foster horne in ~hich she was placed in November 1988. Because she has spent four and o~e­ hal: years in her cu=rent home, she has a close relationship with her foster mothe= yet her foster mother is not interested in adopting a child.
181. Because of the Department's failure to take timely action to have Roxanne adopted, it will now be very traumatic ~o =ernove her from her foster home and to place her in an adoptive heme, thereby greatly reducing the likelihood that this sevenyear-old girl will ever be adopted. This trauma is likely to be exacerbated by the fa-ct that any placement in a prospective adoptive home would mark the fifth placement for Roxanne in the :ive years she .has been in Department custody.
182. The defendants have violated Roxanne F's constitutiona: a~d statutory rights by failing to provide preventive services that might have averted her entry into foster care, by failing t.J p=ovide her with stable and appropriate placements, by failing ::
46

develop and implement a case plan that contains the elements required by law, and-by failing to provide her with planning and services that would have allowed her to return horne or to be adopted.
183. As a result of the defendants' actions and inactions, Roxanne F has been and is being irreparably harmed, to grow up without a permanent family, to be subjected to the uncertainty of foster care status, and to be deprived of an opportunity for healthy development and a normal childhood.
184. Plaintiff PATRICIA S is a nine-year old girl who entered DRS foster-care custody on or about October 3, 1989, when she was six years old. According to a Department report, Patricia came into DHS custody after Patricia and her mother "had been thrown out of the filthy, unfurnished attic of a drug house because [Patricia's mother1 wanted to bring in men for money for drugs and the owner of the house wanted some of the proceeds."
185. At the time that Patricia was living in these conditions with her mother, bHS had custody of Patricia's two brothers and one sister; these three children had been in DHS custody since approximately October 1983. Notwithstanding the fact that DHS knew or should have known that Patricia was in a dangerous situation and was at risk of enteririg foster care, it made no efforts to protect this child or to offer services to her mother so as to avert. Patricia's entry into foster care.
186. Between her entry·into foster care in October 1989 and July 22, 1991, the planning goal for Patricia was to return her
47

to her mother. Yet, Department reports consistently document

t~at the mother was making no progress towards reassuming

:-esDonsibility for Patricia and that the Department was making no

~eaningful effort towards assisting Patricia's mother.

187. In an October 1990 report, the DHS worker stated, "The

current worker was assigned to Ms. S[J in february 1990. Since

that· time, she has been essentially unavailable to this worker.

:~ a couple of instances' when the worker did have telephone

contact with her, she did not inquire whatsoever as to

:Patricia], in terms of either visit.ation or other court orde!:ed

c~~ditions. 7herefore, essentially no services were offered,

provided, or referrals made" during that period of time.

Nonetheless, the Department kept Patricia's goal as "return

home," apparently on the basis of some last-minute contact with

the mother.

188. In a follow-up report in July 1991, nearly two years

after Patricia entered foster care, the Department observed that

Patricia's mother "has a history of drug abuse and instability in

r.er life. [Ms. S] has not followed through on any inpatient or

outpatient treatment for her cocaine dependency .

She has

been given a list of parenting classes to choose from, but she

~ever signed up for any of the classes." The report later noted

:jat Ms. S. had failed to appear for the most recent

Adrni~istrative Review. Despite all this, the Department

continued "return ho.me.·' as the planning goal, listing a target

date of September 25, 1992. After identifying the major

48

cbs tac les tOo that goa-l as the "mother's unstable 1 i ving a:r:rangement" and "inability to remain dn:g free," the Department
:. ::::er'.': i.: ied the following as tl"'.e services it would provide the
mot~e:r to allow Patricia to return home: "family planning services," "parenting education," and "~ealth services referral."
189. Between July 1991 and August 1992, the Department changed Patricia's planning goal to "long term foster care," t~ereby relegating this nine-year old to spending the rest of her c~i:dhood i~ state c~stody. The Department has made no efforts to have tr.is child adopted or to find any other permanent, nongovernmental placement for her.
190. The defendants have violated Patricia's constitutional and statutory rights by failing to provide her with appropriate protective services, by failing to provide services that might :--.ave averted her entry into foster care, by failing to develop and implement a case plan that contains elements required by law, and by failing to provide her with planning and services that would have allowed her to return home or that would allow her to ce adopted.
191. Because of the defendants' actions and inactions, Pamela S has been and continues to be irreparably harmed, to grow ~? without a permanent family, to be subjected to the uncertainty c: foster care status, and to be deprived of an opportunity for ~ealthy development and a normal childhood.
192. Plaim:iff ';OCELYN Z is an eight-year-old girl, and p:'air,t.iff DERRICK Z is her six-year-old brother. They originally
49

entered DHS custody in February 1987 when Jocelyn was two and De~~ick was twelve months old.
:93. Jocelyn and Derrick were in Department custody from february 1987 to August 1988 after they were found in a parki~g lot withou~ adequate clothing in forty ~egree weather. The children had wandered out of their apartment after their mother went out and left them alone.
194. In Aug~st 1988 Jocelyn and Derrick were returned to ~teir mother, but or-Iy because the court order governing their cus~ody expired and renewal was not obtained on a timely basis. ~he Department subsequently failed to provide services to hel? ~he mother provide proper care for the children and failed to monitor the home situation sufficiently to ensure that Jocelyn and Derrick were not being neglected or abused in their mother's h.ome.
195. In July 1989 Jocelyn and Derrick returned to foster care when their mother signed a voluntary agreement and relinquished custody to the Department.
196. Since Jocelyn and Derrick reentered foster care in July 1989, the Department has maintained a planning goal of return home. Yet the Department has failed to make any meaningful. efforts to assist the mother so that she will be at~e to reassume responsibility for these children, ~nd Department reports consistently have documented the fact that the mother __ making no meaningful. progress towards that goal.
197. According to a March 26, 1991, Department report, ~~e
50

De.oartment worker "ha.s had person to person telephone contact
with [the mother] during the past year and has tried to assist ~er in meeting the court ordered conditions of return.~ According to that same report, the "major obstacles" to returning J~celyn a~d Derrick home at that time were "the mother's willingness and desire to work on completing the court order conditions for return." Notwithstanding these assessments, the only services identified in the report were "[vjisitation" and "[r]eferral to appropriate services as needed."
198. One year later, the Department reported to the C~i:dren's Court that the OKS worker "has had some telephone contact with [the mother) during the past year and has been available to assist her in meeting the court ordered conditions of return. Worker had several appointments with [the mother) that [tb.e mother] failed to keep." Notwithstanding this, the Department stated, "The permanent goal for Jocelyn and Derrick is return home." The only services that the Department identified as being provided to the mother to allow the children to r~turn ~ome were "[v]isitation" and "(r]eferral to appropriate services as ne.eded."
199. Another year passed with absolutely no progress. According to a February 12, 1993, Department report, "This worker has had some telephone contact with (the mother] during the past year and has been available to assist her in meeting court ordered conditions of return." Aqain, the Department continued with a permanency planning goal of "return home"; the only
51

services it· identified as bein9 provided to the mother were "(pJlanned unsupervised visitation" and "[rJeferral to appropriate services as needed."
200. Since a february 1993 overnight visit, after which
~ocely~ and Cerrick complained that they had not been properly fed, their mother has not visited or telephoned the children. The Department has not been involved with the children, the mother, or the foster parents since that time.
201. Since July 1989 Jocelyn and Derrick have been placed in a single foster horne, which is the same horne they were in when they were originally in foster care between february and August 1988.
202. An October 1992 Administrative ,Review Board Permanency Plan Compliance Report stated that Jocelyn and Derrick's "Parent/child bond is disintegrating (while their] bond with foster parents is strong," and that the "Mother's commitment towards re-unification needs to be assessed."
203. Jocelyn has expressed fears of being removed from the home of her foster parents and being returned to the custody of her mother. Both Jocelyn and Derrick have said that they understand the concept of adoption, that they wish to be adopted by their foster parents, and that they do not want to return to ':he home of their natural mother.
204. Jocelyn and Derrick's foster parents have expressed a desire to adopt these childre·n. Despite this, the lack of progress made by the mother, and the fact that these children
52

in have been foster care for three and one-half years, the
Department has made no effort to allow these children to be
205. Since they entered foster care, Jocelyn and Derrick's case has been covered by at least four different Department social workers, and this has hampered permanency planning in their case.
206. The defendants have violated Jocelyn and Derrick's constitutional and stat~tory rights by failing to provide preventive services that mig~t have averted their entry into :os~er care, by failing to provide services that might have per~itted them to return home, by failing to develop and implement a case plan with the elements mandated by law, and by failing to provide planning and services that would allow them to be adopted.
207. Because of the defendants' actions and inactions, Jocelyn and Derrick have been and continue to be irreparably har~ed, to grow up without a permanent family, to be subjected to :he uncertainty of foster care status, and to be deprived of an cpportunity for healthy development and normal childhoods.
208. Plaintiff KAREN M is a sixteen-year-old girl who has
been in oas custody since February 1992. She entered custody
after her mother abandoned her to Karen's maternal grandmother and the grandmother could not provide adequate care for Karen.
209. Karen's mother has a long history a·f instability in her life. She has moved frequently, often leaving Karen with
S3

relatives or other caretake~s. T~e mother also has a history of alcoholism and drug abuse .
. 210. Acce~ding to a report prov:ded to CHS, Karen's mother i.s "a basically emotionally i:runature individual who is primarily co~ce~ned with her own welfare. She lacks emotional depth or the ability to place the needs of her child above her own. Ongoing problems of substance abuse and a lack of willingness to accept ~esponsibility for her behavior and life circumstances exacerbate ether problematic ter,dencies." A psychological evaluation recommended thac she be required to participate in a program subscance abuse intervention that included regular urine screening and therapy participation.
211. In February 1992 the Department submitted a report to the court acknowledging the mother's history and her problems. Though the Department set "return to the home of the mother" as ~he planning goal for Karen, it failed to provide any details as to how this was to be accomplished. Rather it simply listed in formulaic and generic fashion the following services to be ;::rovided: "[h]ousing," "[c]ounseling/therapy," "AODA counseling/evaluation," "(rJegularvisitation per residential ~reatment center policy and mutual desire," and "(e]xploration of relative resources if needed."
212. Ten months later the Department prepared another ~eport that revealed that it had provided no services to Karen's ::-.other that would have allowed her to address the problems t,hat resulted in Karen entering foster care. Under the report section
54

entitled "S~rvices offered, provided, and referrals made to assist the parent" is the following entry: "Efforts to provide family therapy via teleconference with mother have been difficult as mother has not been in contact with (Karen's placement] and r.as not had a phone number. tt
213. According to a December 1992 report, the Department has abandoned its goal of returning Karen to her mother and has changed Karen's permanency planning goal to "long-ter~ foster care." This means that Karen will remain in foster care until she becomes an adult and then "ages out" of the system. Yet t::e Jepartment had made no effort to provide Karen with the i~dependent living services she needs to be prepared to live on her own once she becomes eighteen.
214. On or about September 10, 1992, the Department placed Karen in a residential treatment center -- a highly re'strictive placement -- to assist her in addressing her own substance abuse problems. Karen completed that treatment program in late March 1993 but waited over two months to be discharged. The Depart~e~: did not move Karen out of the residential placement because it did not have available any appropriate, less restrictive placement for her.
215. On or about May 28, 1993, the Department returned Karen to the horne of her maternal grandmother because it had failed to secure an appropriate placement for her. This is a grossly inappropriat.e placement, as the grandmothe'r lac,ks the training, the qualifications, and the resources needed to provide
55

Karen with the therapeutic setting that the Depar~ment knows

Karen needs.

216. The defendants are violating Karen's constitutional

and statutory rights by failing to provide her with clannina and

•

J

se~vices ~~at ~ould allow her to return home or to be placed in

some other permanent setting, by failing to implement and develop

a case plan with the elements mandated by law, by failing to

p~ovide her with independent living services that would allow he~

~o assume responsibility for herself once she becomes an adult

a~d is discharged from foster care, by failing to place her in an

a~p~opriate foster-care placement, and by denying her governme~~

benefits because of her disability.

217. Because of the defendants' actions and inactions,

Karen has been and continues to be irreparably harmed, to grow up

wit.hout. a permanent family, to be subjected to the uncertainty c:

:cster care status, and to be deprived of an opportunity for

~ealthy development and a normal childhood.

Systemic Failures
=-ailure to Protect Children from Harm and to Avoid Unnecessa::-'/ Foste~ Care Placement

218. Federal law requires that complaints of child abuse and ~eglect be investigated promptly; that abused and neglected c~ildren be protected appropriately, that services be available to avoid the need for foster care placement whenever possible, and that state agencies maintain personnel trained in child abuse and neglect prevention and treatment as may be necessary or
56

"
appropriate to ensure that the state will deal effectively with child abuse and neglect cases in the state. Wisconsin law has defined a prompt child abuse or neglect investigation as one that is initiated within twenty-four hours and is completed within sixcy days. Wisconsin also mandates th~ provision of crisis counseling, and, if a family is in need of servicei, requires Milwaukee DHS to provide or arrange for such services.
219. Milwaukee DHS routinely fails to follow applicable law and reasonable professional standards with regard to the investigation of child abuse and neglect reports and the provision of services in connection with those reports. Defendant Brophy has acknowledged that investigations are not initiated into "a goodly number" of the neglect and abuse complaints reported to the Milwaukee DHS within the time period mandated by state law.
220. Workers responsible for investigating reports of abuse and neglect have caseloads far above reasonable professional standards. These workers are usually unable to conduct thorough or timely child abuse investigations, to assess the child's and family's needs, or to provide services to them.
221. Many children are left at horne in dangerous or deteriorating situations as the result of an inadequate child abuse investigation or the failure to offer ser"ices. Other children who could remain at home if the worker had the time to do. an adequat.eas.sessment and' if serv,ices were availab.le are. instead taken into foster-care custody. DHS does not have and
57

. .
does not apply consistent standards for determining whether a child is at risk of abuse and neglect and needs services to =e~ain in the home safely and whether t~e child must enter foster care.
222. :here are virtually no services available to children and families to avoid the need for foster-care placement. Intake workers responsible for investigating abuse and neglect cases do not have access to necessary services and many children who enter foster care could have remained in their homes if adequate services and supervision were available.
223. At the early stages of placement, when some children can still be reunified quickly with their pa~~nts, most children's cases are handled by DHS court workers who, as a mat~er of Department practice, do not provide any services to eit[1.er cr.ildren or families. Cases remain with DHS court workers until an adjudication by the Children'S Court that the child has been abused or neglected. These adjudications routinely take
more than six months. Therefore, during the first six months 0:
a child's placement, DHS does not even attempt to provide any services to reunify the child with his or her family, or to provide services to the family to enable the child to leave foster care.
224. Defendant Brophy has acknowledged that "[d]uring this six to eight month period [following the child's removal from the !-.ome and foster care placement} no services are being offered to
~he parents, nor is anyone from the Social Services Department
58

either formulating a case plan with the parents or shepherding the parents and the child through a service delivery pathway that cc~:j mend the family and return the child or begin to support the adoption pathway."
225. 8e:e~dant Brophy has also acknowledged that children in foster care are likely to change case workers as many as five times during their first year of placement.
226. Milwaukee DHS is required to make a recommendation to :~e court about the need for services in each.case. Rather than i~dividualizing t~e recommendations, however, DHS workers instead resort to virtual:y identical language with regard to most children and families.
Inaoorcoriate Placements and Harm to Children in Foster Care
227. When children enter foster care, Milwaukee DRS workers ~lace them.in foster homes or facilities without any assessment cf the child's individualized needs and with little knowledge of the particular placement. Placements are usually chosen based en Hhether the home will take the child, not on whether the home is appropriate. Milwaukee DRS does not maintain any systematized placement listings that contain updated information on vacancies and on the quality of the particular foster home or facility. Cbtaining a good placement for a child is almost always a matter
0: luck.
228. There is a shortage of appropria.te foster home placements. This problem could be remedied by conducting
59

effective recruitment campaigns, providing adequate screening c: applicants, and providing adequate reimbursement, training, s'J.ppcirt, and supervision to fos:.e.: pa.:ents. Instead, there are of~en long delays in screening potential foster parents because cf s~aff shor~ages at Milwaukee DHS. Milwaukee DHS routinely violates professional standards and applicable legal provisions by licensing and maintaining foster homes that are unsuitable to care for children. In some instances foster homes are no be~te= able to ca=e for the ch~ldren than the homes from which the c~i~d=en have been removed.
229. In many instances Milwaukee DHS workers have so lit~:e con:act with the child and the foster family that they have :i~::e if any knowledge about the care and treatment the child is getting. In other instances children are left in clearly inappropriate and harmful homes even after the Milwaukee OKS learns of the problems because Milwaukee DHS has failed to develop either the number or range of appropriate foster homes and because there is simply no place else to put the child.
230. Children who enter placement in a sibling group often are separated from each other, compounding the trauma inflic::ed by the circumstances leading to their placement and undermining the children's family relationships.
231. Many children entering Milwaukee DHS custody are place~ initially in an emergency placement because the agency does nct ::taintain the necessary information on available placements to enable the child to be placed in a longer term setting. Altho~~~
60

. .
emergency placements are intended to be temporary and to last ~o longer than thirty days, many children remain in these placements for ~ longer period of time because other placements have not been obtained.
232. While in foster care, many children are placed with foster parents who are untrained or unable to deal with their problems. The Department provides foster parents with almost no training, and DHS caseworkers rarely visit foster homes to ensure ~~e safety of children, to determine whether they are receiving proper care, to identify problems they may be experiencing, or to provide assistance and support to maintain a good foster home placement.
233. Even foster parents who want to provide proper care for t~eir foster children have difficulty reaching their worker on the telephone. Birth parents, foster parents, and community service providers often have similar problems learning the i~entity of the responsible worker.
234. Workers are usually too busy to arrange visitingbetween birth parents and their children or among separated siblings in foster care, and such visiting is usually dependen': on the aggressiveness of the birth parents and the cooperativeness of the foster parents. However, workers are usually unavailable to supervise visits, when that is required, with the result that such visits are often delayed, do not ta~e :;::lace, or are inadequately supervised by a foster parent or_ :amily member.
61

23£. Many children in fost~r care experience frequent movement from one foster care setting to another, with some ::::-~i:"dren being subjected ~o as many as twelve different . place~nents
236. Children'S specific service_needs often are not addressed by workers. Workers rarely have time to find out about children's school progress or to ensure that children are receiving an appropriate education with the result that problems are often left unaddressed until they reach a crisis level. Mih..aukee DRS workers also faiL to ensure that children recei'.J'e necessary medical and dental care and treatment.
Planning to Secure a Permanent Placement
237. Reasonable professional standards and the applicable law require that a child remain in foster care for as short a time as possible and that children should either be returned to their parents as quickly as possible or parental rights should be terminated so the child can be placed in a permanent adoptive home. Nevertheless, the average length of s.tay f-or children in foster care custody in Milwaukee is thirty months. One recent study of selected Milwaukee DRS case loads estimated that onethird of the children currently in. foster care need not be in c~stody, but instead could either be returned home or placed for adoption.
238. Planning for children is haphazard. Although most children have written case plans, these plans do not conform to
62

,.
reasonable professional standards or applicable law. Rather than being individualized, many of the plans and long-term goals for c:::' :'d=en and tr.eir fami 1 ies are simp ly taken from standardized c~ecklists or contain boiler-plate language. Often, the same language abc~t the steps that need to be taken to ensure permanency for a child is repeated year after year, with no action being taken to implement the plan.
239. Individualized case plans with specific goals, with t:'metables and steps necessary to accomplish goals, and with the clea:- delineation of which parties have responsib.ilLty to help ens~:-e that the goals are met are critical to implementing a permanent plan for a child. Milwaukee DHS neither provides nor implements plans that will enable children to leave foster care c~stcdy within a reasonable period of time.
240. P.arents 'Nho want to get their children back are noc provided the services to enable them to do so. On the other hand, Milwaukee DHS workers often maintain planning goals to :-eturn children to their parents long after there is any :-easonable expectation that the plan can be accompl.ished and even when the parents' whereabouts are unknown. In many instances ~ilwaukee DHS simply waits passively for parents to bring :he;nselves to a level of functioning necessary to assume custody of cheir children, without either prdviding assistance to the parents or making the decision that the parent will not be able :0 ac:-.i.eve that goal.
241. Adoption procedures are so cumbersome that few
63

· .
children gee adopted. As a general matter, Milwaukee DHS does

n~t even consider freeing a child for adoption until after the

c~~~d has been in placement for two years, regardless of whether

reun~f~cation with the parents is a realistic possibility. D~S practice ~ot to seek to terminate parental rights for

It is

children who need to be adopted until an adoptive home can be

identified and ~ot to seek an adoptive home until parental rights

tave been terminated. Not surprisingly, few children are

adopted, unless they are fortunate enough to have been placed

with a foster parent. '...ho becomes interested in adopting them.

242. In many instances foster parents who may be interested

in adopting their foster children during the first several years

the child is placed with them receive no encouragement or

decision about adoption from Milwaukee DHS and become discouraged

and make other plans. Therefore, by the time that Milwaukee Q!iS

determines that a child could be adopted, many foster parents are

no longer willing to adopt their foster child. The children are

th~s in the position of having formed a significant relationship

with their foster parents but, because Milwaukee DHS has failed

to take necessary steps to make that relationship permanent

through adoption -- of being deprived of any chance for a

~er~anent family. Children who live for years with foster

~arents and then have to move to other foster parents often

suffer serious, permanent. damage, to their ability to form

relationships and to trust adults.

243. The result of all this delay is that children who

64

could have been adopted within a reasonable period of time af~e= they entered Milwaukee DHS custody frequently become too old, or ~JO damaged by their stay in foster care, to be acceptable to an adoptive family or to be able to adjust to an adoptive placement. Thus t~is delay deprives them of any chance for. a permanent adoptive family.
Eandicaooed and Disabled Children
244. Many children in the custody of Milwaukee DHS are children with disabilities and handicaps who are entitled to t~e government benefits and services available to children placed .~ foster care. In some instances these children need special services, including appropriate treatment or specialized foster homes, to enable them to avail themselves of these benefits. ~~ other instances these children, by virtue of their handicaps, =.=e far more vulnerable to the harm caused by frequent moves among foster homes or by the absence of stability caused by having ~o permanent family.
245. These children are entitled to the services necessary to enable them to participate fully in the foster-care program and to not have their disabilities exacerbated by defendants' actions and inactions so that their handicaps worsen and they become difficult to adopt or to maintain in a foster home.
246. However, the defendants fail to provide necessary services or stability to these particularly fragile chlldr.en, moving them from home to home when their behavior deteriorates ~=
65

wten the~r handicaps or disabilities become too difficult to ~anage or, in some instances, failing to fi~d appropriate foscer h:~es for them with'parents special:y ~rained to address their
247. :ederal and state law, Depar~ment policy, and reasonable professional standards also require that a child in foster care have a stable foster-horne placement and receive ti~ely decision-making and the implementation of a permanent plan either to ret~rn a child to his or her birth family in appropriate circumstances or, if that is not appropriate,' to tave :te child legally freed for adoption and placed in a per~anenc adoptive horne. While defendants do a poor job of securing ?ermanent homes for most children in foster care, there often is ~ot even any effort to find permanent homes for children with t'.ar.dicaps, s.olely because of. these children's handicaps.
?eriodic Reviews
248. When cases are presented to the court, Milwaukee :~S eften provides incomplete, misleading, and sometimes false information to the court. This often happens because the worker responsible for preparing the court report has only third-hand and fourth-hand information, if the worker has any informatiGn at all. Court reviews are perfunctory, often lasting less than fifteen minutes, because of overcrowded court calendars.
249. Reasonable professional standards and applicable La',.; require that children's circumstances be reviewed periodically by
66

the court to ensure that children have an appropriate permanent goal and that the child-welfare agency is taking necessary steps
':J accomplish that goal. rn Milwaukee this process is nothing
mere than a rubber-stamp procedure and provides no meaningful safegua=ds to children. Even when court orders are issued, Milwaukee DHS routinely ignores the recommendations of the court, thereby rendering these orders largely ineffective.
Systemic Failures
250. The Milwaukee defendants operate a child-welfare system that violates both the letter and the intent of applicable federal statutes, state law, and reasonable professional standards. The defendants have organized and provided resources to the system in such a way as to make these violations of law, and the resulting harm to children, both foreseeable and ir.evi table.
251. Caseloads are so high, averaging 100 cases and often exceeding that, that mandated services simply cannot be provided. Many positions within the Mil~aukee DHS are unfilled, with children's cases assigned to "vacant zones" where no worker at all is responsible for the case. It is impossible for workers to develop and imp"lement appropriate plans for children with caseloads that require them to spend all their cime in court and addressing emergencies, rather than ensuring adequate care and pe.rmanence for children.
252. High caseloads affect both the handling of individual
67

cases and the develop~ent of flecessary resources. Milwaukee DHS ~acks adequate staff to recruit and Screen foster and adoptive ~:~es and to move children in need of adoption through the pr8cess of termination of parental rights. The absence of a useful and reliable computerized inf0rmation makes the process of ~atching a child with a foster home totally haphazard and dependent on workers' memories and index card files. It also makes it impossible to plan for children properly, to track their prcgress, and to determine the need for additional resources.
253. The problems within the Milwaukee child-welfare syst.em have long been well known to both the county and state defendants. The county defendants are directly responsible for the a~~inistration of this system and for the damage that is being inflicted on children as a result of these continuing and widespread violations of the law. The state defendants are responsible for ensuring that county child-welfare systems follow t.he mandates of applicable law and adopt rules and guidelines and are further responsible for providing necessary supervision to counties such as Milwaukee in which legal requirements are being violated and children are being harmed. Although additional :ederal dollars have been made available to the state as reimbursement ·for Milwaukee foster care costs, the state has diverted these funds to non-child welfare programs.
254. Defendant Brophy, Milwaukee County's Director of the Department of Social Services, stated in his 1989 Budget Statement to the County Executive that Milwaukee County faced "a
68

crisis in the public child prot~cticn system. The system has

!::ee:1 so .overloaded by the number and severity of child protection

=ases ~hat abused and neglected childre~ are starting to 'fall

t~r~ugh the cracks' of a stressed out system. .

The evidence

of the cr~sis in child protection is al~ too evident

burnt out

staff, lack of treatment resources, waiting lists for

inscitutional placements, and high caseloads."

In 1990 defendant Brophy stated that· under existing

circumstances, some c~ild abuse referrals would not be

i~vescigated or would be investigaced superficially; children

~~aced in foster homes, group homes, and shelters would not be

~oni:~red properly; the number of children in the Department's

cust9dy who would be returned to dangerous homes would increase

because higher caseloads would prevent completion of court work;

fester parents would not get the support they need to care for

~hysically·and emotionally abused children; and the inability to

fill existing vacancies in the Department "reduces services" to

children who depend on the Department life-sustaining and life-

saving services.

256. In 1991 defendant Brophy gave sworn testimony before a

j~dicial fact-finding tribunal, stating how the Department is

failing to provide mandated services:

What happens is that with that kind of caseload what the workers are largely in the situation of doing now is that they are hopping from crisis to crisis to crisis. On a given day, if 10% of their caseload is in crisis, the worker could have anyw.her.e from· 10-12 families and kids that they may have to deal with. That means that the other 100 cases are left to languish. And it means that the orders of the court

69

which can be very prescriptive relative to get~ing a mother into parent education classes, gett~ng a mother into mental health assistance, helping a mother to get alcohol and drug assistance, maybe helping the child get some special programming, schooling, is simply not being carried cut.
:0; n t:-.e :-eal extreme end, [children] may go into a
home, ~hey may stay there for long~eriods of time. Their behavior may deteriorate. ~ld they may home hop to a point where in a child's life they could be in six to eight to ten foster homes before. . they reach age 18 and then just leave the system to the adult world. And even in some rare cases, but still too many, they may be abused and neglected in their own home, removed, put in a foster home and abused and neglected in that home and have to end up going into an institutic~al environment.
257. Circu~t ~udge Christopher Foley testified in 1991
t~e problems in t~e Milwaukee child-welfare system raise
"significant issues about high levels of noncompliance with
federal requirements" as well as high levels of noncompliance
',.;ith state court orders to prov,ide services to children.
258. Notwithstanding the public recognition of these
problems, the inadequacies of the Milwaukee child-welfare system
tave continued and have gotten worse.
259. Despite knowing that children have been and continue ~~
be irreparably damaged by the failure to provide mandated
services and protection to these vulnerable children, the
defendants have failed and refused to take necessary action. As
a result, plaintiffs and members of their class have been and are
being deprived of their legal rights, are being irreparably
harmed as a result, and are being deprived of the opportunity
safe and healthy childhoods.
70

CAUSES OF AC::ON
260. As a result of the actions and inac:ions of the defendants, the plaintiff children are being deprived of the ri;1"'.,:s c-::-.ferred upon them by the First, Ninth and Fourteem:h Amendments to the United States Constitution. These rights include but are not limited to their right to protection from harm; their right not to be deprived of a family relationship absen: compelling reasons; their right not to be harmed -physically, emotionally, developmentally, or otherwise -- whi~e in state custody; :heir right not to remain in state custody ~nnecessarily; their right to placement in the least restrictive, appropriate placement; their right to treatment; their right to equal protection of the law and not to be discriminated against by virtue of their handicap or disability; their right to care that is consistent with competent professional judgment; and their right not to be deprived of state or federally created liberty or property rights without due process of law.
261. As a result of the actions and inactions of the defendants, the plaintiff children are being deprived of the· rights conferred upon them by the federal Adoption Assistance and Child Welfare Act of 1980. These rights include but are not limited to the plaintiff children's right to have defendants implement a preplacement preventive services program designed to r.elp children remain with their families or be returned to their families; their righ: to timely written case plans that contain mandated elements and to the implementation and review of those
71

plans; their right to placement. in foster homes or facilit~es t~at conform to nationally recommended standards; their right to apprbpriate services; their right to placement in the least restrictive, most family-like setting; their right to proper care w~i:e in custody; their right to planni?g and to services that will assure their permanent placement; their right to regular judicial or administrative reviews; their right to dispositional hearings within eighteen months of entering custody and periodically thereafter; and their right to receive services in a child-welfare system with an adequate information system.
262. As a result of the actions and inactions of the defendants, the plaintiff children are being deprived of the rights conferred upon them by the federal Child Abuse Prevention and Treatment Act. These rights include but are not limited to the plaintiff children's right to prompt and appropriate investigation of reports of abuse or neglect; their right to protection from those who endanger their health and welfare; and their right to such administrative procedures, trained and qualified personnel, programs and facilities that are necessary to deal effectively with child abuse and neglect in Milwaukee.
263. As a result of the actions and inactions of the defendants, the plaintiff children who are handicapped or disabled by their physical or emotional conditions are being deprived of their rights under the Americans with Disabilities Act and the Rehabilitation' Act of 1973 to participate fully and receive the benefits of the state foster care and child-welfare pr~gra~.
72

26(. As a result of the·actions and inactions of these defendants, the plaintiff children are being deprived of the ~:~h~s conferred upon them by state laws and regulations. These ri;~=s inc~ude but are not limited to their right to protection f=:m abuse; thei= right to reasonable efforts to avoid the need for foster care placement or to be reunified with their families; t~eir right to appropriate and timely case records and plans; ~heir right to services in community-based programs; their ri~~t
:0 permanent and stable family relationships; their right to
care, protection and wholesome mental and physical development; :ne:r right to adoption into stable families rather than remaining in the impermanence of foster care and to specified adop~icn procedures; and their right to appropriate services in accordance with their best interests.
RELIEF REQUESTED
265. The plaintiffs respectfully request that the court grant the following relief:
A. Certify this action as a class action pursuant to Rule 23 (b) (2) of the Federal Rules of Civil Procedure.
B. Enter declaratory and injunctive relief necessary and appropriate to remedy the defendants' violations of the ?~aintiffs' rights under the United States Constitution.
C. Enter declaratory and injunctive relief necessary and appropriate to remedy the defendants" violations of the plaintiffs' rights under the federal Adoption Assistance and
73

Child welfare Act. D. Enter declaratory and injunc:ive relief necessary
:~ ~emedy defendants' vidlations of plaintif~s' rights under the :ede~al Child Abuse Prevention and Treatment Act.
Snter declaratory and inj~nctive relief necessary
:0 remedy defendants' violations of plaintiffs' rights under the
federal Americans with Disabilities Act and the Rehabilitation 1-.c t. 0 f 1973.
Enter declaratory and injunctive relief necessa~y and appropriate to remedy vi.olations of plaintiffs' rights unde.r sta:.e law.
G. Award to the plaintiffs the reasonable costs and expenses incurred in the prosecution of this action, including t~t. not limited to reasonable fees and costs pursuant to section 1.988 of title 42 of the United States Code.
G. Retain jurisdiction of this matter to insure adequate and effective implementation of the relief ordered by the court.
Respectfully submitted~
MARCIA ROBINSON LOWRY CHRISTOPHER DUNN ANNE W. MURDAUGH American Civil Liberties Union Children's Rights Project 132 West 43d Street New York, N.Y. 10036 (212) 944-9800
74

Dated: June 1, 1993

P .~c:~..~-c..R. 'M-:.:.. ~~,'~_'l~""'T:"-~'f~k,
American Civil L' erties of Wisc0nsin Foundation 207 East Buffalo Street Suite 325 Milwaukee,- WI 53202
(414) 272-4032

Union

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JEANINE B., by her next friend Robert Blondis, et aI.,

CLASS ACTION

Plaintiffs,

v.

JAMES DOYLE, et al.

CNILACTION NO. 93-C-0547

Defendants.

ORIGINAL

MODIFIED SETTLEMENT AGREEMENT

WHEREAS, Plaintiffs brought this lawsuit by class action complaint fIled June 1, 1993, seeking declaratory and injunctive relief against the Governor and other defendant officials of the State of Wisconsin and of Milwaukee County, based on alleged system-wide deficiencies in the Milwaukee child welfare system; and
WHEREAS, in response to the lawsuit, the State Defendants implemented a State takeover of the child welfare system in Milwaukee County, effective January 1, 1998, for the purpose of improving the safety and well-being of the plaintiff class of children; and
WHEREAS, Plaintiffs fIled a Supplemental Complaint on June 2, 1999, and an Amended Supplemental Complaint on December 1, 2000, alleging continuing deficiencies of the child welfare system in Milwaukee; and
WHEREAS, the State Defendants have achieved needed reforms significantly improving the safety and well-being of the plaintiff class of children in the custody of the Bureau of Milwaukee Child Welfare (BMCW); and
WHEREAS, the State Defendants recognize that this lawsuit has helped achieve those reforms;
NOW THEREFORE, in consideration of the undertakings set forth herein and intending to be legally bound thereby, it is stipulated and agreed to by the Plaintiffs and the Defendants, represented by their undersigned counsel, that all of Plaintiffs' claims for relief which were or could have been asserted in this action shall be fully resolved on the following terms as set forth in this Settlement Agreement.
Copy i"nai!~~d :0 ~ . .t;..HTH:~YS for
pi.~rtiss by the Co~rt pursuant to Rule 77 (d) Federal Huies of Civil Procedures.

I. ENSURING PERMANENCE, SAFETY AND CIDLD WELL-BEING

A. Child welfare outcomes for plaintiffclass children and performance measures of child welfare practice improvements will be phased in over three one-year periods beginning January 1,2003, January 1,2004 and January 1, 2005, respectively. Those periods are respectively referred to hereinafter as Period 1, Period 2 and Period 3. If defendants are not in compliance with a requirement of this Agreement at the end of Period 3 as acknowledged by defendants or determined by the arbitrator, the Period 3 requirement remains in effect until defendants comply, governed by provisions ofthis Agreement relating to that requirement unless the parties mutually agree to termination or modification.

B. Permanence

1. The parties will negotiate in good faith as soon as practicable with the Milwaukee County District Attorney to ensure adequate legal representation for the prosecution of termination of parental rights (TPRs) petitions, consistent with ASFA requirements.

2. At least the following percentages of children in BMCW custody reaching 15 of the last 22 months in out-of-home care during the period shall have had a TPR petition filed on their behalf, or an available Adoption and Safe Families Act (ASFA) exception documented in their case, by the end of their fifteenth month in care. In accordance with the court's decision of June 19, 2001, plaintiffs are prohibited from challenging or asking the arbitrator or federal district court to alter defendants' discretionary determination that one or more of ASFA's exceptions apply, where defendants have documented an available exception. Placement with a relative in a particular case and documentation that TPR is not being pursued because of that placement satisfies the ASFA relative placement exception requirement.

Period 1

65%

Period 2

75%

Period 3

90%

3. At least the following percentages of children in BMCW custody for more than 15 of the last 22 months in out-of-home care without a TPR previously filed or an available exception previously documented shall have had a TPR petition filed on their behalf, or an available Adoption and Safe Families Act (ASFA) exception documented in their case by the end of the period. In accordance with the court's decision of June 19,2001, plaintiffs are prohibited from challenging or asking the arbitrator or federal district court to alter defendants' discretionary determination that one or more of

Page 2 of 12

ASFA's exceptions apply, where defendants have documented an available exception. Placement with a relative in a particular case and documentation that TPR is not being pursued because of that placement satisfies the ASFA relative placement exception requirement.

Period 1

75%

Period 2

85%

Period 3

90%

4. If the State does not obtain a federal Title IV-E :waiver allowing subsidized guardianship before January 1, 2003, then no more than the following percentages of children in BMCW out-of-home care within the period shall be in care for more than 24 months. The percentage shall be calculated against a baseline of 5533 children in BMCW out-of-home care.

Period 1

40%

Period 2

35%

Period 3

25%

5. If the State successfully obtains a federal Title IV-E waiver allowing subsidized guardianship before January 1, 2003, then no more than the following percentages of children in BMCW out-of-home care within the period shall be in care for more than 24 months. The percentage shall be calculated against a baseline of 5533 children in BMCW out-of-home care.

Period 1

40%

Period 2

30%

Period 3

20%

6. At least the following percentages of children who are reunified with parents or caretakers at the time of discharge from BMCW out-of-home care within the period shall be reunified within 12 months of entry into care.

Period I Period 2 Period 3

to be monitored only 65% 71%

Page 3 of 12

7. At least the following percentage of children for whom an adoption is finalized within the period shall exit BMCW out-of-home care within 24 months ofentry into care.

Period I

20%

Period 2

25%

Period 3

30%

C. Safety

1. No more than the following percentages of children in BMCW custody shall be the victims of substantiated abuse or neglect allegations within the period by a foster parent or staff of a facility required to be licensed.

Period 1 Period 2 Period 3

.70% .65% .60%

2. At least the following percentages of reports within the period alleging abuse or neglect of a child in BMCW custody shall be referred to the independent investigation agency for independent investigation within three business days.

Period 1

80%

Period 2

85%

Period 3

90%

3 At least the following percentages of reports referred for independent investigation within the period shall be assigned to an independent investigator by the independent investigation agency within three business days of the independent investigation agency's receipt ofthe referral from BMCW.

Period 1

80%

Period 2

85%

Period 3

90%

4. The determination required by section 48.981(3)(c)4. of the Wisconsin Statutes must be made within 60 days of receipt of the referral by the independent investigation agency in at least the following percentages of independent investigations referred by BMCW.

Period 1

80%

Period 2

85%

Period 3

90%

Page 4 of 12

D. Child Well-Being
1. BMCW shall ensure that ongoing case managers shall have caseloads not to exceed an average for each BMCW case management Site of 11 families per case-carrying manager. Compliance with this requirement at any given point in time shall be measured by averaging each Site's current monthly caseload average with the corresponding Site averages for the preceding 2 months.
2. The above provision shall be phased in incrementally and shall be fully effective by Jan. 1,2004, but not enforceable until April 1, 2004. During the phase-in period, commencing January 1, 2003, no Site shall have average caseloads of over 13 families per case-carrying ongoing case manager.
3. By January 1, 2003, and thereafter for the duration of this agreement, BMCW will include a contract holdback provision in its BMCW Site case management contracts for each BMCW case management site that will impose a sufficient holdback on each site that does not meet 90 % compliance with monthly face-to-face visits of children in BMCW custody by their case manager.
4. BMCW will enforce the monthly face-to-face visits holdback provisions in case of noncompliance for the months beginning with July, 2003.
5. The use of shelter placements shall be phased out entirely.
6. By December 31, 2003, and thereafter, no child shall be placed in a shelter.
7. By December 31,2003, BMCW shall develop special diagnostic/assessment centers for children over 12 years of age who need further assessment in order to determine the appropriate placement. Placement in such centers shall not exceed 30 days, or 60 days if the placement is extended in accordance with applicable state law.
8. The Division of Children and Family Services shall make its best efforts to seek legislative approval of foster parent reimbursement rates consistent with USDA standards.
9. At least the following percentages of children in BMCW custody within the period shall have had three or fewer placements after January 1, 1999, during their current episode in BMCW custody. The number of placements will exclude time-limited respite care placements and returns to the same caretaker after an intervening placement during the same out-of-care episode. Those
Page 5 of 12

children in BMCW custody through the Wraparound Milwaukee program shall be excluded from this calculation.

Period 1

80%

Period 2

82%

Period 3

90%

II. NAMED PLAINTIFFS
BMCW will supply Plaintiffs' counsel with quarterly updates of the named plaintiffs' case records until an adoption is finalized, a permanent guardianship order is entered or the child is no longer in BMCW custody. The parties will engage in monthly good faith discussions concerning the appropriateness of the care and treatment of the named plaintiffs until an adoption is finalized, a permanent guardianship order is entered or the child is no longer in BMCW custody, except that defendants agree to the post-adoption services described below. In the event that the parties dispute appropriateness of the services and treatment plans to be provided prior to adoption for the named plaintiffs, the parties will refer the dispute to the arbitrator for a resolution that is binding on the parties. Notwithstanding V.C., before the parties can move the court for termination of the Agreement, the parties must agree, or the arbitrator must determine, that as to any of the named plaintiffs who has not had an adoption finalized or a permanent guardianship order entered, and who is still in BMCW custody, the defendants have substantially complied with the corresponding section below.
A. Danny C. and Frank M. BMCW shall continue to pursue the adoption of Danny C. and Frank M. by their current foster parents, and shall provide individual postadoption counseling for both boys as long as it is recommended by their therapist and consented to by their foster/adoptive parents.
B. Corey H. BMCW shall continue to pursue the adoption of Corey H. by identifying and approving a qualified adoptive family with whom he can be placed as soon as practicable. All necessary services identified by BMCW will be provided to continue to support an adoptive placement. Additionally, BMCW shall ensure that he remains eligible for Title XIX medical coverage post-adoption through an adoption subsidy agreement.
C. Julie R. BMCW shall continue to pursue the adoption ofJulie R. by her current foster parent, shall continue to make efforts to keep Julie R. placed in a home with her sisters, shall continue to provide mentoring services to her and shall continue to coordinate special education services for her. Additionally, BMCW shall assure that she remains eligible for Title XIX medical coverage post-adoption through an adoption subsidy agreement.
Page 6 of 12

D. Diana H. BMCW shall continue to pursue the adoption of Diana H. by her current foster parents, and shall assure that she remains eligible for Title XIX medical coverage post-adoption through an adoption subsidy agreement.
III. MONITORING
A. The BMCW Program Evaluation Managers (PEMs) will conduct a comprehensive review (such as conducted for the second quarter 2000) at least once each period, which, upon completion, shall promptly be made publicly available.
B. Monitoring of and reporting on all the elements specified in Article I of this Agreement shall be conducted by the BMCW PEMs on a semi-annual basis and, upon completion, shall promptly be made publicly available. At the conclusion ofPeriod 3, monitoring will continue only with regard to Article I requirements that remain unmet and in effect pursuant to lA.
c. In addition to reporting on the elements specified in Article I of this Agreement, the
PEMS shall also monitor and report on the following elements in their semi-annual monitoring reports. The conducting of reviews and the production ofreports on these elements by the PEMS shall constitute compliance with this sub-section, and these elements and related findings are not enforceable under this Agreement. The requirement to conduct reviews and produce reports under this section terminates on December 31, 2005.
1. BMCW provision of an initial family assessment for all children within 90 days of their first placement;
2. BMCW provision of an initial medical examination for all children within 5 business days of their first placement, except for children discharged from hospital to placement;
3. BMCW provision of a complete placement infonnation packet regarding a child's health and educational background for a random sample of at least 50 children being placed with a new caretaker;
4. BMCW referral of children in BMCW custody to health care services and utilization of health care services, including regular pediatric medical and dental examinations;
Page 7 of 12

5. BMCW compliance with the federal standard for an initial case plan/permanency plan for all children within 60 days of entering BMCW custody;
6. State compliance with the federal requirement for ajudicial or administrative permanency plan review every 6 months, and at least one judicial permanency plan review annually;
7. The percentage of children re-entering BMCW out-of-home care within the period who have re-entered care within 12 months of a prior BMCW out-of-. home care episode; and
8. Ongoing case manager turnover rates per BMCW case management Site, identifying the number of ongoing case managers carrying cases at the beginning of the reporting period, the number of ongoing case managers carrying cases who leave for any reason during the reporting period, and the number of ongoing case managers carrying cases added during the period.
9. The monthly caseload averages of children per ongoing case manager carrying cases, for each BMCW case management Site, including the maximum and minimum number of children at the end of the month per manager.
IV. ENFORCEMENT
A. If Plaintiffs determine based upon their good faith review of available evidence, that Defendants are out of compliance with any provision ofthis Agreement, Plaintiffs will notify Defendants in writing accompanied by supporting documentation.
B. The parties shall engage in a good faith negotiation to reach agreement within 45 days of the receipt by the Defendants of any alleged noncompliance and any necessary corrective actions, including a time period for implementation of such corrective actions, and shall make all reasonable efforts to reach agreement. This 45 day time period can be extended by mutual agreement, or in the absence of agreement, can be extended for one 30 day period by either party.
C. If no agreement on the issue of noncompliance or necessary corrective action is reached within the timeframe set in N.B., the dispute will be submitted to an arbitrator agreed upon by the parties for a determination of compliance or noncompliance and appropriate corrective action.
D. A determination of the arbitrator is binding on the parties. A party wishing to enforce or challenge an arbitrator determination may do so by fIling a motion with the court
Page 8 of 12

within 30 days for non-compliance, contempt, remedial actions, or modification or rejection of the arbitrator's findings. The parties shall not object to, or seek modification of, the arbitrator's determinations or findings except on grounds that they are clearly erroneous as a matter of fact or law.
E. If the implementation of corrective actions fails and noncompliance continues, the parties shall re-engage in good faith negotiations under paragraphs A. and B.
F. Plaintiffs shall not seek any enforcement action, including submission of a dispute to the arbitrator, for the first six months after the signing of this Agreement or July 1, 2003, whichever is later, except that good faith negotiations under A. and B. may commence six months after the signing of this Agreement.
G. The court shall retain ultimate jurisdiction to enforce this Agreement.
H. All of the provisions ofthis Agreement are separately and independently enforceable, except where the Agreement provides that an element or provision is not enforceable.
V. XERMINATION AND EXIT
A. Defendants shall be determined in compliance with any Article I requirement of this Agreement for any period in which a semi-annual PEM report during the period indicates compliance. Defendants may at anytime after July 1,2004 seek an arbitrator determination that they have met the requirements of any specific provision ofArticle I of this Agreement and are no longer subject to enforcement of that provision, including a determination that they have met the requirements of a Period 3 percentage standard during the most recent two consecutive six-month intervals. Where plaintiffs acknowledge or the arbitrator determines that defendants have met the requirements of a specific Article I provision during the most recent two consecutive six-month intervals, monitoring ofthat provision shall continue until this Agreement is terminated, but that provision shall no longer be enforceable under this Agreement.
B. The arbitrator's determinations under V. A. shall be binding on the parties. A party wishing to enforce or challenge an arbitrator determination may do so by filing a motion with the Court. The parties shall not object to the arbitrator's determinations or findings except on grounds that they are clearlyerroneous as a matter of fact or law.
C. When the arbitrator determines that defendants have complied with all provisions of Article I of this Agreement, the parties shall jointly move the court for termination of the Agreement. This Agreement shall remain in full force and effect until the Court terminates jurisdiction.
Page 9 of 12

VI. MISCELLANEOUS A. The teImS of this Agreement apply to children who are or will be in BMCW custody. B. Definitions: 1. Out-of-home care shall be defined consistent with the federal ASFA definition of foster care. 2. BMCW custody shall mean physical and/or legal custody. 3. Independent investigations are all investigations of abuse and neglect of children in BMCW custody required by state law to be referred to an independent agency. 4. Ongoing case managers means those persons currently employed by BMCW, and BMCW's vendor agencies, who provide case management services to children in BMCW custody. 5. Shelters shall mean non-foster home placements designed for emergency short-term placements. C. Reports and other documentation produced by the PEMS or WISACWIS are presumed regular and correct. D. Time shall be computed under sections 990.001(4) and 801. 15(1)(a) of the Wisconsin Statutes. E. Forthwith upon the Court's approval of the Settlement Agreement, the State of Wisconsin will cause to be transmitted to plaintiffs' attorneys the sum of Nine Hundred and Fifty Thousand Dollars ($950,000) in full and final settlement of any and all claims plaintiffs may have for attorneys' fees and costs, including any costs incurred by plaintiffs for the services of expert witnesses, arising from this litigation through the date the Court approves the Settlement Agreement.
Page 100f 12

FOR PLAINTIFFS:
Eric E. homp n, Esq. Marcia Robinson Lowry, Esq. CHILDREN'S RIGHTS, INC. 404 Park Avenue South, 11th Floor New York, N.Y. 10016 (212) 683-2210
FOR DEFENDANTS:
Wisconsin Department of Health and Family Services 1 W. Wilson Street P.O. Box 7850 Madison, WI 53707-7850 (608) 266-1404
Assistant Attorney General Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, Wisconsin 53707-7857 (608) 266-0323
Page 11 of 12

SO ORDERED:

If /14/08 DATE

Page 12 of 12

 
 ,..
1012 East Ogden Avenue Milwaukee, Wisconsin 53202
November 17,2006

JANINE P. GESKE
Tel. (414) 288-7877 Fax: (414) 390-0299 E-mail: jpg@execpc.com
Fellow of the American College of Civil Trial Mediators

Honorable Rudolph T. Randa U.S. District Court Eastern District 517 East Wisconsin Avenue #362 Milwaukee. Wisconsin 53202-4511

Re: Jeanine B. et aI. v. James Doyle et aI.
Case Number 93-C-57
Dear Judge Randa,
Please fmd enclosed my arbitration decision in the Jeanine B. et aI. v. James Doyle et aI. case. As part of the consent decree in this matter, you ordered, pursuant to the parties' request, that I serve as an arbitrator on any disputes between the parties. They did submit an issue to me that they could not resolve. That issue was briefed and I have enclosed a copy ofmy decision. The parties have received a copy ofthis decision as well.
You will not have to address any issue relative to my fees in this matter as I decided to handle this case on a pro bono basis. If you need me to do anything else relative to this case, please have your clerk contact me. Thank you for your consideration.

Sincerely,

Janine P. Geske
cc. Attorney Eric Thompson Attorney Diane Welsh

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JEANINE B., et aI., Plaintiffs,
v.

Case No. 93-C-547 DECISION AND ORDER

JAMES DOYLE, et al., Defendants.

This matter is before me for arbitration pursuant to the settlement agreement and the consent decree ("the Agreement") entered by Judge Rudolph Ran~ District Court Judge for the Eastern District of Wisconsin on December 3, 2003 (and modified on November 14, 2003.) The Agreement provided for three annual periods during which the defendants (''the State") must meet certain child welfare outcomes for Plaintiff Class children ("plaintiffs") and performance outcomes of child welfare practice improvements in Milwaukee County.
During the second period ofthe Agreement (period 2 Corrective Action Plan known as "CAP"), there were six areas of substantial noncompliance with six enforceable measures. In light of the high caseworker turnover the State made a commitment to initiate staff retention programs. This action was included in the CAP because Bureau of Milwaukee Child Welfare ("BMCW") was out of compliance with the caseload requirement ofthe Agreement. BMCW came into compliance with the caseload requirement and have been released from that provision. Plaintiffs also sought this corrective action in light ofnoncompliance on other enforceable measures affected by turnover. These programs included salary increases and a stepped salary system for ongoing case managers, as well as educational advancement and caseworker recruitment initiatives ("recruitment and retention initiatives"). The Governor funded these initiatives for the biennium 2005-2007 by executive action after the Legislature rejected a request to appropriate the funds.
As BMCW continues to remain out ofcompliance with a number of enforceable measures affected by high caseworker turnover, the plaintiffs requested that the State agree to continue these recruitment and retention initiatives as part of an attempt to negotiate an agreement pursuant to the Consent Decree during a Period 3 CAP. The State is willing to include the specific language regarding continuation of recruitment and retention initiatives requested by the plaintiffs as long as the State can add the qualifier: "Maintenance ofthis initiative beyond the current biennium is contingent upon

1

appropriation of necessary funds." The State indicates that it remains "committed to maintaining the caseworker retention initiatives...and will make their best efforts to maintain the initiatives..."
The plaintiffs believe that the proposed language by the State gives itself an escape provision that does not adequately protect the children with a legally enforceable provision. Since the parties were unable to reach an agreement on this point, the plaintiffs filed for arbitration on this issue pursuant to Sec. IV of the Agreement.
The State accurately asserts that the level and quality of services provided to children and families by the BMCW is much higher than it was when the services were previously provided by Milwaukee County. There continues to be steady progress in serving children and families, improving day-to-day practice and strengthening accountability. There are 40% fewer children in out of home care, children are reaching permanency more quickly, children in out ofhome care receive regular visits by their caseworkers and the incidence of maltreatment in out ofhome care has significantly decreased. The State points out that of the twenty enforceable provisions under Article 1, only eight remain enforceable at this time.
The plaintiffs do not disagree that BMCW has made substantial strides towards compliance with enforceable provisions of the Agreement. However the State also cannot contest that it is out of compliance with multiple enforceable provisions ofthe
Agreement, two of them for the past three annual compliance periods. (Secs. I.B.7:
adoptions within twenty-four months; and I.D.9: placement stability.) After extensive negotiations, the plaintiffs and the State have worked out all the substantive terms of a necessary CAP, except for the staffretention initiative issues involved in this arbitration.
In 2003, the BMCW lost 98 of218 caseworkers (45%) and in 2004 it lost 129 of 233 workers (55%). According to a study commissioned by the State, the caseworker turnover ranged between 41 % and 90% in 2004. In 2005, BMCW lost 113 of210 caseworkers (54%). The State also does not dispute that the high caseworker turnover contributes to poor casework practice and worse outcomes for children, including on the enforceable measures (such as timely permanency and multiple placement moves) with which the State has been the most chronically non-compliant. (The State, however, does argue that turnover problems do not impact all areas where the BMCW has not yet reached compliance.) One of the State's experts opined that a foster child's chances of achieving permanency during an eighteen-month period in care immediately drops from a high of 74.5% for those with only one caseworker to just 17.5% for those with two caseworkers during the period. There is a direct correlation between turnover numbers of caseworkers assigned to a child and the likelihood that the child will achieve permanency. In fact in June, 2005, the Secretary ofthe Department ofHealth and Family Services wrote in a letter to the Joint Committee on Finance asking it to reconsider its vote against additional funding for caseworker retention:
The correlation between turnover and the detrimental effect on children and families is well documented. High case manager turnover forces families
2

to start over with new workers, often resulting in a lack oftrust between the case manager and the family and delays implementing service plan activities to achieve permanency... I cannot stress enough how detrimental high turnover rates are in Milwaukee County, and how vital funding salary increases are to our ability to make improvements.
In October, 2005, Burnie Bridge, Administrator of the Division of Child and Family Services, wrote a letter describing the problem:
In 2004, the plaintiffs, knowing that child welfare staffmembers are the backbone of this system, saw a soaring caseworker turnover rate. It is undisputed that consistency and continuity of case managers are important factors in achieving positive outcomes for children and families. Because turnover interferes with the continuity ofprofessional involvement between case managers and the children and families they serve, the quality of service they provide is diminished. As a result, the plaintiffs negotiated a commitment from the State that it would initiate staff retention programs. The salary increases were a critical step.
The State clearly admits the continuing need for caseworker recruitment and retention initiatives and that the initiatives in the past have led to "decreased staff turnover." The plaintiffs have demonstrated that these recruitment and retention initiatives are critical in addressing the serious caseworker turnover issue. The plaintiffs maintain that there is no issue that the continuation ofthese initiatives is necessary as corrective actions to correct past and ongoing non-compliance of Sec. IV. B ofthe Agreement. According to two reports commissioned by the State, the average difference in salary between private ongoing caseworkers and state social work staff was over $8500.00 or 26%. Both of these reports recommended that increased compensation was essential to improving the turnover problem. The State has not offered any evidence to the contrary. In fact, since the State included the recruitment and retention initiatives in September, 2005, turnover has declined. However the turnover problems continue to be a serious problem as the plaintiffs demonstrate that at the current reported rate of 14+% for the first six months of 2006, the turnover will still be nearly 30% for the year.
The State takes the position that it cannot unequivocally commit to continue these essential initiatives beyond the end of the biennium in June 2007 when the currently allocated funding ends. Although the State has admitted that these initiatives are critical to achieving quality services and positive outcomes for children, it cites its lack of legal authority to agree that it will continue to fund these corrective actions after July, 2007.
The State specifically asserts the following arguments to oppose the plaintiffs' motion to require the State to a continuation of staffrecruitment and retention initiatives included in the Period 2 CAP (although the State does indicate that it supports continuation ofthe caseworker recruitment and retention initiatives):
3

1.) Neither the defendants nor the arbitrator, through the deVelopment of a Corrective Action Plan, have the legal authority to bind a future legislature to provide funding for a specific appropriation.
2.) What corrective actions may be needed in mid-2007 is an issue to decide at that time, and not now.
The Agreement between the plaintiffs and the State provided that, when the State was not in compliance with the Agreement, the parties could allow the State to agree to "necessary corrective actions." When caseworker turnover continued to be chronically high, rising as high as 55% annually, no one can dispute that the children in the plaintiffs' class were being seriously impacted. In fact, failure to continue the recruitment and retention initiatives to reduce that number seriously jeopardizes any chance to remedy the ongoing record of noncompliance with the Agreement. The State has reached compliance on most ofthe required provisions and continues to make substantial improvement on most of the remaining provisions. I would also note that even during times of high turnover, BMCW made significant progress in improving services to children. BMCW is well on its way to meeting the remaining requirements
The State accurately argues that "the Settlement Agreement did not [specifically] require the State to implement caseworker retention," But then the State takes the position that its previously negotiated corrective actions do not become part of the consent agreement. I disagree. The State may not continue to be out of compliance with a number of enforceable provisions impacted by the high turnover rate and then argue that it cannot commit to taking essential actions because of a potential lack of funding. Despite the State's argument to the contrary, once the parties enter into a corrective action agreement, it becomes part ofthe enforceable settlement terms ofthe Agreement. until compliance is reached on the requirement for which the corrective action was being taken or until a subsequent corrective action plan has been negotiated.
Although the State argues that it cannot be bound to future based corrective actions, the negotiated corrective plan necessarily involves prospective remedies. This year although the Legislature refused to appropriate funds to continue these recruitment and retention initiatives, Governor Doyle authorized some unexpended funds to be used for those purposes. The State argues that I, acting for the federal court, cannot bind the Legislature to appropriating similar funding for next year.
Specifically, based upon a theory of separation of powers, the State argues that I cannot order the State to continue these initiatives because a federal court does not have the legal authority to bind a future legislature to provide funding for a specific appropriation. The State's initial brief argues at length about the constitutional authority to appropriate funds. The plaintiffs do not disagree that it is the Legislature that has the authority for appropriation ofmonies. However the plaintiffs maintain that they are not requesting that I order the Legislature to make any appropriations. They clearly admit that there are costs associated with maintaining the existing initiatives. The plaintiffs are not requesting that those initiatives be funded from any particular source. The State
4

concedes that should the Legislature again refuse to appropriate funds for the recruitment and retention initiatives that they ''would have the authority to reallocate available funds" to maintain the initiatives. They also pointed out that such reallocation is only available if there are in fact surplus funds.
The plaintiffs request is for an order compelling the State to continue the recruitment and retention initiatives. They are asking to hold the State to the Agreement it previously entered into for the benefit of the children in Milwaukee County. It agreed to come into compliance with all the standards outlined in that Agreement and to utilize all corrective actions it has agreed to. The State cannot agree to a corrective action to address turnover, not reach full compliance on measures substantially impacted by the large number of turnovers, and then decide it will not fund necessary actions to continue to move toward compliance.
The State's argument about its inability to commit the Legislature to make future appropriations misses the point. The State cannot agree to a settlement in federal court which requires either compliance with a number ofprovisions for the benefit of Milwaukee County children or negotiated corrective actions and then now argue that it only has to follow through on the necessary corrective actions ifthe Legislature decides to appropriate funding next year. The State must live up to its previously negotiated commitments which include the recruitment and retention initiatives until it achieves compliance with the standards.
The plaintiffs are not urging me to order a specific "appropriation" but that the State continue to engage in the necessary corrective actions that have ancillary costs, appropriate to secure belated compliance with the district court's order. The State cannot meet the requirements of the Agreement by conditionally committing to the caseworker recruitment and retention depending on what the Legislature decides to do. The U.S. Supreme Court points out in Frew v. Hawkins, 540 U.S. 431, 438 (2004) that "federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced." Id. At 440.
The plaintiffs correctly assert that since the caseworker initiatives are a "necessary corrective action" required by the Settlement Agreement-a federal court consent decree-state law prohibitions "cannot survive the command ofthe Supremacy Clause of the United Stares Constitution.' A federal court remedy to secure prospective relief can be enforced "notwithstanding a direct and substantial impact on the state treasury." Milliken v. Bradley, 433 U.S. 267, 293 (1977). Although the State correctly argues that Milliken is factually very different than this case because it involved a school desegregation order in which the State of Michigan had been ordered to pay unappropriated funds to the Detroit School System after having been found to have been a participant in constitutional violations. However, the case does stand for the general proposition that (at least under some circumstances) a federal court may order a state legislature to expend unappropriated funds.
5

A federal court order issued by consent in settlement of the case is no less enforceable. Frew, Id., In Frew, the State of Texas had entered a consent decree which required state officials to implement specific proposals. Two years later, the petitioners filed a motion to enforce the provisions of the decree. The state officials argued that the federal court could not enforce federal consent decrees involving state officials. The U.S. Supreme Court held for the petitioners on that issue.
The plaintiffs also cite to a federal district court case which is relatively similar to the situation here. Juan F. 2004 WL 288894 In this child welfare case, the defendants challenged the court monitor's Exit Plan which would have required "funding and resources necessary to implement the Exit Plan," on the grounds that it required the expenditure ofunappropirated state funds. The court held for the plaintiffs in deciding that it did in fact have the authority to require the State to provide the necessary funding for the implementation of the consent decrees. In fact, the court in Juan F. wrote that "rather, if a state agency refuses to adhere to a consent decree, the court may impose such prospective ancillary relief, including frnancial sanctions, that is necessary to insure compliance." Id. at 1.
The State argues that all the cases cited by the plaintiffs are distinguishable, in part, because here "the defendants agreed to a set of actions and performance standards. The Settlement Agreement makes no commitment to appropriate state funds." (p. 5 of Defendant's Rebuttal to Plaintiffs' Reply Brief.) The problem with that argument is that agreeing to take those actions and to meet those standards, there are obviously costs involved, just like the cost of recruitment and retention initiatives. The second problem with the State's argument is that in that same Agreement, it also agreed to negotiate "corrective actions" when it failed to meet the requirements ofthe Agreement. The plaintiffs are simply asking that the State live up to those actions.
There is no question that the recruitment and retention initiatives are essential corrective actions to reverse the continuing problems experienced by the State in retention of caseworkers. This record is replete with evidence that clearly demonstrates that the more turnover in caseworkers assigned to a child, the less likely the child will achieve permanency. As previously discussed, the State cites to many authorities that hold that the authority to appropriate funds rests solely with the Legislature. However to carry the State's argument to an extreme, ifthe Legislature decides it does not want to fund anything that the State needs to do to become compliant with the federal court consent decree, there would be no way to enforce the agreements previously reached by the parties to avert an arbitration for noncompliance.
The State also argues that Section IV. B. of the Agreement provides that corrective actions will be identified after notice of noncompliance with any ofthe provisions. But here, the plaintiffs have demonstrated that the State will not be in compliance at the end of 2006 despite its steady and consistent progress toward achieving the requirements of the Agreement. It is also undisputed in this case that the State has
6

been out of compliance since the 2003 Agreement and will continue to be out of compliance at the end of this year on issues substantially impacted by the retention of caseworkers.
Although the State maintains that I cannot proceed at this point because it is premature to decide what corrective action may be needed in mid-2007, I am convinced by the plaintiffs' argument that deferring this issue until then could easily jeopardize retention of caseworkers causing harm to the children in the Class. Since the State must acknowledge that it will continue to be out of compliance with the Settlement Agreement for the 2006 annual compliance period, this matter is appropriately before me now.
Contrary to the position of the State, I am not ordering that the Legislature appropriate funding. The State is bound by the Settlement Agreement it signed which required "necessary corrective actions" when it continued to be out of compliance ofthe. standards and outcomes ofthe federal court order. The parties could either agree to corrective actions, or if they could not reach an agreement, then an arbitrator would make the determination. I am mindful that this order will have a significant fiscal impact. The State, however, is bound to the previously agreed upon corrective actions until compliance is reached on the requirement(s) for which the corrective action was being taken or until a subsequent corrective action plan has been negotiated. I am ordering that, as previously agreed, the State continue its recruitment and retention programs for caseworkers for the Period 3 CAP. THEREFORE, based upon this record, IT IS HEREBY ORDERED that the pursuant to Sec. IV.C. of the Agreement that the Period 3 CAP include a commitment by defendants to the continuation oftheir recruitment and retention initiatives for caseworkers as previously initiated pursuant to the Period 2 CAP. Dated at Milwaukee, Wisconsin this 17th day ofNovember, 2006
BY THE ARBITRATOR:
7

 
 04/21/2008 08:00 IFAX

• .Jacki

~ill 0 0 1/0 05

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTR!CT OF WISCONSIN

JEANINE B., eta!., Plaintiffs,
v. JAMES E. DOYLE, eta!.,
Defendants.

Case No. 93-C-547

CONSENT ORDER

1. WHEREAS plaintiffs are monitoring compliance with the Settlement Agreement approved by Order of this Court on December 2, 2002, and for the purpose of monitoring or enforcing settlement compliance may require access to various records kept about class members in the care and custody of the Bureau of Milwaukee Child Welfare ("BMCW");
2. WHEREAS certain records about children in the care or custody of the BMCW are confidential under Wis. Stat. § 48.78, and can only be disclosed under specified circumstances, including by order of the court pursuant to
Wis. Stat. § 48.78(2)(a); 3. WHEREAS BMCW is a subdivision of defendant Wisconsin Department of
Health and Family Services ("DHFS");

Case 2:93-cv-00547-RTR Filed 04/18/08 Page 1 of 5 Document 545

04/21/2008 08:00 IFAX

• .Jacki

~ill (J(J2,/(J(J5

4. WHEREAS DHFS will split into two newly created departments, effective July I, 2008, and BMCW thereafter will be a subdivision of the newly created Wisconsin Department of Children and Families ("DCF");
5. WHEREAS the parties agree to substitute DCF for defendant DHFS in this lawsuit pursuant to Fed. R. Civ. P. 25(c) contemporaneously with the July 1, 2008, effective date for DCF operation, waiving the notice and hearing provisions of Fed. R. Civ. P. 25(a)(3) and (c); and
6. WHEREAS the parties consent to this form of Order and stipulate to its
provisions; IT IS HEREBY ORDERED that:
7_ DCF is substituted for defendant DHFS effective July I, 2008; 8. DHFS and DCF are authorized to disclose confidential records and
information about class members in the care and custody of the BMCW, or any successor subdivision of DCF, to legal counsel for the parties as necessary for monitoring, modification and enforcement of the settlement agreement in this case approved in December 2002; 9. Except as provided in paragraphs I0 and 11 of this Order or as otherwise permitted in Wis. Stat.§§ 48.78 and 48.981(7), neither the parties nor their legal counsel shall disclose to any person any confidential records or information described in paragraph 8 of this Order; I0. A party and the party's legal counsel may disclose the confidential records and information described in paragraph 8 of this Order to employees of the party's legal counsel who are assisting in the monitoring of this case and to
2 Case 2:93-cv-00547-RTR Filed 04/18/08 Page 2 of 5 Document 545

04/21/2008 08:00 IFAX

• Jacki

~ 003/005

professionals (experts) and their employees who have been retained by a party in connection with this case. A person to whom a disclosure is made pursuant to this paragraph may re-disclose such information only to a party's legal counsel or to a person otherwise entitled under this Order to receive the information. Before disclosing any information subject to this paragraph, the person making the disclosure shall inform the person to whom the disclosure is made of the contents of this Order. A party or other person authorized to disclose confidential information under this paragraph shall only do so in connection with monitoring, modification or enforcement of the December 2002 settlement approved in this case and shall limit the disclosure to that which is necessary for such monitoring, modification or enforcement; 11. A party and the party's legal counsel may disclose the confidential records and information described in paragraph 8 of this Order to the Court or to any mediator or arbitrator in connection with settlement monitoring, modification or enforcement proceedings in this case, and, as necessary in those proceedings, to employees of the Court, a mediator or a:n arbitrator. A person to whom a disclosure is made pursuant to this paragraph may re-disclose such information only to a party's legal counsel or to a person otherwise entitled
under this Order to receive the information. Before disclosing any information subject to this paragraph, the person making the disclosure shall inform the person to whom the disclosure is made of the contents of this Order. A party or other person authorized to disclose confidential information under this paragraph shall only do so in connection with monitoring,
3 Case 2:93-cv-00547-RTR Filed 04/18/08 Page 3 of 5 Document 545

04/21/2008 08:00 IFAX

• Jacki

~ 004/005

modification or enforcement of the December 2002 settlement approved in this case and shall limit the disclosure to that which is necessary for such
monitoring, modification or enforcement; and 12. In any proceeding in this case in which any party intends to make use of
records or information produced pursuant to paragraph 8 of this Order, the names, addresses, and any other personally identifying information of any class members, their family members, or other protected individuals shall be redacted. Age or year of birth need not be redacted when age of a class member or other individual is relevant and material to the proceeding in which
the records or information are produced.
FOR PLAINTIFFS:
Is Ertc Thompson Eric Thompson, Esq. Children's Rights, Inc. 330 Seventh Ave., 41h floor New York, N.Y. !0001 (212) 683-2210 Dated: April 16, 2008
Attorneys for Jeanine B., et al.

4
Case 2:93-cv-00547-RTR Filed 04/18/08 Page 4 of 5 Document 545

04/21/2008 08:00 IFAX _,_..,.:--··

• Jacki

FOR DEFENDANTS:
/s Mary E. Burke Mary E. Burke Assistant Attorney General Wisconsin Department of Justice Post Office Box 7857 Madison, WI 53707-7857 Dated: April 15, 2008
Attorneys for James E. Doyle, et al.

this~ SO ORDERED·

Dated

of

BY THE COURT:

~ 005/005

5 Case 2:93-cv-00547-RTR Filed 04/18/08 Page 5 of 5 Document 545

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JEANINE B., by her next friend

:

Robert Blondis, et al.,

:

:

Plaintiffs, :

:

v.

:

:

SCOTT WALKER, et al.

:

:

:

Defendants.

:

CLASS ACTION
CIVIL ACTION NO. 93-C-0547

SECOND MODIFIED SETTLEMENT AGREEMENT

WHEREAS, Plaintiffs brought this lawsuit by class action complaint filed June 1, 1993, seeking declaratory and injunctive relief against the Governor and other defendant officials of the State of Wisconsin and of Milwaukee County, based on alleged system-wide deficiencies in the Milwaukee child welfare system; and
WHEREAS, in response to the lawsuit, the State Defendants implemented a State takeover of the child welfare system in Milwaukee County, effective January 1, 1998, for the purpose of improving the safety and well-being of the plaintiff class of children; and
WHEREAS, Plaintiffs filed a Supplemental Complaint on June 2, 1999, and an Amended Supplemental Complaint on December 1, 2000, alleging continuing deficiencies of the child welfare system in Milwaukee; and
WHEREAS, the State Defendants have achieved needed reforms significantly improving the safety and well-being of the plaintiff class of children in the custody of the Bureau of Milwaukee Child Welfare (BMCW); and
WHEREAS, the State Defendants recognize that this lawsuit has helped achieve those reforms;
NOW THEREFORE, in consideration of the undertakings set forth herein and intending to be legally bound thereby, it is stipulated and agreed to by the Plaintiffs and the Defendants, represented by their undersigned counsel, that all of Plaintiffs’ claims for relief which were or could have been asserted in this action shall be fully resolved on the following terms as set forth in this Settlement Agreement.

Case 2:93-cv-00547-RTR Filed 05/31/12 Page 1 of 11 Document 569

I. ENSURING PERMANENCE, SAFETY AND CHILD WELL-BEING

A. Child welfare outcomes for plaintiff class children and performance measures of child welfare practice improvements will be phased in over three one-year periods beginning January 1, 2003, January 1, 2004 and January 1, 2005, respectively. Those periods are respectively referred to hereinafter as Period 1, Period 2 and Period 3. If defendants are not in compliance with a requirement of this Agreement at the end of Period 3 as acknowledged by defendants or determined by the arbitrator, the Period 3 requirement remains in effect until defendants comply, governed by provisions of this Agreement relating to that requirement unless the parties mutually agree to termination or modification.

B. Permanence

1. The parties will negotiate in good faith as soon as practicable with the Milwaukee County District Attorney to ensure adequate legal representation for the prosecution of termination of parental rights (TPRs) petitions, consistent with ASFA requirements.

2. At least the following percentages of children in BMCW custody reaching 15 of the last 22 months in out-of-home care during the period shall have had a TPR petition filed on their behalf, or an available Adoption and Safe Families Act (ASFA) exception documented in their case, by the end of their fifteenth month in care. In accordance with the court’s decision of June 19, 2001, plaintiffs are prohibited from challenging or asking the arbitrator or federal district court to alter defendants’ discretionary determination that one or more of ASFA’s exceptions apply, where defendants have documented an available exception. Placement with a relative in a particular case and documentation that TPR is not being pursued because of that placement satisfies the ASFA relative placement exception requirement.

Period 1

65%

Period 2

75%

Period 3

90%

3. At least the following percentages of children in BMCW custody for more than 15 of the last 22 months in out-of-home care without a TPR previously filed or an available exception previously documented shall have had a TPR petition filed on their behalf, or an available Adoption and Safe Families Act (ASFA) exception documented in their case by the end of the period. In accordance with the court’s decision of June 19, 2001, plaintiffs are prohibited from challenging or asking the arbitrator or federal district court to alter defendants’ discretionary determination that one or more of ASFA’s exceptions apply, where defendants have documented an available

Page 2 of 11

Case 2:93-cv-00547-RTR Filed 05/31/12 Page 2 of 11 Document 569

exception. Placement with a relative in a particular case and documentation that TPR is not being pursued because of that placement satisfies the ASFA relative placement exception requirement.

Period 1

75%

Period 2

85%

Period 3

90%

4. If the State does not obtain a federal Title IV-E waiver allowing subsidized guardianship before January 1, 2003, then no more than the following percentages of children in BMCW out-of-home care within the period shall be in care for more than 24 months. The percentage shall be calculated against a baseline of 5533 children in BMCW out-of-home care.

Period 1

40%

Period 2

35%

Period 3

25%

5. If the State successfully obtains a federal Title IV-E waiver allowing subsidized guardianship before January 1, 2003, then no more than the following percentages of children in BMCW out-of-home care within the period shall be in care for more than 24 months. The percentage shall be calculated against a baseline of 5533 children in BMCW out-of-home care.

Period 1

40%

Period 2

30%

Period 3

20%

6. At least the following percentages of children who are reunified with parents or caretakers at the time of discharge from BMCW out-of-home care within the period shall be reunified within 12 months of entry into care.

Period 1 Period 2 Period 3

to be monitored only 65% 71%

Page 3 of 11 Case 2:93-cv-00547-RTR Filed 05/31/12 Page 3 of 11 Document 569

7. At least the following percentage of children for whom an adoption is finalized within the period shall exit BMCW out-of-home care within 24 months of entry into care.

Period 1

20%

Period 2

25%

Period 3

30%

C. Safety

1. No more than the following percentages of children in BMCW custody shall be the victims of substantiated abuse or neglect allegations within the period by a foster parent or staff of a facility required to be licensed.

Period 1 Period 2 Period 3

.70% .65% .60%

2. At least the following percentages of reports within the period alleging abuse or neglect of a child in BMCW custody shall be referred to the independent investigation agency for independent investigation within three business days.

Period 1

80%

Period 2

85%

Period 3

90%

3 At least the following percentages of reports referred for independent investigation within the period shall be assigned to an independent investigator by the independent investigation agency within three business days of the independent investigation agency’s receipt of the referral from BMCW.

Period 1

80%

Period 2

85%

Period 3

90%

Page 4 of 11 Case 2:93-cv-00547-RTR Filed 05/31/12 Page 4 of 11 Document 569

4. The determination required by section 48.981(3)(c)4. of the Wisconsin Statutes must be made within 60 days of receipt of the referral by the independent investigation agency in at least the following percentages of independent investigations referred by BMCW.

Period 1

80%

Period 2

85%

Period 3

90%

D. Child Well-Being

1. BMCW shall ensure that ongoing case managers shall have caseloads not to exceed an average for each BMCW case management Site of 11 families per case-carrying manager. Compliance with this requirement at any given point in time shall be measured by averaging each Site’s current monthly caseload average with the corresponding Site averages for the preceding 2 months.

2. The above provision shall be phased in incrementally and shall be fully effective by Jan. 1, 2004, but not enforceable until April 1, 2004. During the phase-in period, commencing January 1, 2003, no Site shall have average caseloads of over 13 families per case-carrying ongoing case manager.
3. By January 1, 2003, and thereafter for the duration of this agreement, BMCW will include a contract holdback provision in its BMCW Site case management contracts for each BMCW case management site that will impose a sufficient holdback on each site that does not meet 90 % compliance with monthly face-to-face visits of children in BMCW custody by their case manager.

4. BMCW will enforce the monthly face-to-face visits holdback provisions in case of noncompliance for the months beginning with July, 2003.

5. The use of shelter placements shall be phased out entirely.

6. By December 31, 2003, and thereafter, no child shall be placed in a shelter.

7. By December 31, 2003, BMCW shall develop special diagnostic/assessment centers for children over 12 years of age who need further assessment in order to determine the appropriate placement. Placement in such centers shall not exceed 30 days, or 60 days if the placement is extended in accordance with applicable state law.

Page 5 of 11 Case 2:93-cv-00547-RTR Filed 05/31/12 Page 5 of 11 Document 569

8. The Division of Children and Family Services shall make its best efforts to seek legislative approval of foster parent reimbursement rates consistent with USDA standards.

9. At least the following percentages of children in BMCW custody within the period shall have had three or fewer placements during the previous 36 calendar months of their current episode in BMCW custody. The number of placements will exclude time-limited respite care placements and returns to the same caretaker after an intervening placement during the same outof-care episode. Those children in BMCW custody through the Wraparound Milwaukee program shall be excluded from this calculation. Initial assessment center placements also will be excluded from this calculation.

Period 1

80%

Period 2

82%

Period 3

90%

II. NAMED PLAINTIFFS
BMCW will supply Plaintiffs’ counsel with quarterly updates of the named plaintiffs’ case records until an adoption is finalized, a permanent guardianship order is entered or the child is no longer in BMCW custody. The parties will engage in monthly good faith discussions concerning the appropriateness of the care and treatment of the named plaintiffs until an adoption is finalized, a permanent guardianship order is entered or the child is no longer in BMCW custody, except that defendants agree to the post-adoption services described below. In the event that the parties dispute appropriateness of the services and treatment plans to be provided prior to adoption for the named plaintiffs, the parties will refer the dispute to the arbitrator for a resolution that is binding on the parties. Notwithstanding V.C., before the parties can move the court for termination of the Agreement, the parties must agree, or the arbitrator must determine, that as to any of the named plaintiffs who has not had an adoption finalized or a permanent guardianship order entered, and who is still in BMCW custody, the defendants have substantially complied with the corresponding section below.
A. Danny C. and Frank M. BMCW shall continue to pursue the adoption of Danny C. and Frank M. by their current foster parents, and shall provide individual postadoption counseling for both boys as long as it is recommended by their therapist and consented to by their foster/adoptive parents.
B. Corey H. BMCW shall continue to pursue the adoption of Corey H. by identifying and approving a qualified adoptive family with whom he can be placed as soon as practicable. All necessary services identified by BMCW will be
Page 6 of 11
Case 2:93-cv-00547-RTR Filed 05/31/12 Page 6 of 11 Document 569

provided to continue to support an adoptive placement. Additionally, BMCW shall ensure that he remains eligible for Title XIX medical coverage post-adoption through an adoption subsidy agreement.
C. Julie R. BMCW shall continue to pursue the adoption of Julie R. by her current foster parent, shall continue to make efforts to keep Julie R. placed in a home with her sisters, shall continue to provide mentoring services to her and shall continue to coordinate special education services for her. Additionally, BMCW shall assure that she remains eligible for Title XIX medical coverage post-adoption through an adoption subsidy agreement.
D. Diana H. BMCW shall continue to pursue the adoption of Diana H. by her current foster parents, and shall assure that she remains eligible for Title XIX medical coverage post-adoption through an adoption subsidy agreement.
III. MONITORING
A. The BMCW Program Evaluation Managers (PEMs) will conduct a comprehensive review (such as conducted for the second quarter 2000) at least once each period, which, upon completion, shall promptly be made publicly available.
B. Monitoring of and reporting on all the elements specified in Article I of this Agreement shall be conducted by the BMCW PEMs on a semi-annual basis and, upon completion, shall promptly be made publicly available. At the conclusion of Period 3, monitoring will continue only with regard to Article I requirements that remain unmet and in effect pursuant to I.A.
C. In addition to reporting on the elements specified in Article I of this Agreement, the PEMS shall also monitor and report on the following elements in their semiannual monitoring reports. The conducting of reviews and the production of reports on these elements by the PEMS shall constitute compliance with this subsection, and these elements and related findings are not enforceable under this Agreement. The requirement to conduct reviews and produce reports under this section terminates on December 31, 2005.
1. BMCW provision of an initial family assessment for all children within 90 days of their first placement;
2. BMCW provision of an initial medical examination for all children within 5 business days of their first placement, except for children discharged from hospital to placement;
Page 7 of 11
Case 2:93-cv-00547-RTR Filed 05/31/12 Page 7 of 11 Document 569

3. BMCW provision of a complete placement information packet regarding a child’s health and educational background for a random sample of at least 50 children being placed with a new caretaker;
4. BMCW referral of children in BMCW custody to health care services and utilization of health care services, including regular pediatric medical and dental examinations;
5. BMCW compliance with the federal standard for an initial case plan/permanency plan for all children within 60 days of entering BMCW custody;
6. State compliance with the federal requirement for a judicial or administrative permanency plan review every 6 months, and at least one judicial permanency plan review annually;
7. The percentage of children re-entering BMCW out-of-home care within the period who have re-entered care within 12 months of a prior BMCW outof-home care episode; and
8. Ongoing case manager turnover rates per BMCW case management Site, identifying the number of ongoing case managers carrying cases at the beginning of the reporting period, the number of ongoing case managers carrying cases who leave for any reason during the reporting period, and the number of ongoing case managers carrying cases added during the period.
9. The monthly caseload averages of children per ongoing case manager carrying cases, for each BMCW case management Site, including the maximum and minimum number of children at the end of the month per manager.
IV. ENFORCEMENT
A. If Plaintiffs determine based upon their good faith review of available evidence, that Defendants are out of compliance with any provision of this Agreement, Plaintiffs will notify Defendants in writing accompanied by supporting documentation.
B. The parties shall engage in a good faith negotiation to reach agreement within 45 days of the receipt by the Defendants of any alleged noncompliance and any necessary corrective actions, including a time period for implementation of such corrective actions, and shall make all reasonable efforts to reach agreement. This
Page 8 of 11
Case 2:93-cv-00547-RTR Filed 05/31/12 Page 8 of 11 Document 569

45 day time period can be extended by mutual agreement, or in the absence of agreement, can be extended for one 30 day period by either party.
C. If no agreement on the issue of noncompliance or necessary corrective action is reached within the timeframe set in IV.B., the dispute will be submitted to an arbitrator agreed upon by the parties for a determination of compliance or noncompliance and appropriate corrective action.
D. A determination of the arbitrator is binding on the parties. A party wishing to enforce or challenge an arbitrator determination may do so by filing a motion with the court within 30 days for non-compliance, contempt, remedial actions, or modification or rejection of the arbitrator’s findings. The parties shall not object to, or seek modification of, the arbitrator’s determinations or findings except on grounds that they are clearly erroneous as a matter of fact or law.
E. If the implementation of corrective actions fails and noncompliance continues, the parties shall re-engage in good faith negotiations under paragraphs A. and B.
F. Plaintiffs shall not seek any enforcement action, including submission of a dispute to the arbitrator, for the first six months after the signing of this Agreement or July 1, 2003, whichever is later, except that good faith negotiations under A. and B. may commence six months after the signing of this Agreement.
G. The court shall retain ultimate jurisdiction to enforce this Agreement.
H. All of the provisions of this Agreement are separately and independently enforceable, except where the Agreement provides that an element or provision is not enforceable.
V. TERMINATION AND EXIT
A. Defendants shall be determined in compliance with any Article I requirement of this Agreement for any period in which a semi-annual PEM report during the period indicates compliance. Defendants may at any time after July 1, 2004 seek an arbitrator determination that they have met the requirements of any specific provision of Article I of this Agreement and are no longer subject to enforcement of that provision, including a determination that they have met the requirements of a Period 3 percentage standard during the most recent two consecutive six-month intervals. Where plaintiffs acknowledge or the arbitrator determines that defendants have met the requirements of a specific Article I provision during the most recent two consecutive six-month intervals, monitoring of that provision shall continue until this Agreement is terminated, but that provision shall no longer be enforceable under this Agreement.
Page 9 of 11
Case 2:93-cv-00547-RTR Filed 05/31/12 Page 9 of 11 Document 569

B. The arbitrator’s determinations under V.A. shall be binding on the parties. A party wishing to enforce or challenge an arbitrator determination may do so by filing a motion with the Court. The parties shall not object to the arbitrator’s determinations or findings except on grounds that they are clearly erroneous as a matter of fact or law.
C. When the arbitrator determines that defendants have complied with all provisions of Article I of this Agreement, the parties shall jointly move the court for termination of the Agreement. This Agreement shall remain in full force and effect until the Court terminates jurisdiction.
VI. MISCELLANEOUS
A. The terms of this Agreement apply to children who are or will be in BMCW custody.
B. Definitions:
1. Out-of-home care shall be defined consistent with the federal ASFA definition of foster care.
2. BMCW custody shall mean physical and/or legal custody.
3. Independent investigations are all investigations of abuse and neglect of children in BMCW custody required by state law to be referred to an independent agency.
4. Ongoing case managers means those persons currently employed by BMCW, and BMCW’s vendor agencies, who provide case management services to children in BMCW custody.
5. Shelters shall mean non-foster home placements designed for emergency short-term placements.
C. Reports and other documentation produced by the PEMS or WISACWIS are presumed regular and correct.
D. Time shall be computed under sections 990.001(4) and 801.15(1)(a) of the Wisconsin Statutes.
E. Forthwith upon the Court’s approval of the Settlement Agreement, the State of Wisconsin will cause to be transmitted to plaintiffs’ attorneys the sum of Nine Hundred and Fifty Thousand Dollars ($950,000) in full and final settlement of any and all claims plaintiffs may have for attorneys’ fees and costs, including any costs
Page 10 of 11
Case 2:93-cv-00547-RTR Filed 05/31/12 Page 10 of 11 Document 569

incurred by plaintiffs for the services of expert witnesses, arising from this litigation through the date the Court approves the Settlement Agreement.

FOR PLAINTIFFS:

s/ Eric E. Thompson, Esq. Eric E. Thompson, Esq. Mass BBO #565100 Marcia Robinson Lowry, Esq. Attorneys for Plaintiffs CHILDREN’S RIGHTS, INC. 330 7th Avenue, 4th Floor New York, N.Y. 10001 Telephone: (212) 683-2210 Fax: (212) 683-4015 E-mail: ethompson@childrensrights.org

4/11/12 DATE

FOR DEFENDANTS:
s/ Mary E. Burke Mary E. Burke Assistant Attorney General State Bar #1015694 Attorney for Defendants Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, Wisconsin 53707-7857 Telephone: (608) 266-0323 Fax: (608) 267-2223 E-mail: burkeme@doj.state.wi.us

4/11/12 DATE

SO ORDERED:

______________________________ Honorable Rudolph T. Randa United States District Judge

Page 11 of 11

May 31, 2012 DATE

Case 2:93-cv-00547-RTR Filed 05/31/12 Page 11 of 11 Document 569

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,
v. SCOTT WALKER, et al.,
Defendants.

Case No. 93-C-547

ORDER APPROVING MODIFICATION OF SECTION I.D.9. OF THE MODIFIED SETTLEMENT AGREEMENT

Pursuant to Fed. R. Civ. P. 60(b)(6), having reviewed the defendants’ Unopposed Motion to Modify Section I.D.9. of the Modified Settlement Agreement, Approve the Proposed Notice to the Class, and Approve the Proposed Plan for Dissemination of Notice and Submission of Comments (the “Motion”) and its attached exhibits; the defendants’ Memorandum in Support of the Motion; and the defendants’ Supplemental Memorandum in Support of the Motion and its supporting affidavits; and having received no comments or objections regarding the proposed Section I.D.9. modification, the Court for good cause shown hereby:
1. ORDERS that modifying Section I.D.9. of the Modified Settlement Agreement as set forth in the Motion constitutes just terms for and reasons warranting relief from the current provisions of Section I.D.9. of the Modified Settlement Agreement.

Case 2:93-cv-00547-RTR Filed 05/31/12 Page 1 of 2 Document 568

2. ORDERS that Section I.D.9. of the Modified Settlement Agreement shall be modified as follows (deleted language indicated by strike-through, new language indicated by underline):
At least the following percentages of children in BMCW custody within the period shall have had three or fewer placements after January 1, 1999, during the previous 36 calendar months of their current episode in BMCW custody. The number of placements will exclude time-limited respite care placements and returns to the same caregiver after an intervening placement during the same out of care episode. Those children in BMCW custody through the Wraparound Milwaukee program shall be excluded from this calculation. Initial assessment center placements also will be excluded from the calculation.
Period 1 80% Period 2 82% Period 3 90% The Second Modified Settlement Agreement reflecting this change will be endorsed by the Court on this date. 3. ORDERS that the effective date for this modification of Section I.D.9. shall be July 1, 2012. Dated at Milwaukee, Wisconsin, this 31st day of May, 2012.
SO ORDERED:
______________________________________ THE HONORABLE RUDOLPH T. RANDA United States District Judge
- 2 Case 2:93-cv-00547-RTR Filed 05/31/12 Page 2 of 2 Document 568

 
 1268

877 FEDERAL SUPPLEMENT

subject matter jurisdiction is absent insofar as the action is one seeking adjudication of the merits of an intratribal dispute.
Because I have determined that federal subject matter jurisdiction is absent, I must also conclude that this court lacks supplemental jurisdiction over the plaintiffs state law wrongful termination and assault and battery claims. See 28 U.S.C. § 1367(a). Accordingly, the portion of the defendants' motion seeking dismissal of the plaintiffs action for lack of subject matter jurisdiction under Rule 12(b)(1), Federal Rules of Civil Procedure, will be granted. The portion of the defendants' motion seeking dismissal of the plaintiffs action for failure to state a claim upon which relief can be granted under Rule 12(b)(6), Federal Rules of Civil Procedure, will be dismissed, as moot.
ORDER
Therefore, IT IS ORDERED that the portion of the defendants' motion seeking dismissal for lack of subject matter jurisdiction under Rule 12(b)(1), Federal Rules of Civil Procedure, be and hereby is granted.
IT IS ALSO ORDERED that the portion of the defendants' motion seeking dismissal for failure to state a claim upon which relief can be granted under Rule 12(b)(6), Federal Rules of Civil Procedure, be and hereby is dismissed, as moot.
IT IS FURTHER ORDERED that the plaintiffs action be and hereby is dismissed, with costs and with prejudice.
JEANINE B., by her next friend Robert BLONDIS; Aline H. by her next friend Wesley Scott; Maurice R. by his next friend Wesley Scott; Douglas R. by his next friend Wesley Scott; Carolyn D. by her next friend Cynthia Lepkowski; James B. by his next friend Mary Protz; Mindi D. by her next friend Sheila

Smith; Alan A. by his next friend Sheila Hill-Roberts; Darren C. by his next friend Chris Velnetske; Alissa S. by her next friend Ann Marie Abell; Roxanne F. by her next friend Julia Vosper; Patricia S. by her next friend Oshiyemi Adelabu; Jocelyn Z. by her next friend Jane Moore; Derrick Z. by his next friend Jane Moore; Karen M. by her next friend Joan Zawikowski, individually and on behalf of all others similarly situated, Plaintiffs,
v.
Tommy G. THOMPSON, in his official capacity as Governor of the State of Wisconsin; Richard Lorang, in his official capacity as Acting Secretary of the Department of Health and Social Services of the State of Wisconsin; F. Thomas Ament, in his official capacity as the County Executive of the County of Milwaukee; and Thomas Brophy, in his of-
ficial capacity as r' ~tor of the Mil-
waukee County Department of Human Services, Defendants.
Civ. A. No. 93-C-547.
United States District Court, E.D. Wisconsin.
March 2, 1995.
Children who were or allegedly should have been in county foster care system filed class action against state and county officials alleging that system provided grossly inadequate care, and state defendants moved to dismiss. The District Court, Reynolds, J., held that: (1) children sufficiently stated claim of supervisory liability under § 1983 against state officials for counties' alleged violations of children's substantive due process rights; (2) provisions of Adoption Assistance Act governing foster care system plans and requiring state to implement various systems in order for state to receive federal funding created rights enforceable by children under § 1983; (3) Child Abuse Prevention and Treatment Act (CAPTA) expressly conditioned receipt of federal funding upon state's compliance with its requirements and, thus, created rights enforceable under

------------------

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.Wis. 1995)

1269

§ 1983; (4) children failed to state § 1983 deliberate indifference to rights of people

e1aims against state officials for violations of with whom subordinates come in. contact, or

:Rehabilitation Act and Americans with Dis- if supervisory officials create policies and

abilities Act (ADA); and (5) District Court practices pursuant to which constitutional de-

would certify class made up of two subclasses privation is carried out. 42 U.S.C.A. § 1983.

eonsisting of children in foster care of county and children for whom county had received reports of neglect or abuse but who were not within foster care custody.
Ordered accordingly.

5. Civil Rights €=>108.1
Federal funding statutes create rights enforceable under § 1983 if statutes themselves created enforceable rightB, privileges or immunities. 42 U.S.C.A. § 1983.

1. Civil Rights €=>207(1)
Declaratory Judgment €=>303
State officials could be sued in their official capacities under § 1983 only for proBpective injunctive or declaratory relief and monetary damages ancillary to either. 42 U.S.C.A. § 1983.
:t Constitutional Law €=>82(6.1)
Although Constitution generally does not require governments to act affirmatively to provide services and care, affirmative duties may arise if special relationship exists Buch as when plaintiff is in government custody.
iI. Civil Rights €=>235(1)
Foster care children in custody of county sufficiently stated claim of supervisory liability under § 1983 against state officials for county's alleged violations of children's ~:ubstantive due process rights concerning grossly inadequate care, based on state. governmental structure, various state and federal statutes requiring state to devise and over~,ee foster care policies, and federal funding E,tatutes conditioning grant of funds to state on obligation of state to supervise foster care programs. U.S.C.A. Const.Amend. 14; Sodal Security Act, §§ 420-428, 470et seq., as amended, 42 U.S.C.A. §§ 620-628, 670 et Eeq.; 42 U.S.C.A. § 1983; W.S.A.46.26(1), 48.48.
40. Civil Rights €=>207(2)
Supervisory liability satisfies' causation requirement for § 1983 claim if supervisory officials who have not been directly involved in deprivation fail to take action they are required to take to stop violations by their wbordinates, in manner which amounts to

6. Civil Rights €=>108.1
Provisions of Adoption Assistance Act governing state foster care sYBtem plans, other than requirement that reasonable efforts be made to prevent need for removal of child and to make it possible for child to return home, created rights enforceable by foster care children under § 1988, in light of nature of foster care children as intended beneficiaries of Act, in light of Act's imposition of binding obligation on state to include specific features in state foster eare plan in order to obtain federal funding, and absent vagueness rendering requirements unenforceable by judiciary. Social Security Act, § 471(a), as amended, 42 U.S.C.A. § 671(a); 42 U.S.C.A. § 1983.
7. Civil Rights €=>108.1
Provisions of Adoption Assistance Act requiring state to implement information system, case review system, and 8ervice program for family preservation and adoption placements imposed sufficiently specific conditions on. federal funding to create rights enforceable' by foster care children under § 1983, iIi light of nature of foster care children as intended beneficiaries of Act, and absent vagueness rendering' requirements unenforceable by judiciary; although states could redeive some funding without systems, extra money was expressly conditioned on their implementation. Social Security Act, § 427, as amended, 42 U.S.C.A. § 627; 42 U.S.C.A. § 1,983.
8. Civil Rights ~108.1
Child Abuse Prevention and Treatment Act (CAPTA) expressly conditioned receipt of federal funding upon state's compliance with its requirements that states take immediate steps to protect children upon receipt

1270

877 FEDERAL SUPPLEMENT

of report and finding of abuse or neglect, and thus, CAPTA created rights enforceable by foster care children under § 1983, absent vagueness in statutory language so as to render conditions unenforceable by judiciary. 42 U.S.C.A. § 1983; Child Abuse Prevention and Trea~ment Act, § 107(b), as amended, 42 U.S.C.A. § 5106a(b).
9. Civil Rights e:>235(1)
Foster care children failed to state § 1983 claims against state officials for violations of Rehabilitation Act and Americans with Disabilities Act (ADA), absent showing that any individual children were disabled within meaning of either statute. Rehabilitation Act of 1973, § 504, 29 U.S.C.A. § 794; 42 U.S.C.A. § 1983; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132.
10. Federal Civil Procedure e:>181
District court would certify class made up of two subclasses consisting of children in foster care of county and children for whom county department of human services had received reports of neglect or abuse but who were not within foster care custody, in light of thousands of potential class members, in light of common grievances about operating procedures of county foster care program, and in light of ability of representative parties to fairly and adequately represent class. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.
11. Federal Civil Procedurp. e:>181
Civil rights action against county foster care program seeking broad declaratory or injunctive relief for large and amorphous class of foster care children based on allegations of grossly inadequate care was appropriate type of action for class certification. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
Christopher Dunn, American Civ. Liberties Union Children's Rights Project, New York City and Peter M. Koneazny, American Civ. Liberties Union of Wisconsin Foundation, Milwaukee, WI, for plaintiffs.

John F. Jorgensen, Principal Ass't Corp. Counsel, Office of Corp. Counsel, Milwaukee, WI, for Milwaukee county defendants.
Mary Woolsey Schlaefer and Peter C. Anderson, Ass't Attys. Gen., Madison, WI, for state defendants.
DECISION AFTER ORAL ARGUMENT ON FEBRUARY 3, 1995 AND WRITTEN ORDER DATED FEBRUARY 16, 1995 DENYING IN PART AND GRANTING IN PART THE STATE DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
REYNOLDS, District Judge.
I. INTRODUCTION
In this civil rights case, children who allegedly are or should be in the Milwaukee County foster care system have sued the Governor of Wisconsin, the Secretary of the Wisconsin Department of Health and Social Services (''Wisconsin DHSS" or, jointly, "the State defendants"), the Milwaukee County Executive, and the Director of the Milwaukee County Department of Human Services ("Milwaukee County DHS" or, jointly, "the County defendants").1 The plaintiff children claim that the defendants run the Milwaukee foster care system in a manner which violates their rights, as created by the United States and Wisconsin Constitutions and by the Federal Adoption Assistance and Child Welfare Act, Child Abuse Prevention and Treatment Act, Rehabilitation Act, and Americans with Disabilities Act. The children seek a court order designed to stop these alleged violations. They do not ask for money damages.
The State defendants moved to dismiss the claims against them, primarily on the grounds that the county, and not the state, has direct responsibility for the foster children, and thus the State defendants arb.le that the children cannot allege that the State defendants caused the children's alleged de-

1. All defendants have been sued in their official capacities. The court has substituted Richard Lorang for fonner Wisconsin Department of

Health and Social Services Secretary Gerald Whitbum.

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.WIs. 1995)

1271

privations. Nor do the State defendants be- allegations of failure to adequately investi-

heve that federal statutes give the children gate neglect and abuse, the complaint makes

the right to sue them for the failures of the the following claims:

foster care system in Milwaukee County. On

-Plaintiff Aline H. and her brothers,

February 3, 1995, this court heard oral argurnent on the motion to dismiss, on the plain-

Plaintiffs Maurice and Douglas R., were left in their home despite the fact t~lat

tiffs' motion for class certification, and on the their sister was in DHS custody. After

plaintiffs motion to pursue discovery against Aline had been missing from school for

the State defendants. Mter hearing the ar- several months, a Department Bocial work-

guments, the court ruled orally that the plaintiffs had sufficiently alleged that the

er visited the home in March of 1988, and determined it to be a case of neg~ect.

State defendants had SOJl1e responsibility to- However, no one followed up with the case

ward the foster children in Milwaukee Coun- until May, when a Department worker

ty, that federal statutes give rise to private went into the home and found it to be very

rights of action for the children, and that the dirty and unsanitary. At that time, the

State defendants would remain in the suit to Department obtained custody of Aline but

defend against most of the claims. The court left three-year old Maurice and 18 month-

dismissed one of the claims brought against the State defendants under the Adoption Assistance and Child Welfare Act, along with the claims brought against the State defendants under the Americans with Disabilities Act and the Rehabilitation Act. The court also granted the plaintiff children's motion to certify a class, and created two subclasses. Finally, the court ordered that discovery between the plaintiffs and the State defendants begin immediately, and that the trial would be held on May 16, 1995.
This decision elaborates upon the February 3, 1995, oral rulings and the February 16, 1995, order reducing the oral rulings to writing. Section II summarizes the plaintiffs' lengthy complaint. Section III analyses the State defendants' motion to dismiss. Finally, Section IV elaborates on the court's class certification ruling.
II. THE COMPLAINT
A. Factual Allegations
The complaint makes several general allegations of systematic failures by the Milwaukee County DHS (CompI. ~~ 218-259), and illustrates these failures through the specific cases of fifteen plaintiffs. (ld. ~~ 58-217.)

old Douglas at home until July, when the Department worker returned and found conditions worse. (Compl. ~~ '73-'78.)
-In May of 1991, a Department worker responding to a neglect report found that Plaintiff Carolyn D. (then three years old) lived in a filthy home without adequate food or medical attention. Carolyn and her brother were left in their parents' home without adequate efforts to provide services to the fatnily. When Carolyn's father died in July 1991, her mother moved them to another family's home, where the man had a history of substance abuse and domestic violence. A DHS worker visited the home in August 1991, but the Department did not remove Carolyn and her brother from their mother's custody until October 1991. (ld. ~~ 87-9J '\
-Plaintiff Alan A. (born in 1983) was placed in foster-care custody in December 1988 when his mother disappeared. In November 1992, the Department returned Alan to his mother's home, but did not supervise the home or provide services to Alan or his family. The DHS worker responsible for Alan's case was notified in

The systematic failures :'lllAged against January 1993 that Alan's mother was miss-

Milwaukee County DHS incluae a long list of facts indicating a collapse of all stages of the

ing family therapy appointments, but the worker took no action. In fact, Alan's

foster care system. For instance, the com- mother was not arranging court-ordered

plaint alleges that the defendants have failed therapy, had been evicted from two or

to investigate adequately or at all reports of three residences during the year. In Feb-

suspected abuse or neglect of children who ruary 1993, Alan's mother was arrested

are not yet in DHS custody. As specific and has been in custody since her arrest.

1272

877 FEDERAL SUPPLEMENT

Alan was left in the care of his 16-year-old sister and his mother's live-in boyfriend. In March, the assigned Department caseworker, her supervisor, and the Children's Court guardian ad litem learned that the boyfriend had struck Alan with a belt on his right leg, and struck him on the back, leaving red marks on his leg, and a handprint on his back. They also learned that Alan's sister had a drug problem. The Department employees did nothing. Two days later, a Children's Court duty judge granted a pick-up order, but Alan was not taken into Department custody for four more days. (ld. at ~~ 130-145.)
-Plaintiff Patricia S. was six years old in 1989 when she was taken into custody after she and her mother "had been thrown out of the filthy, unfurnished attic of a drug house because [Patricia's mother] wanted to bring in men for money for drugs and the owner of the house wanted some of the proceeds." (Jd. ~ 184, quoting a Department report.) At the time, DHS had custody of Patricia's two brothers and one sister, but had made no efforts to protect Patricia or to offer her mother services. (ld. ~ 185.)
The plaintiff children also assert that the state and county have failed to provide services to children and families to avert unnecessary entry of children into foster care during the approximately six months between the time that a child is taken from a home and the time when Children's Court finds that the child has been abused or neglected. They claim that the system fails to identify and develop available and appropriate placements, and to keep useful and reliable computerized information to match a child with a foster home. Further, they assert that the system does not properly train and supervise foster parents.
The children also allege that the defendants have failed to take children out of inappropriate and harmful foster homes, and to ensure that they receive necessary medical and dental care, and appropriate education. For instance:
-Plaintiff Jeanine B. alleges that the county placed her with a family that was already responsible for twelve children.

In 1989, when Jeanine was eight years old, her foster father struck her with a plastic container, necessitating stitches. The foster mother referred to Jeanine as a ''whore.'' In July 1990, Jeanine's therapist warned that conditions in her foster home were unacceptable, but Milwaukee County DHS did not attempt to locate a foster home which was trained to meet her needs, or to find an adoptive home for her. Jeanine remained in the foster home for two years. (Compi. ~~ 61-62.)
-Plaintiff James B. is a ten year-old boy who has allegedly lived with the same foster parents for most of his life. He receives "only marginal care in the home, which is chaotic." (ld. ~ 114.) Many different foster children have come in and out of the home, and one has died. James does not get regular medical or dental care. (Jd.).
The complaint alleges that the foster system fails to keep sibling groups together. For example, Alissa S. has two siblings with whom she allegedly has no contact because the children have been in separate foster homes. (Compi. ~ 172.)
The plaintiff children assert that the defendants have failed to determine the appropriateness of visits between birth parents and their children, and failed to supervise and arrange those visits. As examples of the lack of supervision or appropriateness of visits, the complaint alleges that:
-Alan A.'s caseworker has refused to supervise his visits to his mother, who is currently in prison. Allegedly, Alan's mother has shown him her "track marks" from past drug use and has described incidents of oral sex between female inmates in the jail to Alan during these visits. (Compi. ~~ 147-148.)
-Aline H. has been forced to see her mother despite her desire not to and her therapist's recommendation against it. (ld. ~ 82.)
-James B.'s mother is mentally ill and has once kidnapped him from his foster care home and taken him out of state. Nevertheless, the Department has continued to arrange parental visits, and James'

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.Wis. 1995)

1273

behavior after these visits has been ag- adopt foster children within a reasonable

gressive and agitated. (ld. ~~ 110-111.) amount of time. .As examples of this system-

Further, the children claim that social atic failure to take steps to get children

workers have failed to make and implement adopted, the plaintiffs allege that:

individual and appropriate case plans for chil-

-In 1990, the Department's case plan

dren who enter foster care so that they may goal for Jeanine B. was to have her paren-

leave foster care custody within a reasonable tal rights terminated and free her for

period of time, that these social workers have adoption. Her 1991, 1992, and 1993 plan

failed to provide adequate services to chil- goals were the same, yet the Department

dren and their families that would allow chil- never tried to find adoptive parents for

dren to return home when that is the plan- her, nor did it seek a court order to termi-

ning goal for the family, and that they have nate parental rights despite two Milwau-

failed to assess the reasonableness of return- kee County DHS periodic reports saying

home goals. For example, the complaint al- that there were no major obstacles for

leges that:

achieving the plan. (CompI. ~~ 62, 66.)

-Carolyn D.'s permanent plan has been

-Maurice R.'s foster parent would like

to "return home", but her mother's home to adopt him and has taken steps to assure

has not been assessed, visits have not been that he receives special education for his

supervised, and the Department has not emotional problems. However., the De-

investigated whether. her mother, who is partment has, as of April 1992, changed his

living with a man with a substantial crimi- plan from adoption to long-term foster

nal record, is capable of providing an adequate home for Carolyn. (CompI. ~ 98.)

care and has not permitted his foster mother to adopt him. (ld. ~ 80.)

-James E.'s mother is mentally ill and

-Aline H. and Douglas R. are in a

married to a man with a violent history, and has vacillated between a desire to

foster home together. Their foster mother would like to adopt them and the children

regain custody of James, and a desire to have indicated their desire to be adopted.

give him up for adoption. The Depart- However, the only time a Department

ment's plan for James remains "return home." (ld. ~~ 103-117.)

worker has visited the home was three years ago. The Department has chosen

-Alan A's permanency plan remains "return home" despite the fact that his

long-term foster care as the planning goal for these children. (ld. ~ 81.)

mother is in prison, has an abusive boy-

-Mindi D.'s mother tried to give her

friend, and has a history of drug abuse. (Id. ~~ 147-149.)

away to. a man, in. a furniture store when she was eleven, months old, and has only

-Darren C. was born when his mother seen her twice smce Mindi was put in

was sL'deen. They were both taken into foster care eleven years ago. l\findi's case

foster care and are now in separate foster plan goal has heen·to terntinate parental

homes. His mother has taken classes on mothering, visits Darren, and expresses a

rights and adopti«;>n. Yet the Department has ta,ken rio, SeriollS ~tE1ps to implement

desire to take custody of him upon gaining this plan., .For several years, her foster

her independence. However, the Depart- fatnily wanted to arlnpt her, but her case-

ment has taken no steps to aid her in worker thought another couple would be

attempting to provide a home for Darren. (ld. ~~ 152-160.)

better, either because the fost.er parents are Caucasian and Mindi is African-Ameri-

The children also maintain that the defen- can, or because Mindi's foster parents al-

dants have failed to even try to terntinate ready have one adopted child. Yet the

parental rights for children who need to be Department did not take steps to find an

adopted until an adoptive home can be identi- appropriate adoptive fatnily for Mindi.

fied, have failed to seek an adopt.ive home Mindi now has behavioral problems and

until parental rights have been terminated, her foster parents no longer wish to adopt

and have failed to allow foster parents to her. Her 1993 case plan has no mention of

1274

877 FEDERAL SUPPLEMENT

a permanent plan for her. (ld. ~~ 119124.)
-Alissa S. has been in foster care for over eight years since she was taken from her mother's home at age two due to lack of food, supervision, and medical attention, and suspected sexual abuse. For the first two years, the Department's permanency plan for Alissa was "return home," although the Department did not provide services which would make such a plan feasible and no basis for believing that it was realistic. In 1989, the Department changed Alissa' plan to termination of parental rights. In February 1991, a Children's Court judge found the Department had done little to implement the permanency plan and ordered a written update. The Department transferred Alissa' case to the adoption unit but has failed to locate an adoptive parent for Alissa. Her foster family has no interest in adopting her, and the Department does not consider them a suitable adoptive family, but has allowed Alissa to live there for more than five years. (ld. ~~ 161-171.)
-Jocelyn Z. was two years old, and her brother Derrick Z. was one when they were originally taken into foster care in 1987. An unsuccessful return home resulted in their mother signing a voluntary agreement relinquishing custody to the Department. The Department maintains a planning goal of "return home", yet has only made occasional telephone contact with the mother to assist her and has not found her to be taking meaningful steps to reassume responsibility for the children. Jocelyn and Derrick's foster parents would like to adopt them, and the children have the same wish. However, the Department has taken no steps to allow these children to be adopted. (ld. ~~ 192-205.)
The children also maintain that the system fails to adequately staff, train, and supervise Milwaukee County social workers, and assigns hundreds of cases to a computer for monitoring. For instance, allegedly, during at least part of her time in Milwaukee County DHS custody, Jeanine B. has not had a caseworker assigned to her. (Compl. ~ 64.)

The defendants have also allegedly failed to maintain stability in the assignment of a child's caseworker and in foster family placements. For example, the plaintiffs allege that Jeanine B. has been in six different foster homes, and Roxanne F. has been in four.
Children with behavioral disabilities claim that the state and county have failed to provide necessary services, failed to train foster families, and failed to provide stability for them, and have not found permanent homes for children with behavioral problems solely because of those problems. As examples, the complaint alleges that:
-Jeanine B. has not been assessed or treated for emotional disturbances, despite
behavioral problems. (Compl. n 59-60.)
-The Department refuses to allow Maurice and Douglas R. to be adopted because of their serious behavioral problems, despite the fact that foster families wish to adopt them. (Id. ~ 83.)
-Sixteen-year-old Karen M. was placed in a highly restrictive residential treatment center in 1992 to address her substance abuse problem. She completed the treatment program in late March 1993 but waited two months to be discharged because the Department has no available less restrictive placement for her. In May of 1993, the Department returned Karen to her maternal grandmother's home because there was no appropriate placement for her. Her grandmother lacks the resources and training to provide Karen with a therapeutic setting. (ld. ~~ 214-215.)
Allegedly, county workers have also failed to provide complete, truthful, and accurate information to the courts during periodic reviews, and failed to follow recommendations of the courts. The complaint alleges that a Children's Court judge has even directed the Milwaukee County DHS to turn Carolyn D.'s case over to a private agency, but the Department has not done so. (Compl. ~ 98.)
The children also allege that state and county officials knew that the County foster care system failed many of its wards, and they failed to correct the situation. In support of this allegation, the complaint cites various officials' comments upon the Milwau-

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.WIs. 1995)

1275

kee County foster care system, including the of these continuing and widespread violations

testimony of the director of the Milwaukee of the law." (Compi. ~ 253.)

County DHS, defendant Brophy, who stated before a judicial fact-finding tribunal in 1991:
What happens is that with that kind of caseload what the workers are largely in the situation of doing now is that they are hopping from crisis to crisis to crisis. On a given day, if 10% of their caseload is in crisis, the worker could have anywhere from 10-12 families and kids that they may have to deal with. That means that the other 100 cases are left to languish. And it means that the orders of the court which can be very prescriptive relative to getting a mother into parent education classes, getting a mother into mental health assistance, helping a mother to get alcohol and drug assistance, maybe helping the child get some special programming, schooling, is simply not being carried out ...

The complaint also alleges that the State defendants are responsible for ensuring that
the Milwaukee County child-welfare system follow the mandates of applicable law; that they failed to adopt rules and guidelines for the county to follow; and that they failed to provide necessary supervision in counties in which legal requirements are being violated and children are being harmed. (Id. ~ 253.) The plaintiffs allege that the Wisconsin DHSS has failed to provide the Milwaukee County child-welfare system with the funding, support, and supervision that it needs to perform its duties adequately. (ld. '119.) It further alleges that the state has taken federal dollars which were made available to the state as reimbursement for Milwaukee foster care costs and diverted these funds to nonchild welfare programs. (Id. ~ 253.)
C. Causes of Action Asserted

[O]n the real extreme end, [children] may go into a home, they may stay there for long periods of time. Their behavior may deteriorate. And they may home hop to a point where in a child's life they could be in six to eight to ten foster homes before . .. they reach age 18 and then just leave the system to the adult world. And even in some rare cases, but still too many, they may be abused and neglected in their own home, removed, put in a foster home and abused and neglected in that home and have to end up going into an institutional environment ...
(ld. ~ 256.) Despite this and other alleged evidence that county and state officials knew that the system "irreparably damage[s and fails] to provide mandated services and prot~ction to these vulnerable children," (id. ~ 259), the defendants have allegedly failed and refused to take remedial action.
B. Allegations of Responsibility

Plaintiffs allege various constitutional and statutory claims against the State and County defendants under 42 U.S.C. § 1983, and also allege pendant state law claims. First, they allege that all of the defendants have deprived the plaintiff children of rights conferred upon them by the First, Ninth and Fourteenth Amendments to the United States Constitution. They next allege the deprivation of rights conferred upon them by the Federal Adoption Assistance and Child Welfare Act and the Federal Child Abuse Prevention and Treatment Act. They also allege that those plaintiff children who are handicapped or disabled have been deprived of their rights under the Americans with Disabilities Act and the Rehabilitation Act of 1973. Further, the plaintiffs allege that the defendants have deprived them of rights conferred upon them by the State's Children's Code, state regulations, and the Wisconsin Constitution. (ld. ~~ 260-264.)
D. Injuries Alleged

The plaintiffs claim that the County defendants "are directly responsible for the admini8tration of this system and for the damage that is being inflicted on children as a result

The plaintiffs go on to allege that, as a result of the defendants actions, the plaintiff children, the other approximately 4000 children 2 in the custody of Milwaukee County

2. The complaint estimated the number at 5000, but the class certification motion estimated the

number at 4000.

1276

877 FEDERAL SUPPLEMENT

DRS, and children who the Department knows or should know are abused or neglected, are being irreparably harmed and deprived of the opportunity for safe and healthy childhoods. (ld. ~ 259.)
E. Relief Requested
The plaintiffs seek class certification so that they can represent the class, and they ask the court to enter "declaratory and injunctive relief necessary and appropriate to remedy the defendants' violations of the plaintiffs' rights" under the United States Constitution, Federal laws and Wisconsin State laws. (ld. n65.)
III. STATE DEFENDANTS' MOTION TO DISMISS
The Governor and the Secretary of the Wisconsin DRSS have moved to dismiss plaintiffs' claims against them on the grounds that none of the allegations state claims against them, and that some of allegations are barred by the Eleventh Amendment of the United States Constitution. Parts A and B of this Section of the decision briefly explore the standards for motions to dismiss and the Eleventh Amendment issue. Part C discusses each constitutional and federal claim brought under Section 1983.
A. The Standard for Dismissal
In considering a motion to dismiss, this court must accept as true all well-pleaded factual allegations in the complaint, drawing all reasonable inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 72, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.1990). The court may dismiss a complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon, 467 U.S. at 73, 104 S.Ct. at 2232. Although all reasonable inferences are to be drawn in favor of the plaintiff, the complaint must set forth factual allegations sufficient to establish the elements that are crucial to recovery under plaintiffs claim. Sutliff, Inc. v. Donovan Cos., Inc., 727 F.2d 648, 654 (7th Cir.1984).

B. Defendants' Eleventh Amendment Arguments are Mooted by Plaintiffs' Clarifications
The Eleventh Amendment to the United States Constitution states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Eleventh Amendment jurisprudence flows more from caselaw than from the language of the Amendment. The Amendment has been interpreted to prohibit a federal court from ordering state officials to conform their conduct to state law. Pennhurst State Sch. and Hasp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). In their complaint, the plaintiffs lump the State defendants and County defendants together when listing the causes of action "against the defendants," including causes of action brought under state statutes. Thus, the State defendants naturally thought that the complaint attempted to bring state law claims against the State defendants. But in their briefs, the plaintiffs have clarified their position to explain that they do not bring state law claims against the State defendants.
[1] Generally, suits against state officials acting in their official capacities are barred because they are not different from suits against the state itself, and Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1988) tells us that states may not be sued under § 1983 because they are not proper "persons" to be sued under the state and they receive Eleventh Amendment immunity. The exception to the rule is that state officials can be sued in their official capacities for prospective injunctive or declaratory relief and monetary damages ancillary to either. Id. at 71 n. 10, 109 S.Ct. at 2312 n. 10; Kentucky v. Graham, 473 U.S. 159, 169 n. 18, 105 S.Ct. 3099, 3107 n. 18, 87 L.Ed.2d 114 (1985). Thus, the State defendants are correctly included as "persons" under the plaintiffs' claims for prospective injunctive relief in this case.
These clarifications make the defendants' motion to dismiss pursuant to the Eleventh

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.n.Wis. 1995)

1277

.Amendment to the United States Constitu- is in the government custody. See DeShaney

ti.on moot, and for that reason, the motion v. Winnebago County Dep't. of Soc. Serv.,

shall be DENIED.

489 U.S. 189, 200-201, 109 S.Ct. 998,1005-06,

C. Constitutional and Statutory Claims 103 L.Ed.2d 249 (1989) (a state'g unwilling-

Brought Under Section 1983

ness or inability to protect child from father's

Section 1983 imposes liability on a person who, acting under color of state law, "subjects or causes to be subjected" a plaintiff to a deprivation of a right created by the Constitution or federal law. The plaintiff children claim that the State defendants, in addiLon to the County defendants, have deprived t~'lem of their rights created by the Fourtt~enth Amendment to the Constitution, the Adoption Assistance and Child Welfare Act, the Child Abuse Prevention Act, the Americans with Disabilities Act, and the Rehabilitation Act.
1. Constitutional Claims Against the State Defendants
[2] As their first cause of action, the plaintiff children who are in the foster-care custody in Milwaukee County 3 allege that the State defendants have breached affirmative constitutional duties arising from their custodial circumstances and judicially inferred under the Due Process Clause of the Fourteenth Amendment of the United States

serious and continuous abuse did not violate child's substantive due process rights because child not in state custody); Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (involuntary commitment to a state institution for the mentally impaired gives rise to constitutional rights to services and care from the state).4 In Youngberg, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment guarantees those who are brought into the custody of the state the right to safe conditions of confinement, freedom from undue bodily restraint, and, for those who need it, "minimally adequate or reasonable training to ensure safety and freedom from undue restraint." 457 U.S. at 319, 102 S.Ct. at 2459-60. The Youngberg court held that liability may be imposed when the decisions regarding the safety and freedom of those in custody are not based upon the exercise of professional judgment. Id.

Constitution. The State defendants acknowl- [3] While the Supreme Court has never

edge that the plaintiffs may have colorable decided the issue, the Seventh Circuit has

constitutional claims against the County de- ruled that a child placed in foster care-at

fendants. In fact, although the Constitution least one involuntarily placed in foster care-

does not generally require governments to has a relationship with the government that

act affirmatively to provide services and care, gives rise to Youngberg's affirmative duties.

c,srtain affirmative duties arise from the Con- See, e.g., KH. v. Morgan, 914 F.2d 846 (7th

stitution when a "special relationship" exists Cir.1990) (foster children have substantive

between the plaintiff and the government. due process right to be free from harm while

That special relationship is when the plaintiff in foster care).5 This court will 110t rule on

3. The children in the class who are not in fostercare custody but who allegedly "may be or have been abused or neglected and are or should be known to [the defendants)" (Compl. 'Ill), acknowledge in their brief that they do not and cannot assert breaches of affirmative constitutional duties. See DeShaney v. Winnebago County Dep't. of Soc. Serv., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).

sis, it 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 .... 489 U.S. 189, 200, 109 S.Ct. 998, 1005-06 (citations omitted).

4. The DeShaney Court explained:
The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. In the substantive due process analy-

5. See also Norfleet v. Arkansas Dep'l. of Human
Servs., 989 F.2d 289, 291-93 (8th Cir.1993); Yvonne L. v. New Mexico Dept. of Human Servs., 959 F.2d 883, 890-93 (lOth Cir.1992); Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir.), cert. denied, 498 U.S. 867, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990) (right to be free

1278

877 FEDERAL SUPPLEMENT

the parameters of the constitutional duties imposed upon the County and State defendants in this case, for they have not been briefed or argued. Instead, the focus thus far in this case has been on whether the State defendants are liable for some or all of the Constitutional transgressions of the County defendants, who have primary foster care custody of the children. The plaintiffs rest their constitutional claims against the State defendants on the theory that the Governor and the Secretary of the Wisconsin DHSS have "supervisory liability" for constitutional violations committed by the County defendants. To support this claim, the children allege tnat the State defendants are responsible for the policies and practices carried out by Milwaukee County DHS. The children point to the state governmental structure, to state and federal statutes requiring the State DHSS to devise and oversee foster care policies, and to federal funding statutes which give money to the State of Wisconsin on the condition that State officials fulfill certain obligations toward Wisconsin foster children, including supervising foster care programs.
[4] Although there is no respondeat superior liability under Section 1983, supervisory liability satisfies the causation requirement of Section 1983 when supervisory officials who have not been directly involved in the deprivation itself fail to take action which they are required to take to stop the violations of their subordinates in a manner which amounts to deliberate indifference to the rights of persons with whom the subordinates come in contact, or when they create policies and practices pursuant to which the constitutional deprivation was carried out. City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989) (municipality can be liable for failure to train municipal employees); Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1977).6 The allegations of the complaint which the plaintiffs assert give rise to a claim for the State defendants' supervisory liability include: (1) the Secretary of Wisconsin DHSS "is responsible for the policies, practices, and operation of social services agencies in the state and for ensuring compliance by those agencies with applicable provisions of state and federal law" (1d. ~ 50); (2) the Governor "is responsible for ensuring that government agencies in the state operate in compliance with applicable provisions of state and federal law" (1d. ~ 49); (3) the State defendants have long known of the systematic failures of Milwaukee foster care (1d. ~ 253); and (4) despite knowing of the continuing irreparable damage being caused to the plaintiff children damaged by this failure to provide mandated services and protection, the defendants (including the State defendants) have failed and refused to take necessary action. (1d. ~ 259.) The plaintiffs have also alleged that the State defendants have taken federal dollars which were made available to the state as reimbursement for Milwaukee foster care costs and diverted these funds to non-child welfare programs-an allegation that implies a deliberate breach of responsibility. (1d. ~ 253.) The State defendants have conceded that Milwaukee County is an entity of the State of Wisconsin, and that the state conducts a review of the Milwaukee County foster care system every three years, in conjunction with the federal government.
Supervisory liability under Section 1983 most often applies within a jurisdiction (a municipality is liable when it authorizes the use of excessive force by its police officers, for instance). But the plaintiffs in this matter have made allegations of grossly inadequate services on a County level, and have alleged that the State defendants knew of these inadequacies, had the authority to ame-

from infliction of unnecessary harm); accord Doe v. New York City Dep't. of Soc. Servs., 649 F.2d 134 (2d Cir.1981); cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Taylor v. Ledbetter, 818 F.2d 791,797 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989); Aristotle P. v. Johnson, 721 F.Supp. 1002, 1008-10 (N.D.Il1.1989) (substan-
tive due process right to safe custody).

6. See also, Pembaur v. Cincinnati, 475 U.S. 469, 483,106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (supervisory liability may attach where supervisory officials are responsible for establishing employment policy).

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.Wis. 1995)

1279

liorate or to attempt to ameliorate them,

(2) To assist in extending and strength-

refused to exercise that authority, and in fact ening child welfare services with appropri-

made the inadequacies worse by diverting ate federal agencies and in conformity with

funds earmarked for the County foster care the federal social security act and in coop-

system. With the plaintiffs alleging system- eration with parents, other individuals and

atic and widespread constitutional violations, other agencies so that all children needing

the State defendants shall not be allowed to such services are reached.

wash their hands of their alleged responsibil-

(3) To accept legal custody of children

ities. See Jensen v. State Ed. of Tax transferred to it by the court under s.

Comm'rs, 763 F.2d 272, 281 (7th Cir.1985) 48.355 and guardianship of children when

(when a state's actions utterly obstruct a appointed by the court, and to provide

county's attempts to meet its constitutional special treatment and care when directed

duties, such conduct alone might violate the by the court ....

Constitution).

(4) To provide appropriate care and

In addition to the factual allegations of responsibility, the plaintiffs have pointed to

training for children in its legal custody or under its supervision ....

the Wisconsin Children's Code and the struc- The Children's Code also gives Wisconsin

ture of federal funding statutes which condi- DHSS the authority to promote its enforce-

tion funding on supervisory actions in the ment, Wis.Stat. § 48.48(1); the authority to

area of foster care to support the theory that promulgate rules governing permanency

the State defendants owe a duty to supervise planning for children in foster eare under

the County's foster care system. While this supervision of state, county or independent

decision has already noted that the Penn- child welfare agencies, id. § 48.38(6); the

hurst doctrine bars the plaintiffs from bring- authority to promulgate rules establishing

ing claims against the State defendants un- standards for the operation of county depart-

der the Wisconsin Children's Code, the plain- ments, as well as child welfare agencies, day

tiffs may use the statute to explain the struc- care centers, foster homes, group homes, and

ture of responsibility for foster care in Wis- shelter care facilities, id., § 48.67(1); and

consin to show supervisory responsibility for requires that the counties report to Wiscon-

civil rights violations brought under the Unit- sin DHSS on cases of suspected ehild abuse

ed States Constitution, even though the or neglect. Id. § 48.981(3)(c)(8).

tE!rms of the statute itself cannot be enforced In addition to chapter 48, chapter 46 of the against the State defendants in this court. Wisconsin statutes sets out the responsibili-

The Wisconsin Children's Code, Section 48.48, describes the authority of Wisconsin DHSS under the chapter:
The [Wisconsin DHSSl shall have authority:

ties for the Wisconsin DHSS for social services generally. Wis.Stat. § 46.206(1)(a) requires Wisconsin DHSS to "supervise the administration of social service!>" and to "submit to the federal authorities state plans for the administration of social services .... "

(1) to promote the enforcement of the The chapter requires Wisconsin DHSS to

laws relating to delinquent children, non- "develop standards for the development and

marital children and children in need of delivery of social services under [the Chil-

protection or services including develop- dren's Codel." Wis.Stat. § 46.26(1). Fur-

mentally disabled children and to take the ther, Wis.Stat. 46.03(7) requires the Wiscon-

initiative in all matters involving the inter- sin DHSS to "take the initiative in all mat-

ests of such children where adequate pro- ters involving the interests of' children ad-

vision therefor is not made. This duty judged to be in need of protective services

shall be discharged in cooperation with the "where adequate provision therefor has not

courts, county departments, licensed child already been made, including the establish-

welfare agencies and with parents and oth- ment and enforcement of standards for ser-

er individuals interested in the welfare of vices provided [under the Children's Codel."

children.

Wis.Stat. 46.16(1) requires the Wisconsin

1280

877 FEDERAL SUPPLEMENT

DHSS to investigate and supervise shelter care facilities for children. Wisconsin DHSS may also "license and revoke licenses of and exercise supervision over all child welfare agencies" and the placement of children in foster homes, inspect each agency's records, and visit all foster homes in which children are placed. Wis.Stat. 46.16(2). Finally, the chapter allows the Wisconsin DHSS to audit county records and review contracts made between county departments and public or voluntary agencies for services. Wis.Stat. §§ 46.206(1)(c), 46.215(2)(c).
In 1980, this court found that the Wisconsin Children's Code demonstrated that Wisconsin "DHSS had a duty under the law to act in conjunction with local agencies to fu1fill the intent of the legislature." Roe v. Borup, 500 F.Supp. 127 (E.D.Wis.1980).7 In that case, the plaintiffs alleged that the county and state defendants had taken a minor child away from her parents without constitutionally adequate process. Id. at 130. The plaintiffs alleged that the Wisconsin DHSS had failed to promulgate rules and guidelines to prevent the denial of procedural due process rights by counties seeking to remove children from the custody of their natural parents, necessarily implying that the state regulations permitted counties to effect the unconstitutional deprivation of the parents' custodial rights.
Further, the plaintiff children have pointed to the federal Adoption Assistance and Child Welfare Act and the Child Abuse Prevention and Treatment Acts to support their allegations that the State defendants receive federal monies for the foster care program, and are supposed to turn some of that money over to Milwaukee County to implement the foster care program within the federal constitutional, statutory, and regulatory mandates. These statutes shall be discussed more fully in the following Parts if this decision. For purposes of the Section 1983 claims brought pursuant to the Constitution, it suffices to

say that by taking federal money, the State defendants have assumed the responsibility for the foster care programs administered in Wisconsin-even if they would prefer to pass the responsibility on to the County.
Finally, the courts of Wisconsin have long held that counties are "creature[s] of the state and exist in large measure to help handle the state's burdens of political organization and civil administration." State v. Mutter, 23 Wis.2d 407, 413, 127 N.W.2d 15 (1964). The county is created by the state, "not by virtue of its own will or consent, but as a result of the superimposed will of the state." Kyncl v. Kenosha County, 37 Wis.2d 547, 554, 155 N.W.2d 583 (1968) (contrasting cities, which are created for the local convenience of the inhabitants) (quoting State v. Schinz, 194 Wis. 397, 40(4)1, 216 N.W. 509 (1927». In rejecting an analogy to the federal-state relationship (an analogy that the State defendants in this case made in a "slippery-slope" argument that if this court allowed the plaintiffs to sue the State defendants for supervisory liability, it would have to allow them to sue federal officials as well), the Supreme Court of the United States has said:
Political subdivisions of States--counties, cities, or whatever-never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of the state governmental functions. . .. [T]hese governmental units are "created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them," and the "number, nature and duration of the powers conferred upon [them] ... and the territory over which they shall be exercised rests in the absolute discretion of the State."

7. Other courts have also looked to state law to determine the relationship between actors in civil rights actions. See Soderbeck v. Burnett County, Wis., 752 F.2d 285, 293 (7th Cir.1985) (looking to Wisconsin state law to determine accountability for County sheriff); Thomas S. v. Morrow, 781 F.2d 367 (4th Cir.1986) (looking to North Carolina state law to determine the relationship

between the State Secretary and local authorities); Jensen v. State Bd. of Tax Comm'rs of State of Ind., 763 F.2d 272, 280-81 (7th Cir.1985) (county could not argue that state of Indiana was directly responsible for the existence-and therefore the elimination-of unconstitutional conditions in county jail because no proof of agency relationship between county and state).

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.n.Wis. 1995)

1281

Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. child welfare programs. Part IV"-B of the

1362, 1388, 12 L.Ed.2d 506 (1963) (citations Adoption Assistance Act provides federal

omitted).8

funds to states to assist them in developing a

Thus, nothing in the legal nature of the broad range of child-welfare service pro-

cDunty-state relationship recognized by the grams, including foster care. Part IV-E es-

Courts of Wisconsin or the federal and state tablishes a separate program with separate

statutes governing the foster care system appropriations through which Congress pro-

sustains the State defendants' burden on its vides funds to states to cover child-specific

motion to dismiss. In other words, the State foster care and adoption expenses incurred

defendants have failed to prove to that the by the states.

allegations of the complaint could not possibly support a § 1983 claim against the State defendants for violating the Milwaukee County foster children's Fourteenth Amendment rights. Although the direct provider of foster care services in Milwaukee County is the Milwaukee County DHS,9 the claims against the State defendants shall not be dismissed given the nature and breadth of the allegations of state responsibility for constitutional violations and the structure of fost~r care in the State of Wisconsin. The motion to dismiss the complaint's allegations of constitutional deprivations against the State defendants is DENIED.
2. Adoption Assistance and Child Welfare Act Claims

[5] The State defendants posit that the plaintiffs do not have a private right of action under the Adoption Assistance Act to remedy their complaints about the foster care system in Milwaukee County. Federal funding statutes such as the Adoption Assistance Act create enforceable rights under Section 1983 if the statutes themselves created enforceable rights, privileges or immunities. Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987); Wilder'/}. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 8.Ct. 2510, 2516-17, 110 L.Ed.2d 455 (1990). In 1981, the Supreme Court issued its keystone decision addressing the conditions under which a federal funding statute ereates en-

The plaintiffs also allege that the State and forceable rights in Pennhurst State Sch. &

County defendants have violated their civil Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct.

rights by violating the Adoption Assistance 1531, 67 L.Ed.2d 694 (1981). Factors to

and Child Welfare Act (the "Adoption Assis- . exanIine include: (1) whether "the provision

tance Act"), which is found in parts IV-B 10 in question was intended to benefit the puta-

and IV-E 11 of the Social Security Act. The tive plaintiff[sJ"; (2) whether the provision

Adoption Assistance Act .creates a coopera- reveals a congressional preference or a bind-

tive federal-state program under which the ing obligation; and (3) whether the plaintiff

federal government provides those states asserts aJ? interest which is so "vague and

which opt to participate with funding for amorphous" that it is "beyond the compe-

8. However, the Seventh Circuit has found that Indiana counties are not so financially intertwined with States as to be able to assert Eleventh Amendment immunity from damages suits. Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 732 (7th Cir.1994) (citing cases).
9. Chapter 46 indicates that, in a county, such as Milwaukee County, with a population of 500,000 or more "the administration of welfare services is vested in a county department of social services." In fact, Wis.Stat. § 48.57 defines the broad powers and duties of county departments in providing child welfare services in Milwaukee County:
(1) Each county shall administer and expend such amounts as may be necessary out of any moneys which may be appropriated for child

welfare purposes by the county board of supervisors or donated by ·individualsor private organizations. In addition, the County has the authority to, inter alia, investigate instances· in which <:hildren may be in need of protection and offer services to· the caretakers of the children; to accept legal custody of children transferred. to the cotinty by the court under § 48.355; and to provide appropriate protection and services for children in its care.
10. Entitled "Child Welfare Services" and codified in 42 U.S.C. §§ 620-28.
11. Entitled "Federal Payments for Foster Care and Adoption Assistance," and codified at 42 U.S.C. §§ 670-679a.

)Iii...

1282

877 FEDERAL SUPPLEMENT

tence of the judiciary to enforce." Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. Once the plaintiffs have pointed to a substantive provision of rights, privileges, or immunities, the defendants bear the burden of establishing that "Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right." Wright, 479 U.S. at 423-34, 107 S.Ct. at 770-76 (quoting Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 3468, 82 L.Ed.2d 746 (1984». Courts "do not lightly conclude" such preclusion. [d.
In this case, the plaintiffs' complaint alleges that all of the defendants have deprived them of the following asserted "rights" under the Adoption Assistance Act:
• implementation of a pre-placement services program designed to help children remain with or be reunited with their families
• timely written case plans that contain specified elements and implementation and review of those plans
• planning and services that will assure "proper placement"; "appropriate services" in the "least restrictive most family-like setting"
• placement in foster homes that conform to nationally recommended standards; "proper care" while in custody
• regular judicial or administrative reviews
• dispositional hearings within eighteen months of entering custody
• services in a child-welfare system with an adequate information system.
(CompI. ~ 261.) The briefs and arguments have clarified that the plaintiffs bring their Adoption Assistance Act claims under Section 671(a) of Part IV-E and Section 627 of Part IV-B.12 The court shall next address the State defendants' claims that these sections do not create enforceable rights.

a. Claims under Title IV-E of the Adoption Assistance Act
[6] First, the plaintiff children claim that defendants have violated the provisions of the Adoption Assistance Act located in Section 671(a) of Part IV-E of the Social Security Act. Section 671(a) requires that the state submit to the federal government a plan containing certain elements and mandates for the foster care system within the state. For example, the plan must mandate that "reasonable efforts will be made ... prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home .... " 42 U.S.C. § 671(a)(15). The state plan must also mandate a case review system, and require that foster homes or other facilities conform to national standards. [d. at § 671(a)(10) & (16).
Until 1992, some federal courts, including the Seventh Circuit, construed § 671(a)'s list of required plan elements to create private rights of action for children to enforce at least some of the specific mandated components of the plan. See, e.g., Artist M. v. Johnson, 917 F.2d 980, 986-89 (7th Cir.1990) rev'd, Suter, 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1.13 For example the Seventh Circuit construed the Act's requirement that states' plans provide that "reasonable efforts" will be made to keep children in their homes or to return them as soon as possible, to mean that a child could sue the state under Section 1983 for failure to make such "reasonable efforts." Artist M., 917 F .2d at 986-89 (construing § 671(a)(15) to provide a private right of action.) However, in 1992, the Supreme Court reversed the Seventh Circuit's decision in Artist M., concluding that the reasonable efforts requirement of § 671(a)(15) was too vague to be judicially enforceable. Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). The Supreme Court also announced a new approach to federal funding statutes requiring plans, stating that the only private right arising from such statutes is a right to the

12. In their briefs, the plaintiffs mentioned that they alleged a claim under Section 677 of Title IV-E as well. They did not pursue this claim at oral argument, and the court shall DISMISS that claim at this time.

13. See, also, Lynch v. Dukakis, 719 F.2d 504, 509-14 (lst Cir.1983); L.J. v. Massinga, 838 F.2d 118, 122-23 (4th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989).

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.Wis. 1995)

1283

plan itself, and not to the implementation of 42 U.S.C. 1320a-2 (amended October 20,

the plans' required provisions.

1994). In light of this amendment, this court

Since that time, the Seventh Circuit has finds (and the parties agree) that the narrow

expounded upon the Suter decision's applica- holding of Suter remains intaet, and the bility to other provisions in § 671(a), finding plaintiffs claims under 42 U.S.C. § 671(a)(15)

that under the Suter analysis of § 671(a)(15), must be dismissed because the "reasonable other § 671(a) provisions do not create en- efforts" language in that section is too "vague

forceable rights beyond the right to a quali- and amorphous." But the court must "re-

J'ying state plan. Clifton v. Schafer, 969 F .2d :~78, 283-85 (7th Cir.1992); Procopio v. John-
Hon, 994 F .2d 325 (7th Cir.1993). Recently,
the Seventh Circuit explained that Suter had

wind the clock" and look to cases prior to Suter to determine the enforceability of other provisions under the Adoption Assistance Act. More broadly, the amendment over-

dosed the door entirely to a Section 1983 rules the general theory in Suter that the

action brought under a federal statute which only private right of action available under a

merely conditions a "state's receipt of federal funds on the adoption of a plan satisfying certain criteria." Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993). However, the

statute requiring a state plan is an action against the state for not having that plan. Instead, the previous tests of Wilder and Pennhurst apply to the question of whether

Seventh Circuit left the door slightly (al- or not the particulars of a state plan can be

though somewhat confusingly) ajar by stating enforced by its intended beneficiaries.

that when a statute and its accompanying In Wilder, 496 U.S. 498,110 S.Ct. 2510, the

regulations set forth detailed factors to be Supreme Court held that health care providconsidered in determining whether a state ers had an enforceable right to reasonable

has complied with a portion of the statute, and adequate reimbursement rates by the

the beneficiaries of the statute may bring a state under the Boren Amendment to the

Section 1983 cause of action. fd.

Medicaid Act. The amendment required re-

After these Seventh Circuit decisions were imbursements at rates that a "State finds,

decided, Congress answered the Supreme and makes assurances satisfactory to the Court's Suter decision by passing an amend- Secretary, are reasonable and adequate to

ment to the Social Security Act (of which the meet the costs which must be incurred by

Adoption Assistance Act is a part) in October efficiently and economically operated facili-

cf 1994. The amendment states that in all ties," 42 U.8.C. § 1396a(a)(13)(A). After

pending and future actions:

finding that the providers were the intended

[B]rought to enforce a provision of the beneficiaries of the amendment, the court

Social Security Act, such provision is not to held that Congress had imposed a binding

be deemed unenforceable because of its obligation on states, giving rise to enforce-

inclusion in a section of the Act requiring a able rights. fd. at 509-512, 110 S.Ct. at State plan or specifying the required con- 2517-19. The Court said that Congress had

tents of a State plan. This section is not worded the amendment in "mandatory rather

intended to limit or expand the grounds for than precatory" language, and provided that

determining the availability of private ac- funding would be expressly conditioned on tions to enforce State plan requirements compliance with the amendment. fd. at 512,

other than by overturning any such 110 S.Ct. at 2519.

grounds applied in Suter v. Artist M., [503 Applying the first of the Wilder factors to

U.S. 347], 112 S.Ct. 1360 [118 L.Ed.2d 1] this case, it is clear and undisputed that the

(1992), but not applied in prior Supreme children bringing this lawsuit are the intend-

Court decisions respecting such enforce- ed beneficiaries of the Adoption Assistance

ability; provided, however, that this sec- Act. As for the second factor, Congress

tion is not intended to alter the holding in imposed a binding obligation by explicitly Suter v. Artist M. that section 471(a)(15) tying the creation of certain features of a

[42 U.S.C. § 671(a)(15)] of the Act is not state plan to federal funding. The scheme enforceable in a private right of action. and the language of § 671(a) are mandatory,

1284

877 FEDERAL SUPPLEMENT

and the theory of Suter -that when Congress sets out plan requirements the only enforceable right is to the plan itself, and not to its implementation-has been rejected by Congress itself-the body whose intentions must be interpreted. The second prong of Wilder is met. Finally, with the exception of § 671(a)(15), the provisions of § 671(a) are not too "vague and amorphous" that it is "beyond the competence of the judiciary to enforce." Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. Section 671(a)(16), for example, requires that the state provide for the development of a case plan for each foster child and for a case review system meeting certain statutory requirements. Sections 671(a)(2), (3), (7) & (13) require reviews, monitoring, and collaboration between the state, local, and federal agencies. Section 671(a)(10) & (11) require that the state designate a state authority to establish, maintain, and review standards for foster family homes and child care institutions which are "reasonably in accord with recommended standards of national organizations concerned with the standard for such institutions or homes." These provisions are not vague, not amorphous, and certainly not beyond a court's ability to understand and to enforce.
The conclusion that Section 671(a) offers enforceable rights was widely recognized prior to Suter. See L.J. v. Massinga, 838 F.2d 118, 123 (4th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989); Lynch v. Dukakis, 719 F.2d 504, 509-12 (1st Cir.1983); LaShawn A v. Dixon, 762 F.Supp. 959, 987-89 (D.D.C.1991), affd in part on other grounds, 990 F.2d 1319 (D.C.Cir.1993), cert. denied, - U.S. - , 114 S.Ct. 691, 126 L.Ed.2d 659 (1994). Although the Seventh Circuit's Artist M. holding that § 671(a)(15) was enforceable was overruled by Suter, the Seventh Circuit's reasoning was vindicated by Congress. The motion to dismiss the claim under § 671(a)(15) is GRANTED and the motion to dismiss the claims under other provisions of § 671(a) is DENIED.

b. Claims under Title IV-B of the Adoption Assistance Act
[7] The plaintiffs also claim violations of the Adoption Assistance Act under Sections 627(a)(2) and 627(b)(3) of Title IV-B of the Social Security Act. Neither the Supreme Court nor the Seventh Circuit has passed upon the enforceability of these sections under Section 1983.
Section 627(a)(2) provides, in relevant part, that if Congress allocates in excess of $141,000,000 under Part IV-B of the Social Security Act, a state may not qualify for funding over-and-above the amount it would be eligible for if the appropriation were only $141,000,000 unless the state:
(2) has implemented and is operating to the satisfaction of the Secretary-
(A) a statewide information system from which the status, demographic characteristics, location, and goals for the placement of every child in foster care or who has been in such care within the preceding twelve months can readily be determined;
(B) a case review system (as defined in section 475(5) [42 USCS § 675(5)[14)]) for each child receiving foster care under the supervision of the State; and
(C) a service program designed to help children, where appropriate, return to families from which they have been removed or be placed for adoption or legal guardianship.
42 U.S.C. § 627(a). Subsection (b) of the statute warns that if Congress appropriates $325,000,000 or more under the Adoption Assistance Act for two consecutive fiscal years, each state shall have its allotment reduced to 1979 levels unless the state:
(1) has completed an inventory of the type specified in subsection (a)(l);
(2) has implemented and is operating the program and systems specified in subsection (a)(2); and

14. The Act defines "case review system" to require individual case plans, reviews, and disposi-

tional hearings. 42 U.S.C. § 675(5).

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.Wis. 1995)

1285

(3) has implemented a pre-placement ey, it must create and provide certain ser-

preventive service program designed to vices. See Pennhurst, 451 U.S. at 24, 101

help children remain with their families. S.Ct. at 1543 ("Congress must express clear-

42 U.S.C. § 627(b).

ly its intent to impose conditions on the grant

Prior to the Congressional rejection of the analysis of Suter, the State defendants argued that the claim brought pursuant to this statute must be dismissed because, under the theory of Suter, the language of Section t327(a)-"to the satisfaction of the Secretary" -only mandates that the Secretary be satisfied, and does not mandate that funded states create and maintain information systems, case review systems, and service programs designed to return children to their families when appropriate, or allow for adoption. However precarious this argument may have been prior to the amendment, it must be swept away now, in favor of the ';hree-factor Wilder analysis.
Again, the first prong of the Wilder test is indisputably met-§ 627 was meant to bene::it the child-plaintiffs in this matter. Applyi.ng the second prong of the Wilder test is not quite as simple. That Congress used mandatory not precatory language is very apparent, for Congress made it clear that if Wisconsin fails to implement and operate a satisfactory information system, case review system, and Bervice program for family preservation and adoption placements, Wisconsin will lose any extra federal funding to which it might other,vise be entitled. The defendants argue, however, that even if the language is mandatory, the funding scheme gives rise to an inference that Congress was merely espousing its preferences for state action in this

of federal funds so that the States can lmowingly decide whether or not to accept those funds.")
Further, the plaintiffs' claims under Section 627 assert interests which are not so ''vague and amorphous" as to be "beyond the competence of the judiciary to enforce." Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. It is well within the court's ability to determine whether the Wisconsin DHSS has created a statewide information system from which the status, demographic characterist:ics, location, length of time in the system, and goals for the placement of every child in foster care, can readily be determined; whether a case review system is in place for each child receiving foster care under the supervision of the state; and whether there is a service program designed to help children, where appropriate, return to families from which they have been removed or be placed for adoption or legal guardianship. As a final consideration, neither by word nor by the creation of an enforcement system has Congress indicated that it precludes the use of a private enforcement of § 627.
Therefore, the plaintiff children shall be allowed to proceed against the State defendants under § 627 of the Adoption Assistance Act, and the motion to dismiss those claims shall be DENIED.
3. Child Abuse, Prevention and Treatment Act Claims

statute. For example, the defendants point [8] The plaintiffs. also sue under the fed-

out that states do not lose their funding eral Child Abuse Prevention and Treatment

altogether if they fail to implement the enu- Act ("CAPTA"), which focuses upon the pro-

merated procedures. In fact, if Congress tection of all of our nation's children, includ-

has appropriated less that $141,000,000, the ing those who have corne in contact with the

Etates do not even get their share reduced if foster care system. See 42 U.S.C. §§ 5101

they do not have case review systems and et. seq. CAPTA establishes the National

informational systems in place. Further, the Center for Child Abuse and Neglect, an Ad-

defendants say, extra funding might easily visory Board on Child Abuse and Neglect, an

2mount to only a very small portion of the Inter-Agency Task Force on Child Abuse

amount necessary to implement the listed and Neglect, and a National Clearinghouse

services, and therefore the Congress could for information relating to child abuse. 42

not possibly have meant to mandate those U.S.C. §§ 5101-5104. It also provides for

Eervices. Not so. Congress made it clear ongoing grants and technical assistance to

that if Wisconsin wants to receive extra mon- eligible states for child abuse and neglect

1286

877 FEDERAL SUPPLEMENT

prevention and treatment programs, as well as grants to states for programs relating to the investigation and prosecution of child abuse cases. 42 U.S.C. § 5106(a)-(c). CAPTA sets out certain requirements for each grant. For instance, in order to be eligible for grants to assist in "developing, strengthening, and carrying out child abuse and neglect prevention and treatment programs," states must:
provide that upon receipt of a report of known or suspected instance of child abuse or neglect an investigation shall be initiated promptly to substantiate the accuracy of the report, and, upon a finding of abuse or neglect, immediate steps shall be taken to protect the health and welfare of the abused or neglected child and of any other child under the same care who may be in danger of abuse or neglect.
Id. § 5106a(b)(2). Further, the statute requires any state receiving funds to "demonstrate that there are in effect throughout the State," procedures, personnel, facilities, and programs and services "as may be necessary or appropriate to ensure that the state will deal effectively with child abuse and neglect cases in the State." Id. § 5106a(b)(3). The section goes on, however, to allow the appropriation of grant moneys to states who are not "eligible" but who are making good faith efforts to conform. See Id. § 5106a(c).
The plaintiffs alleged that the defendants violated CAPTA § 5106(b) because "[m]any children are left ... in dangerous ... situations" resulting from "inadequate child abuse investigation or the failure to offer services." (CompI. ~ 211.) They allege that Milwaukee County has insufficient staff, and that the "Milwaukee DRS routinely fails to follow applicable law and reasonable professional standards with regard to the investigation of child abuse and neglect reports and the provision of services in connection with those reports." See Id. ~~ 219-20. For instance, the Milwaukee County DRS allegedly knew or should have known that Aline R. and Douglas and Maurice R. were in danger of physical and sexual abuse but "failed to protect these children from the abuse they suffered, which has resulted in serious emotional trauma for these children." (CompI. ~ 73).

Also, despite having three of Patricia S.'s siblings in its custody, Milwaukee County DRS left the then six-year old in a dangerous situation, what a Department report described as a "filthy, unfurnished attic of a drug house [into which Patricia's mother] wanted to bring in men for drugs." (Id. ~~ 184-85.)
Although the plaintiffs have cited no cases holding that CAPTA creates enforceable rights, they rely upon an analogy to Wilder, 496 U.S. 498, 110 S.Ct. 2510. Like the statute in Wilder, CAPTA expressly conditions receipt of federal funding upon compliance with its provisions. [d. at 512, 110 S.Ct. at 2518-19; 42 U.S.C. § 1396(c). Congress used mandatory language when it said that "[i]n order for a State to qualify for a grant under subsection (a) [of this section], such State shall . . . provide that upon receipt of a report ... and upon a finding of abuse or neglect, immediate steps shall be taken to protect .... " 42 U.S.C. § 5106a(b) (emphasis added). Further, this language is not so vague and amorphous as to be nonjusticiable. Therefore, the plaintiffs shall be allowed to proceed with their civil rights claim under 42 U.S.C. § 5106a(b), and the State defendants' motion to dismiss this claims shall be DENIED.
4. Rehabilitation Act & Americans with Disabilities Act Claims
[9] The Americans with Disabilities Act (ADA) provides that "no qualified individual with a disability shall, by reason of such disability, be ... denied the benefits of the services, programs, or activities of a public entity." 42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act mandates in relevant part that "[n]o otherwise qualified [handicapped individual] ... shall, solely by reason of her or his [handicap], ... be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794.
The plaintiffs have failed to state claims under the ADA and Rehabilitation Act because they have not sufficiently alleged that any of the individual plaintiffs are disabled as defined under those acts. The failure to so allege is fatal to the complaint's claims

.-.------__.c..

JEANINE B. BY BLONDIS v. THOMPSON
Cite as 877 F.Supp. 1268 (E.D.Wis. 1995)

1287

against the State defendants, which shall be commonality is the requirement that the

DISMISSED for failure to state a prima named parties be typical of the claims or

facie case.

defenses of the class. See Eggleston v. Chi-

IV. CLASS CERTIFICATION

cago Journeymen Plumbers' Local Union

[10] The plaintiffs have filed a motion to certify this matter as a class action, with the class being defined as:
(1) the approximately 4000 children who, as the result of an allegation of abuse or

130, 657 F.2d 890, 895 (7th Cir.1981). Both elements require a commonality of grievances so that the case is both manageable and not plagued with internal conflicts of interests among class members.

neglect, of suspected abuse or neglect, or The State defendants have expressed a

of voluntary placement by their parents, concern that the breadth of the plaintiffs'

are in the legal and/or physical custody of claims may result in inherent conflicts among

the Milwaukee County Department of Hu- the interests of the class members, likely to

man Services ["DHS"] and

preclude certification of a single dass.I5 The

(2) the thousands of children who are not State defendants do not, however, request a

in the Department's legal or physical cus- denial of class certification, or request an

tody but have been the victims of neglect order directing separate actions alleging sep-

or abuse of which the Department knows arate theories of relief. Instea.d, they re-

or should know or are at risk of neglect or quest that the court define various subclass-

abuse of which the Department knows or es, although they do not suggest the defini-

should know.

tions of those classes.

A party seeking class action certification must first meet the prerequisites identified in li'ed.R.Civ.P. 23(a). That section provides ',hat one or more members of a class may sue on behalf of the class if the class is so D.umerous that joinder of all members of the dass is impractical, if questions of fact or law are common to the class members, if the daims of the proposed class representatives are typical of those of the class, and if the dass representatives will protect the interests of the class fairly and adequately. Fed. RCiv.P. 23(a).
With thousands of potential class members, the plaintiffs have met the requirement of numerosity. See, e.g., Boles v. Eat·~ 601 F.Supp. 737, 745 (E.D.Wis.1985). The defendants have not disputed this fact.
Additionally, while the n;te~bers of the purported class do not share every 'question of law or fact, they all challenge the operating practices of the Milwaukee' County fos~ t.er-care system, and generally allege that the Milwaukee County foster-care program is 8ystematically depriving children of their legal rights. Related to the' requirement of

Because the plaintiffs seek solely injunctive relief to remedy violations in a fostercare system in which the named plaintiffs and the putative class members are similarly enmeshed, the court will create only two subclasses at this time. Those subclasses will follow the natural division already apparent in the plaintiffs' proposed definition of the putative class: those children who are in Milwaukee County DHS foster care custody and those children for whom the Department has received reports of neglect or abuse but who are not in Milwaukee County DHS foster care custody.
The affidavits indicate that the representative parties will fairly and adequately protect the interests of the class under I'ed.R.qv.P. 23(a)(4). The plaintiffs are rep;~esented. by attorneys of the Children's Rights Project of the American Civil Liberties Union-an organization with considerable experience in complex, child-welfare litigation. Plaintiffs' counsel are more than adequate, and have already shown their ability to prosecute this action vigorously on behalf of the putative class. Moreover, each of the nanled plaintiff

1.5. For instance, the proposed class includes children claiming a right to removal from their biological families, as well as children claiming a right to remain with their biological families. It also lumps plaintiffs who seek "preplacement

preventative services" for keeping the family together, with those who complain that the county fails to "free" children for adoption by commencing proceedings for the termination of foster children's natural parent's parental rights.

1288

877 FEDERAL SUPPLEMENT

children has an adult "next friend" serving to protect their interests in the lawsuit. Most of these next friends are attorneys who have been court-appointed counsel for the named plaintiffs in proceedings before the Milwaukee County Children's Court, social workers who work with those attorneys, or, in the case of four of the named plaintiffs, prominent members of the Milwaukee community who have a demonstrated interests in children's issues.16
[11] An action that satisfies the four prerequisites of Rule 23(a) must then fall into one of the three categories of actions described in section (b) of the Rule. The plaintiff children seek to proceed under the second category, which applies to cases in which:
the party opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
Fed.R.Civ.P. 23(b)(2). Civil rights cases seeking broad declaratory or injunctive relief for a large and amorphous class, such as the one in this case, fall squarely into the category of class actions authorized by this section. See 1 H. Newberg, Newberg on Class Actions § 4.11, at 291 (2d ed. 1985); Notes of Advisory Committee on Rules, 1966 Amendments, 39 F.R.D. 69, 102 (1966).
For all of the foregoing reasons, this court will certify the class and create two subclasses defined as follows:
(1) children who are in foster care custody in Milwaukee County and who come into foster care custody in Milwaukee County; and
(2) children who are not in foster care custody in Milwaukee County, but about whom the County Department of Human Services has received reports of abuse or neglect, and children who become the object of such reports.
FOR THE FOREGOING REASONS, IT WAS THEREFORE ORDERED ON FEBRUARY 3, 1995 AND FEBRUARY 16,

1995: that the State defendants' motion to dismiss was GRANTED IN PART AND DENIED IN PART as follows:
1. The State defendants' motion to dismiss the constitutional claims against them was DENIED.
2. The State defendants' motion to dismiss the plaintiffs' claims under 42 U.S.C. § 671(a) was GRANTED as to § 671(a)(15) and DENIED as to all other parts.
3. The State defendants' motion to dismiss the plaintiffs' claims under 42 U.S.C. § 677 was GRANTED.
4. The State defendants' motion to dismiss the plaintiffs' claims under 42 U.S.C. § 627 was DENIED.
5. The State defendants' motion to dismiss the plaintiffs' claims under 42 U.S.C. § 5106a(b) was DENIED.
6. The State defendants' motion to dismiss the plaintiffs' claims under the Rehabilitation Act and the Americans with Disabilities Act was GRANTED as to the State defendants.
IT WAS FURTHER ORDERED that the plaintiffs' motion to certify the class is GRANTED, and two subclasses was be certified as follows:
(1) children who are in foster care custody in Milwaukee County and who come into foster care custody in Milwaukee County; and
(2) children who are not in foster care custody in Milwaukee County, but about whom the County Department of Human Services has received reports of abuse or neglect, and children who become the object of such reports.

16. See Affs. of Next Friends, attached as Exs. 13- 24 of PIs. Br. in Support of Class Cert.

 
 1104

967 FEDERAL SUPPLEMENT

injury to inmate witnesses and informants identified at hearing or in produced documents, as well as the potential for breakdown in authority, order and discipline inside the institution" are grounds for limiting inmate's right to produce evidence). A confidential witness appeared to have provided the investigator with damaging information on Rice's behavior. The identity of this witness remained confidential since the prison allegedly feared for their safety. Thus, after reviewing the record in this case as well as the statement of the confidential witness, it is this court's view that, under the totality of the circumstances, this court must dismiss the petitioner's claim that the evidence presented to the CAB was insufficient.

V. CONCLUSION
The court, for the foregoing reasons, holds that Rice's petition pursuant to 28 U.S.C. § 2254 states no claim upon which relief can be granted under the Fourteenth Amendment to the United States Constitution. Therefore, this petition is hereby DENIED and this case is now DISMISSED. IT IS SO ORDER.

B. FAILURE TO OBTAIN WIFE'S STATEMENT
[13] The petitioner also complains that the prison failed to provide him with a copy of a witness statement before the CAB hearing. Specifically, Rice contends that his due process rights were violated when a statement from his wife was not obtained by the CAB or Investigator Tappy. However, the record clearly indicates that Rice did not request a statement from his wife prior to the CAB hearing. The respondent counters by arguing that it was unnecessary to present a statement from Rice's wife because she was not present when Officers Byrd and Neal heard Rice state that he would kill his wife and her boyfriend upon his release and that her statement would have only corroborated the statement of Officer Hope that they were on good terms.
As stated previously in Superintendent, the Court held that "the requirements of due process are satisfied if some evidence supports the decision by the disciplinary board." 472 U.S. at 455, 105 S.Ct. at 2774 (emphasis added). Again, this court need only inquire ''whether there is evidence in the record that could support the conclusion reached by the [CAB]." Id. at 455-56, 105 S.Ct. at 2774. Therefore, the failure to present a statement by Rice's wife, which he did not request, does not affect the validity of the decision of the CAB as some evidence was presented to support the decision of the CAB.

JEANINE B., by her next friend, Robert BLONDIS, et. aI., Plaintiff(s),
v.
Tommy G. THOMPSON, et aI., Defendant(s).
No. 93-C-547.
United States District Court, E.D. Wisconsin.
June 9, 1997.
Children who were or allegedly should have been in county foster care system filed class action against state and county officials, alleging that system provided grossly inadequate care. Mter it was determined that the Child Abuse Prevention and Treatment Act (CAPTA) was enforceable in private action, 877 F.Supp. 1268, plaintiffs filed motion for preliminary injunction and defendants filed motion for reconsideration. The District Court, Randa, J., held that: (1) prior version of CAPTA did not give rise to federal rights enforceable under federal civil rights statute; (2) Wisconsin's child abuse reporting statute satisfied CAPTA's requirement that state "provide that" investigations of reports of child abuse be "initiated promptly" and to take steps to protect child if given report proves true; and (3) Wisconsin's child abuse reporting statute satisfied requirement of new version of CAPTA that state law or

JEANINE B., BY BLONDIS v. THOMPSON
Cite as 967 F.Supp. 1104 (E.D.Wis. 1997)

1105

program contain procedures for investigating abuse and neglect, does not require state to

and responding to reports of child abuse. maintain child abuse reporting system that is

Preliminary injunction denied. 1. Courts e;'99(l)

capable of working properly in every single instance. Child Abuse Prevention and Treatment Act, § 107(b)(1)(A), as amended,
42 U.S.C.A. § 5106a(b)(1)(A); W.S.A. 48.981.

"Law-of.-the-case doctrine" generally holds that when court decides upon rule of law, that deeision should continue to govern same issues in subsequent stages of same case.
See publication Words and Phrases for other judicial constructions and definitions.

6. Infants eo>13
Wisconsin's child abuse reporting statute satisfied requirement of Child Abuse Prevention and Treatment Act (CAPTA) that state "provide that" investigations of reports of child abuse be "initiated promptly" and to take steps to protect child if given report

2. Courts e::'99(1)
Circumstances under which law-of-thecase doctrine do not apply include: substantial new evidence that has come to light after initial decision; subsequent opinion from superior court of controlling authority that is contrary or:nconsistent with initial decision; and conviction that initial decision was clearly erroneous and would work substantial injustice.

proves true by requiring that report of child abuse be investigated within 24 hours and that police or sheriff take immediate steps to protect child if there is reason to suspect that child is in danger. Child Abuse Prevention and Treatment Act, § 107(b)(2), as amended, 42 U.S.C.A. § 5106a(b)(2); W.S.A. 48.981(3)(c).
7. Infants eo>13
Wisconsin's child abuse reporting statute

3. Courts e::'99(4)
While law-of-the-case doctrine is not to be lightly cisregarded, it has significantly less "bite" in situations involving interlocutory decision that has not been reduced to final judgment and has not been reviewed or determined on appeal.

satisfied requirement of new version of Child Abuse Prevention and Treatment Act (CAPTA) requiring state law or program containing procedures for investigating and responding to reports of child abuse. Child Abuse Prevention and Treatment Act, § l07(b)(2)(A), as amended, 42 U.S.C.A. § 5106a(b)(2)(A); W.S.A. 48.981.

4. Civil Rights eo>10S.1
Prior VErsion of Child Abuse Prevention and Treatment Act (CAPTA), requiring states to pass laws providing for reporting of child abuse, provide that child abuse reports are properly investigated, take immediate steps to protect child at issue, and create adequate organizational structure to comply with those requirements did not give rise to federal righls enforceable under federal civil rights statu·;e. 42 U.S.C.A. § 1983; Child Abuse Prevention and Treatment Act, § 107, as amended, 42 U.S.C.A. § 5106a.

S. Federal Courts eo>272
Eleventh Amendment precluded district court from ordering state to properly enforce or comply with its own child abuse reporting laws, and Child Abuse Prevention and Treatment Act (CAPTA) could not be interpreted in manner that effectively overrode State's Eleventh Amendment immunity in that regard. U.S.C.A. Const.Amend. 11; Child Abuse Prevention and Treatment Act, § 107(b)(2)(A), as amended, 42 U.S.C.A. § 5106a(b)(2)(A); W.S.A. 48.981.

5. Infants e;:;>13
Prior vE,rsion of Child Abuse Prevention and Treatment Act (CAPTA), requiring states to adopt law relating to child abuse and neglect, including provisions for reporting of known and suspected instances of child

Christopher T. Dunn, New York Civil Liberties Union, New York City, Peter M. Koneazny, American Civil Liberties Union, Milwaukee, WI, Marcia Robinson-Lowry, Daniel S. Dorsky, Martha Stone, Mark G. Peters,

1106

967 FEDERAL SUPPLEMENT

Children's Rights, Inc., New York City, for Plaintiffs.
Peter C. Anderson, Mary Woolsey Schlaefer, Wisconsin Dept. of Justice, Madison, WI, John F. Jorgensen, Milwaukee County Corp. Counsel, Milwaukee, WI, for Defendants.
DECISION AND ORDER
RANDA, District Judge.
This matter comes before the Court on plaintiffs' motion for a preliminary injunction requesting that the defendants be directed to make certain changes in the Milwaukee County Child Protective Services Unit. The motion is based upon plaintiffs' claims under the Child Abuse Prevention and Treatment Act ("CAPTA"). In their respective responses, defendants ask the Court to reconsider Judge Reynolds' prior decision finding that CAPTA is enforceable in a private action under 42 U.S.C. § 1983. For the following reasons, the Court grants defendants' request to reconsider and denies plaintiffs' motion for a preliminary injunction.
I
This class action lawsuit was initially filed in 1993. Throughout this lawsuit, the plaintiff-class has sought permanent injunctive relief against Milwaukee County and the State of Wisconsin, through various county and state officials, essentially requesting that they· be required to address various alleged deficiencies in Milwaukee County's foster care system. These deficiencies, plaintiffs argue, violate the rights of individual class members which are guaranteed by the federal constitution and certain federal statutes. The matter was initially assigned to another Court of this District. That Court, in a published decision, denied-in-part the State defendants' motion to dismiss. See, Jeanine B, v. Thompson, 877 F.Supp. 1268 (E.D.wis.1995)(Reynolds, J., presiding). That motion had argued, inter aUa, that only Milwaukee County had direct responsibility for the services at issue and that the federal statutes involved did not give rise to private rights of action. The matter was subsequently transferred to this Court.

Shortly after transfer, the State defendants moved for partial summary judgment on the constitutional issues. The Court denied the motion without prejudice. The Court did so because recent legislative developments at the State level had significantly altered the playing field. Specifically, the Wisconsin Legislature, as part of the State's 1995 budget legislation, passed a provision requiring the State Department of Health and Social Services ("DHSS") to submit a proposal to the Legislature and the Governor, by April 1, 1996, transferring authority and responsibility for Milwaukee County's child welfare services to the State. The legislation required DHSS to include within the proposal an implementation plan for taking over the provision of all child welfare services in Milwaukee County beginning January 1, 1998. Because the plaintiffs sought only injunctive relief-meaning a court order that the State and County defendants take action to address the deficiencies in Milwaukee County's child welfare system-it was obvious to the Court that the State takeover impacted dramatically on the possibility for relief in this case. For that reason-and in deference to the State's political branches, where resolution of the current dispute is most properly addressed-the Court denied the summary judgment motion and adjourned the trial date in order to entertain briefs concerning whether the case was rendered moot by the legislative action. The Court subsequently ruled that the State takeover indeed mandated summary judgment for the State on plaintiffs' constitutional claims and also--as a practical matter-was likely to render moot any potential relief on plaintiffs' constitutional claims against the County. Plaintiffs' federal statutory claims were allowed to go forward, however, in part because the defendants had not asked the Court to reconsider Judge Reynolds' prior ruling that the statutes at issue gave rise to federal rights enforceable under § 1983.
Plaintiffs subsequently filed their current motion for immediate injunctive relief. Their basic claim is that the pending State takeover has only exacerbated-at least in the short term-the problems within Milwaukee County's child welfare system; specifically, the County's Child Protective Services Unit

JEANINE B., BY BLONDIS v. THOMPSON
Cite as 967 F.Supp. 1104 (E.n.Wis. 1997)

1107

("CPS"). They claim the situation has be- In response, the defendants ask the Court

come so bad that the Court must exercise its to reconsider Judge Reynolds' prior conclu-

equitable powers to put in place certain stopgap measures designed to alleviate the breakdown v.ithin CPS.1 In support of this claim, they submit 17 affidavits from individuals involved in the child welfare system. These affidavits detail 27 separate stories of tragic child abuse and neglect within Milwaukee County. The stories are alleged evidence of a "Btate of crisis" within the child welfare system and the defendants' "total abdication of their legal responsibility to investigate and act upon reports of child abuse". Plalntiffs argue that CPS is so grossly understaffed, and/or that CPS employees are so grossly undertrained, that CPS simply cannot and will not promptly

sion that CAPTA-the statute underlying plaintiffs' current request for injunctive relief-gives rise to federal rights enforceable under § 1983. Plaintiffs reply that Judge Reynolds' prior decision is the law of the case and that there is no basis for reconsidering the same. Plaintiffs also argue that Judge Reynolds' decision was the right decision under the law and therefore, even upon reconsideration, this Court should reach the same conclusion. The following decision is thus divided into two parts: (1) Analysis of the law-of-the-case doctrine; and (2) analysis of whether CAPTA creates federal rights enforceable in an action under 42 U.S.C. § 1983.

receive and iavestigate increasing reports of

II

child abuse. Their affidavits describe a system that is "eompletely overwhelmed", social workers that are "too overworked and inadequately trained", and case loads that make it "physically impossible to go out and prompt-

[1,2] The current "law-of-the-case" is found in Judge Reynolds' prior decision denying the bulk of the State defendants' motions to dismiss. See, Jeanine B. v. Thompson, 877 F.Supp. 1268 (E.D.Wis.1995). The

ly investigate all of the reports of abuse and law-of-the-case doctrine generally holds that

neglect". Such allegations are not new to "'when a court decides upon. a rule of law,

this case, but plaintiffs argue that the "situa- that decision should continue to govern the

tion has only grown worse" and that immedi- same issues in subsequent stages of the same

ate judicial intervention is needed to prevent case.''' United States v. Cleveland, 1995 WL

a complete breakdown of the system.2

535110 *3 (N.D.IlL1995), quoting Donohoe v.

1. Specifically, plaintiffs ask the Court to order the County and/or the State (I) to provide sufficient staff ar.d telephone lines so that mandated reporters can quickly report potential instances of abuse 24-hours-a-day, seven days a week; (2) to ensure proper staffing and training so that reports of abuse are investigated promptly; and (3) to establlsh an appropriate monitoring and quality assurance program. (Plaintiffs' Brief in Support at 2-3.) In response, the defendants argue that tre current takeover plan already addresses all of these concerns, that they have developed a formal work plan to achieve those goals in time for the 1998 takeover, and that plaintiffs' current motion only jeopardizes their ability to carry out these tasks. (State's Brief in Opposition at 5-9; County's Brief in Opposition at 7-8.)
2. In a prior order, the Coutfordered plaintiffs' counsel to produce the names of the children referenced in the affidavits submitted in support of their motion, so that the defendants could investigate the claims and determine whether these instanc es truly demonstrated a breakdown of the system. Plaintiffs promptly sought reconsideration, maintaining that they did not have the names at issue, that the names were only known

by the affiants themselves, and that the Court's Order was not directed to the affiants and was therefore ineffective. In response, the Court ordered the parties to submit an order to the Court requiring the affiants themselves to produce the names, subject of course to an appropriate confidentiality order protecting the children and other individuals involved. The Court has no idea whether this order was carried out. It is noteworthy, however, that the results of an investigation into one of the children described in plaintiffs' affidavits-whose identity the defendants learned by happenstance-uncovered substantial evidence that, at every step of the process, CPS and the County did what it could for the child. Thus, the claim that this particular child's situa. tion evidenced a breakdown in the .child welfare system was, if not without merit, certainly questionable:(See, Aiken Aff. at ~1l2-15.) To date,
plaintiffs have not explained or otherwise addressed this particular discrepancy between what was alleged and what the case records actually revealed. At the very least, the discrepancy raises questions about the reliability of the anecdotal information contained in plaintiffs' affidavits.

1108

967 FEDERAL SUPPLEMENT

Consolidated Operating & Prod. Corp., 30 F.3d 907, 910 (7th Cir.1994), quoting, Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Put another way, "the same issue presented a second time in the same case in the same court should lead to the same result." LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996). The 7 th Circuit has stated that "[t]he law of the case doctrine is not to be lightly disregarded. It is 'based on the salutary and sound public policy that litigation should come to an end.''' Rothner v. City of Chicago, 929 F.2d 297, 301 (7th Cir. 1991), quoting, Shakman v. Dunne, 829 F.2d 1387, 1393 (7th Cir.1987), quoting, White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967), cert. denied, 484 U.S. 1065, 108 S.Ct. 1026, 98 L.Ed.2d 991 (1988). To this end the 7 th Circuit states that the doctrine should be applied absent "unusual circumstances" or "compelling reason[s]". Parts and Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 231 (7th Cir.1988). Such circumstances include:
(1) substantial new evidence that has come to light after the initial decision; (2) a subsequent opinion from a superior court of controlling authority that is contrary or inconsistent with the initial decision; and (3) a conviction that the initial decision was clearly erroneous and would work a substantial injustice.
LaBoy v. Zuley, 1993 WL 390249 *3 (N.D.Ill. 1993), citing, Evans v. City of Chicago, 873 F.2d 1007, 1014 (7th Cir.1989), cert. denied, 495 U.S. 956,110 S.Ct. 2560,109 L.Ed.2d 742 (1990).
"Unlike the doctrine of stare decisis, however, law of the case is a discretionary doctrine." Redfield v. Continental Casualty Corp., 818 F.2d 596, 605 (7th Cir.1987). "Justice Holmes established early on that 'the phrase, law of the case, ... merely expresses the practice of courts generally to refuse to open what has been decided, not a limit to their power.''' Id., quoting, Mes-

singer v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). "[T]he doctrine is not a straightjacket. '[I]t is clear that all federal courts retain power to reconsider [issues] if they wish. Law of the case principles .,. are a matter of practice that rests on good sense and the desire to protect both court and parties against the burdens of repeated reargument by indefatigable diehards.''' United States v. Shannon, 94 F.3d 1065, 1076 (71h Cir.1996), vac'd on other grounds on reh'g en bane, 110 F.3d 382 (7th Cir. 1997), quoting, Wright, Miller & Cooper, Federal Practice and Procedure § 4478. And while it is said that the law of the case has more "bite" when judges in one case are "changed in midstream", Cleveland, 1995 WL 535110 at *3, quoting Williams v. C.I.R., 1 F.3d 502, 503 (7th Cir.1993), it is also said that" 'the only restraint upon a second judge in passing upon [an] interlocutory issue decided by another judge in the same case is one of comity ... , which in no way infringes upon the power of the second judge to act.' " American Telephone & Telegraph Co. v. Intrend Ropes & Twines, Inc., 944 F.Supp. 701, 707 (C.D.Ill.1996), quoting, Bowles v. Wilke, 175 F.2d 35, 37 (7th Cir.1949), cert. denied, 338 U.S. 861, 70 S.Ct. 104, 94 L.Ed. 528 (1949). As in most matters left to a trial judge's discretion, the question must be decided on a case-by-case basis:
At bottom ... a court is neither obligated nor foreclosed from reconsidering its prior decisions; instead, the principles underlying motions to reconsider and the law of the case doctrine must be meted out in the individual case to arrive at a proper exercise of the court's discretion.
In re the August, 1993 Regular Grand Jury (Medical Corporation Subpoena), 854 F.Supp. 1403, 1406 (S.D.Ind.1994).
It is important to note that the case has not been brought to final judgment and has not-until recently-gone up on appea1.3 Many of the eases cited by the plaintiffs in opposition to the defendants' current request

3. Plaintiffs recently filed an "appeal" with the 7 th Circuit Court of Appeals, arguing that this Court's alleged failure to hold an immediate hearing on their request for an injunction was tantamount to an order denying their request, which denial would be immediately appealable

to the 7 th Circuit. The 7 th Circuit disagreed, stating that this Court was proceeding "in a timely and orderly fashion", and dismissed the appeal for lack of jurisdiction. See, Jeanine B. v. Thompson, Appeal No. 97-1982 (7 th Cir.
5/16/97).

JEANINE B., BY BLONDIS v. THOMPSON
Cite as 967 F.Supp. 1104 (E.D.Wis. 1997)

1109

for reconsideration are cases concerning ei- has not been reduced to final judgment and

ther multiple appeals in the same case, where has not been reviewe.d or determined on

the question is whether a decision on a rule appeal. And, as explamed .below, there are

of law made by the first appellate court is sound reasons for departmg from Judge

binding on the second appellate court, or Reynolds' prior decision.

cases which have previously gone to final

judgment, were appealed, and are back before the trial court on remand, where the question is whether the trial court should revisit matte:,s determined on appeal. That plaintiffs citE such cases is not unusual, as "the law of ";he case is most commonly invoked upon remand from an appellate ruling on a question of law .... " In re Soybean Futures Litigation, 892 F.Supp. 1025, 1042 (N.D.Ill.1995>(emphasis added); see also, Redfield, 818 F.2d at 605 (" ... the law of the case doctrine is most commonly applied to govern the conduct of litigation on remand after an appeal, .... "). Plaintiffs' reliance on such cases i;, significant, however, because "[i]n matters involving interlocutory orders, such as motions to dismiss, or matters that have not beEn taken to judgment or determined on appeal, the Seventh Circuit has made clear that the district courts have the discretion to reconsider the decisions at any time." Soybean Futures, 892 F.Supp. at 1042; citing, Cameo Convalescent Center, Inc. v. Percy, 800 F.2d 108, 110 (~h Cir.1986). "The law is clear that decisions of a lower
court that have not been ruled on by the
appellate court can be reconsidered at the request of a party by the lower court at anytime prior to the entry of final judgments. All such decisions are interlocutory and can be reconsidered when justice requires. This is the reciprocal to the law of the case doctrine: upon remand a district court may reconsider any matter that is not expressly or implicitlyoart of the decision of the court of appeals." United Stg,tes v. Windom, 82 F.3d 742, 746 (7th Cir.1,996) (citation omitted).
[3] Thus, while t~e law-of-the-case doc-

III
It is well settled that 42 U.S.C. § 1983 provides a private right of action for violations of federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). In order to assert a statutory claim under § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448-49, 107 L.Ed.2d 420 (1989). The U.S. Supreme Comt "traditionally look[s] at three factors when determining whether a particular statutory provision gives rise to a federal right." Blessing v. Freestone, - U.S. - - , - , 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997). "First, Congress must have intended that the provision in question benefit the plaintiff."Id., citing, Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 430, 107 S.Ct. 766, 773-74, 93 L.Ed.2d 781 (1987). "Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so 'vague and amorphous' that its enforcement would strain judicial competence." Id., citing Wright, 479 U.S. at 431-32, 107 S.Ct. at 774-75. "Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms." Id., citing Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 510-11,110 S.Ct. 2510, 2517-18, 110 L.Ed.2d 455 (1990) and Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539-40, 67 L.Ed.2d 694 (1981).

trine is not to be}~f~l~ di~reg~ded, it has This is the analysis which the Court must significantly less bIte m SItuatIOns such as apply to the provisions of CAPTA at issue in
this involving an int~rlocutory decision that this lawsuit.4

M 4. The State also sugge~ts a fourth consideration, that being the amount funding provided under the statute compared ~ith the cost of complying with the obligations allegedly imposed by the statute. (State's Brief in Opposition at 10-11, 15-16.) The State submits that it receives in

excess of only $400,000 annually under CAPTA, while the costs of complying with the obligations asserted by the plaintiffs exceeds $5 million just for Milwaukee County alone. (/d.) Under such circumstances, the State argues that Congress could not possibly have intended to impose such

1110

967 FEDERAL SUPPLEMENT

A. THE SUPREME COURT'S RE-
CENT DECISION IN BLESSING V. FREESTONE
A little over one month ago, the Supreme Court issued its decision in Blessing v. Freestone, - U.S. - , 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). Blessing did not alter the above analysis, but applied it in a manner that calls into question at least some aspects of Judge Reynolds' prior decision. Blessing addressed whether certain provisions contained in Title IV-D of the Social Security Act create federal rights enforceable through an. action under § 1983. Title IV-D is part of the AFDC program, and provides that States, in order to qualify for federal AFDC funds, must certify that they will operate a child support enforcement program that conforms with the numerous requirements set forth in Title IV-D. The lawsuit was brought by five Arizona mothers who claimed an enforceable right to have the State's child support program achieve "substantial compliance" with the requirements of Title IV-D. The 9 th Circuit concurred with their claim, but the Supreme Court reversed, applying the three-part test outlined above. And while Blessing deals with a different statute than those at issue here, there are aspects of the decision which directly impact upon Judge Reynolds' prior decision.
First, the Supreme Court chided the 9 th Circuit for "taking a blanket approach to determining whether Title IV-D creates rights." Blessing, - U.S. at - - , 117 S.Ct. at 1361. The Court said it is "impossible to determine whether Title IV-D, as an undifferentiated whole, gives rise to undefined 'rights.'" ld. at - - , 117 S.Ct. at 1360. Rather, the Court said it is incumbent upon the plaintiffs to identify with particularity the specific rights they are claiming and the particular provision of the statute at issue supporting each claimed right. ld. Once that is done, the analyzing court must conduct a "methodical inquiry" that asks whether each particular claim and its correspond-

ing statutory provision satisfies the threepart test set forth in Wright and Wilder. ld.
Second, the Supreme Court gave further definition to the general requirement that Congress must have intended the statutory provision at issue to benefit the plaintiffs. For instance, statutory provisions "designed only to guide the State in structuring its systemwide efforts", while they "may ultimately benefit individuals who are eligible for [statutory] services", do not give rise to enforceable rights. Blessing, - U.S. at - - , 117 S.Ct. at 1361. Any benefit conferred by such provisions upon specific individuals is "indirect[]" at best and thus does not "fit [the Supreme Court's] traditional three criteria for identifying statutory rights." ld. The example given in Blessing was Title IV-D's extensive and detailed requirements regarding the composition of each State's child support data processing systems. "Obviously, these complex standards do not give rise to individualized rights to computer services. They are simply intended to improve the overall efficiency of the States' child support enforcement scheme." ld.
Third, the Supreme Court applied similar reasoning in rejecting the notion that a federal statute could give rise to an individual right in the maintenance of "sufficient" staffing levels in state agencies. For instance, the plaintiffs in Blessing, like the plaintiffs here, alleged that delays in case processing were attributable to "extraordinary staff shortages, inordinately high caseloads and unmanageable backlogs." ld. The Supreme Court acknowledged that Title IV-D and its implementing regulations generally required each State to establish a child support enforcement unit with "sufficient staffing" and organization. ld. at - - - - - , 117 S.Ct. at 1361-62. Such mandates, however, did not give rise to a federal right:
For one thing, the link between increased staffing and the services provided to any

a huge financial obligation upon the State in return for such a small financial contribution to the effort. (Id.) While this argument makes good sense, plaintiffs dispute the amount of funds received by the State in exchange for its compliance with CAPTA, and further argue that there is

no justification for defendants' failure to raise this issue in their prior motion to dismiss. (Plaintiffs' Reply Brief at 5-6.) Because the Court finds CAPTA unenforceable on other grounds, it need not decide the issue.

JEANINE B., BY BLONDIS v. THOMPSON
Cite as 967 F.Supp. 1104 (E.D.Wis. 1997)

1111

particular individual is far too tenuous to Although the applicability of the 1996 Act

support the notion that Congress meant to is not easy to determine (as shown by the

give each and every Arizonan who is eligi- following discussion), analysis under either

ble for Title IV-D the right to have the version of CAPTA provides a basis for recon-

State Department of Economic Security sideration. The 1996 Act does not appear to

staffed at a "sufficient" level. Further- have an explicit effective date. In such cases

more, neither the statute nor the regulation gives any guidance as to how large a staff would be "sufficient."

the statute is generally effective as of the date it was signed into law; here, October 3, 1996. That does not end the matter, howev-

Id. at -,117 S.Ct. at 1362.

er, because the Act seems to extend the

B. CAPTA
In their complaint, plaintiffs claimed that they have three enforceable federal rights

applicability of the old version of the statute to any "existing grants" in effect on the date the Act was passed:

under CAPTA which have been violated by "(a) IN GENERAL.-Notwithstanding

these defendants: (1) the right to prompt the enactment of the Child Abuse Preven-

and appropr:.ate investigation of reports of tion and Treatment Act Amendments of

child abuse or neglect; (2) the right to pro- 1996, a State or entity that has a grant,

tection from ·;hose who endanger their ~ contract, or cooperative agreement in ef-

and welfare; and (3) the right to such admin- ~~~ f~ on the date of the enactment of such
istrative procedures, trained and qualified AcLUnde~any program described in subpersonnel, programs and facilities that are section (b),~all continue to receive funds

necessary to deal effectively with child abuse and neglect. (Complaint at 11262.) Plaintiffs modified the,:e rights somewhat in their mo-

under such prOgram, subject to the original terms under wh~uch~fU'lJ,ds were
provided under the grant, t~e end

tion for preliminary injunction, arguing that of the applicable grant cycle."

~~~

they have a right to (1) "a system able to receive allegations of suspected child abuse or neglect", eiting 42 U.S.C.A. § 5106a(b)(I) (1995); (2) "a system for promptly investigating reports of suspected child abuse or neglect, and immediately acting to protect abused or neglected children", citing 42 U.S.C.A. §5to6a(b)(2) (1995); and (3) "adequate staffing, training, personnel, programs, services and facilities to carry out" the two latter tasks, ,~iting 42 U.S.C.A. § 5106a(b)(3) (1995). (Plaintiffs' Brief in Support at 1920.)
As indicated, the language of the above claims is dra\VIl directly from CAPTA provi-

Pub.L. 104-235 § 204 (emphasis added). Subsection (b) includes "The Emergency Child Abuse Prevention Services grant program under section 107A of this Act" (i.e., CAPTA), as one of the grant programs grandfathered under the ter:ms of § 204. Thus, if the State is currently operating under a CAPTA grant which was already in effect on October 3, 1996, it seems the grant is subject to the ter:ms of the old statute; that is, "subject to the original ter:ms under which such funds were provided under the grant, ...."
According to an affidavit submitted by the

sions codifieo. at 42 U.S.C.A. § 5106a (1995). State defendants, the State submitted its

However, it is drawn from an old version of most recent CAPTA grant application on

§ 5106a in effect at the time the complaint July 12, 1996. (Dibble Mf., Ex. A, 112.) The

was filed and when Judge Reynolds issued grant was awarded to the State on Septem-

his decision. Since that time, § 5106a was ber 30, 1996. (Dibble Aff., Ex. E, ~ 3.) The

amended and rewritten via the Child Abuse grant covered federal fiscal year 1996, which

Prevention and Treatment Act Amendments extends from October 1, 1996 through Sep-

of 1996, Pub.L. 104-235 § 107 ("the 1996 tember 30, 1997. (Dibble Mf. at 11112-3.)

Act" or "the Act"), enacted on October 3, Thus, the State apparently did have a CAP-

1996. By themselves these changes, if appli- TA grant already in effect on October 3,

cable, provide a strong justification for recon- 1996. The grant cycle attributable to that

sideration of Judge Reynolds' prior decision. grant extends through September 30, 1997.

1112

967 FEDERAL SUPPLEMENT

Accordingly, the State may continue to be bound by the old version of CAPTA until the next grant cycle begins for federal fiscal year 1997, i.e., until October 1, 1997. This may explain why the parties continue to discuss the old version of the statute and do not even mention the changes brought about by the 1996 Act. It also explains why, as previously mentioned, the Court analyzes both versions of the statute and concludes that neither the old nor the new version of CAPTA gives rise to federal rights enforceable under § 1983.5
1. The Old Version of CAPTA
[4] Under the old version of § 5106a, a State had to have in effect a State law relating to child abuse and neglect which included "provisions for the reporting of known and suspected instances of child abuse and neglect; .... " 42 U.S.C.A. § 5106a(b)(1)(A) (1995). Arguably separate from this requirement, there was also a requirement that each State "provide that" there be "prompt[]" investigations of all reports of known or suspected child abuse or neglect and take "immediate steps" to protect the health and welfare of any abused or neglected child. 42 U.S.C.A. § 5106a(b)(2) (1995). Finally, each State was required to "demonstrate that there are in effect throughout the State, in connection with the enforcement of child abuse and neglect laws and with the reporting of suspected instances of child abuse and neglect, such-
(A) administrative procedures;
(B) personnel trained in child abuse and neglect prevention and treatment; (C) training procedures;
(D) institutional and other facilities (public and private); and
(E) such related multidisciplinary programs and services,
as may be necessary or appropriate to ensure that the State will deal effectively with child abuse and neglect cases in the State; .... "

42 U.S.C.A. § 5106a(b)(3) (1995). Plaintiffs describe this last requirement as meaning that each State must have "adequate staffing, training, personnel, programs, services and facilities to carry out" the tasks set forth in subsections (b)(l)(A) and (b)(2) of the old statute. (Plaintiffs' Brief in Support at 1920.)
The foregoing is the version of the statute which Judge Reynolds interpreted as creating federal rights enforceable in an action under § 1983. However, the recent Blessing decision, as subsequent controlling precedent, provides a basis for reconsidering that ruling. For instance, plaintiffs claim that they have a right to such administrative procedures, trained and qualified personnel, and programs and facilities necessary to deal effectively with child abuse and neglect. This claim obviously stems from subsection (b)(3) of the old statute. Contrary to the "methodical inquiry" mandated under Blessing, Judge Reynolds did not isolate that provision of the statute to determine whether Congress intended that specific provision to benefit the plaintiffs. Blessing, - U.S. at - - - - - , 117 S.Ct. at 1360-61. Indeed, he did not discuss the first element of the Wilder test in connection with CAPTA at all. Jeanine B., 877 F.Supp. at 1285-86. Where he did apply the first element of the test, i.e., with respect to plaintiffs' additional claims under the Adoption Assistance and Child Welfare Act, he merely stated that the statute as a whole was intended to benefit the plaintiffs. Jeanine B., 877 F.Supp. at 1284, 1285. Blessing clearly rejects such a "blanket approach" to the issue. Blessing, - U.S. at - - , 117 S.Ct. at 1361.
More importantly, in applying the first element of the Wilder test, Blessing made it clear that statutory provisions "designed only to guide the State in structuring its systemwide efforts" are not intended to benefit any specific individuals who may be entitled to services. Rather, any benefits conferred on individual plaintiffs by such provisions are

5. It bears noting that, under either version of the statute, the County claims that it cannot be liable under CAPTA because it is not a party to the funding transaction between the Federal Government and the State, and that any obligations imposed by CAPTA are therefore imposed on the

State, not the County. (County's Brief in Opposition at 3-4.) This is another interesting issue which the plaintiffs strongly dispute (Plaintiffs' Reply Brief at 24, fn. 8), but which the Court need not address in this ruling.

JEANINE B., BY BLONDIS v. THOMPSON

1113

Cite as 967 F.Supp. 1104 (E.n.Wis. 1997)

"indirect[ J" 2.nd do not "fit [the] traditional child abuse and neglect cases .... " See, 42

three criterla for identifying statutory U.S.C.A. § 5106a(b)(3) (1995) and 45 C.F.R.

rights." Id. One of the examples given by § 1340.1 et. seq.; see also, Watson v. Dowl-

the Court in Blessing was the claimed right ing, 1994 WL 319295 *4 (S.D.N.Y.1994).

to "sufficient staffing" to enable the State to Thus, under Blessing, subsection (b)(3) of the

carry out its child support enforcement obli- old statute was not intended to confer any

gations. Id. at - - - - - , 117 S.Ct. at federal rights upon the plaintiffs and is too

1361-62. Plaintiffs here similarly claim a vague for judicial enforcement.

right to "adequate staffing, training, personnel, programE:, services and facilities to carry out" the State's responsibilities under CAPTA. (Plaintiffs' Brief in Support at 19-20.) The Supreme Court rejected the notion that such generalized requirements for sufficient levels of "staffing" or other organizational components Evinced Congress' intent to confer a federall'ight:
For one thlng, the link between increased staffing and the services provided to any particular individual is far too tenuous to support thE notion that Congress meant to give each and every Arizonan who is eligible for Title IV-D the right to have the State Department of Economic Security staffed at a "sufficient" level.
Id. at - , t17 S.Ct. at 1362. The Court also implied that such generalized requirements fail the third element of the Wilder test, insofar as they are too vague and amorphous for ju:l.icial enforcement absent any statutory or regulatory guidance:
Furthermore, neither the statute nor the regulation gives any guidance as to how large a staff would be "sufficient."
Id.

Plaintiffs claim Blessing is immaterial because "plaintiffs here are not seeking to enforce CAPTA's staffing provisions as a separate, unique requirement. Rather, plaintiffs seek sufficient staffing as a necessary prerequisite to fulfilling CAPTA's more specific mandates of 'prompt' investigations." (Plaintiffs' Correspondence to Court dated May 20, 1997.) "Blessing," plaintiffs continue, "does not discuss whether a provision requiring 'prompt' investigations would be capable of enforcement", so the decision has no application to this case. (Id.) Such an argument creates a redundancy within the statute. It suggests that in addition to the express requirement in subsection (b)(3) that a State put in place all "necessary and appropriate" personnel, training, programs and facilities to meet its CAPTA obligations, there is also an implicit requirement that it do so; implicit, that is, in the very fact that the State is required to provide for "prompt" investigations. But why would Congress create an express requirement in this regard if the same was implicit in the requirements already created? And even if such an implicit requirement exists, how can it be said to

Here, "the link" between plaintiffs' claims create a federal right when-under Bless-

for increased staffing, better training, better ing-its express counterpart does not? It

or more facilities, etc., and the services pro- bears repeating that this analysis takes place

vided to any particular child is just as "re- within the context of trying to determine

mote" as that rejected in Blessing. At most, whether Congress "intended" to confer a di-

subsection (b>(3) of the old statute was "de- rect benefit on the plaintiffs. Congress can-

signed ... to guide the State in structuring not have "intended" more by that which it

its systemwide efforts"; it was not intended said implicitly than by that which it said

to give every Wisconsin child a federal right explicitly, at least where the same thing is

to a CPS unit with a certain number of phone being said in both contexts. Thus, to the

lines or fax machines or a certain number of extent that the State's obligations to pass a

employees with a certain type or level of law for the reporting of known and suspected

training. Nor does old § 5106a, nor any instances of child abuse, and to provide for

federal regulation issued thereunder, define "prompt" investigations of such reports, con-

what would constitute "necessary and appro- tain an implicit requirement for adequate

priate" procedures, training, personnel, facili- staffing, training, programs and facilities to

ties or programs to "deal effectively with carry out those obligations, said requirement

1114

967 FEDERAL SUPPLEMENT

does not give rise to a federal right enforceable under § 1983.
Plaintiffs' argument also seems a bit confused. As the Court reads the old version of CAPTA, it requires the State to do three things: (1) pass a law that includes provisions for the reporting of child abuse; (2) provide that child abuse reports are promptly investigated and that immediate steps are taken to protect the child at issue; and (3) create an adequate organizational structure to comply with numbers (1) and (2). Plaintiffs' CAPTA claims have always focused, at least substantively, on the third requirement; specifically, on the adequacy of the organizational structure within Milwaukee County's CPS unit. For instance, throughout this lawsuit, and particularly in connection with the current request for injunctive relief, the focus of plaintiffs' CAPTA claims has been that CPS is terribly understaffed, that the little staff it does have is inadequately trained, that it does not have enough phone lines to handle the volume of calls coming in, and that it does not have appropriate monitoring and quality assurance programs to adequately back-up and review its operations. (Plaintiffs' Brief in Support at 2-3, 7-10.) These are all claims which fall within the scope of the third requirement, which is to say they fall within subsection (b)(3) of the old statute. They should thus rise and fall depending on whether or not that provision of the statute gives rise to a federal right. The Court having found that it does not, the plaintiffs cannot simply pursue the same claims through the guise of the other two provisions of the statute.
[5] Which leaves the question: What then is required by subsections (b)(1) and (b)(2)of the old statute? As for subsection (b)(1), the answer is simple. That section merely requires that the State "have in effect a State law relating to child abuse and neglect, including . . . provisions for the reporting of known and suspected instances of child abuse and neglect; .... " 42 U.S.C.A. § 5106a(b)(1)(A) (1995). Wisconsin clearly meets this requirement. See, Wis. Stat. § 48.981. Plaintiffs argue, however, that this provision requires the defendants "to maintain a system able to receive allegations of

suspected child abuse or neglect." (Plaintiffs' Brief in Support at 19.) This interpretation simply rewrites the statute. Subsection (b)(l) requires a State law with certain provisions, nothing more. It does not require that the State "maintain" a child abuse reporting "system" that is capable of working properly in every single instance, which in turn could give rise to the "direct" benefit Blessing requires.
[6] As for subsection (b)(2), the answer is more difficult. That section requires the State to "provide that" investigations of reports of child abuse be "initiated promptly" and, if any given report proves true, to further "provide that" "immediate steps" are taken to protect the child at issue. 42 U.S.C.A. § 5106a(b)(2) (1995). Judge Reynolds did not elaborate on what this language meant and required; he only stated generally that the language was couched in "mandatory" terms and was not so "vague and amorphous" as to be nonjusticiable. Jeanine B., 877 F.Supp. at 1286. Even accepting this position as correct, the defendants have not violated plaintiffs' rights under this provision of CAPTA. The argument turns upon the meaning of the phrase "provide that", something Judge Reynolds did not address in his prior OpInIOn. The D.C. Circuit Court of Appeals has addressed it, however, in a decision issued subsequent to Judge Reynolds' decision. The D.C. Circuit concluded that the phrase did not, as suggested here by the plaintiffs, impose a direct and independent obligation upon the State to itself provide prompt investigations:
Our reading follows the plain language of the statute. CAPTA does not say that a "state shall" investigate promptly; it says that a "state shall provide that" investigations shall be initiated.
Doe v. District of Columbia, 93 F.3d 861, 866, n. 6 (D.C.Cir.1996). The Circuit Court found that the District of Columbia fulfilled this requirement through a provision in its child abuse statute requiring investigations of child abuse reports within 24 hours, regardless of whether that requirement was actually fulfilled in every, or any, specific case:

JEANINE B., BY BLONDIS v. THOMPSON
Cite as 967 F.Supp. 1104 (E.D.Wis. 1997)

1115

Like the Adoption Act provisions analyzed immediate steps to protect the child if there

in Suter b Artist M., 503 U.S. 347, 112 is reason to suspect that he or she is in

S.Ct. 1360, 118 L.Ed.2d 1 (1992)], the danger, Wis. Stat. § 48.981(3)(b). Thus, un-

CAPTA provision at issue speaks in man- der Doe, Wisconsin has not violated any

datory language. But it mandates merely rights plaintiffs may have under subsection

that the state "provide that" investigations (b)(2). This interpretation of the statute

will occur when reports for abuse are re- does not require the Court to reconsider

ceived. One difference, of course, is the Judge Reynolds' ruling vis-a-vis subsection

Adoption Act specifically requires states to (b)(2). It also brings a sensible construction

submit a plan, whereas CAPTA grants to the statute as a whole, because it allows

states fle}ibility in how they choose to subsections (b)(2) and (b)(3) to have indepen-

"provide that" investigations shall be initi- dent meanings, rather than the overlapping

ated. The District has fulfilled this condi- or redundant meanings implicit in plaintiffs'

tion for funding in enacting the District of arguments.6

Columbia Prevention of Child Abuse and Neglect Act of 1977, D.C. CODE ANN. §§ 6-2102(b) & 6-2103(c), which provides, inter alia, that the Child Family Services Division (CFSD) "shall commence an investigation of all reports alleging neglect other than abuse within 24 hours of the receipt of the report" and that the police department shall "immediately" investigate reports of abused children. Even if Doe can demonstrate that the District of Columbia law was violated in this particular case, she does not have a cause of action under § 1983. Doe may not enforce the laws of the District of Columbia in federal court under § 1983, just as the respondents in Suter were not permitted to enforce the provisions contained in Illinois' plan under the Adoption Act.
Id. at 866-67.

Additionally, this interpretation parallels the result that will eventually be compelled by the new statute. That is, regardless of whether the old or new version of the statute applies at this juncture, the new statute should apply to this case no later than October 1, 1997, the date upon which the State's next CAPTA grant is likely to go into effect. Because the Court concludes that the new statute does not give rise to any federal rights enforceable under § 1983 (see, Section IIIB-2, infra), any relief sought by the plaintiffs under the old statute would arguably expire as of October 1 st, further calling into question the wisdom and/or effectiveness of granting any relief at this juncture.
Finally, the foregoing result is more consistent with what the Court believes to be the emerging and better interpretation of CAPTA. That is, the Court disagrees with the

Wisconsin':; child abuse reporting statute conclusion that CAPTA's terms are not too

contains the same requirements as the stat- "vague and amorphous" to be judicially en-

ute analyzed in Doe, i.e., a requirement that forced. While reasonable minds may differ

a report of child abuse be investigated within in this regard (which is why the Court does

24 hours, Wis. Stat. § 48.981(3)(c), and a not rely upon this disagreement as a basis

requirement that the police or sheriff take for reconsidering Judge Reynolds' decision),

6. Plaintiffs suggest that this interpretation itself creates a redundancy within the statute. Plaintiffs argue th at subsection (b)(1) already requires the States to enact a child abuse law. They suggest that interpreting subsection (b)(2) as merely requiring the passage of an additional law is redundant. (Plaintiffs' Reply Brief at 1718.) Moreo'ler, if all Congress had in mind in enacting subsection (b)(2) was the enactment of additional laws, plaintiffs ask why that section is phrased so differently from subsection (b)(1)'s express reference to the passage of a statute. (Id.) The Court believes the interpretation provided in Doe does not create the redundancies or inconsistencies alleged by the plaintiffs. Subsec-

tion (b)(1) is unique because it requires the passage of a statute, a statute which itself only requires the reporting of child abuse. Subsection (b)(2) is concerned with the investigation of child abuse, not the reporting of the same, and under Doe the States have broad discretion in "providing that" such investigations are carried out. Unlike subsection (b)(l), that discretion includes, but does not require, the passage of a statute providing for the same. Presumably the States can meet this requirement in a number of different ways other than by passing a statute, and that provides an important distinction between subsections (b)(1) and (b)(2).

1116

967 FEDERAL SUPPLEMENT

it also believes that the current trend in federal appellate court decisions is contrary to Judge Reynolds' decision. In Doe, for example, a decision subsequent to Judge Reynolds' decision, the D.C. Circuit concluded that CAPTA was more like the provisions of the Adoption Assistance and Child Welfare Act at issue in Suter, which the Supreme Court rejected as a basis for enforceable rights, than the provisions of the Medicaid legislation at issue in Wilder, which the Supreme Court accepted as a basis for enforceable rights. Thus, Doe states that CAPTA imposes only a general duty upon the State which does not unambiguously confer an enforceable right upon its beneficiaries:
In Suter, the Supreme Court was careful to point out that the Medicaid legislation at issue in Wilder "set forth in some detail the factors to be considered" in setting rates. The Court distinguished the Adoption Act, noting that it provided no guidance in how to measure reasonable efforts. The Court in Suter made this determination despite regulations promulgated under the Adoption Act which provide a laundry list of services that may be included in a state's proposal. CAPTA analogously fails to offer a definition of what constitutes a "prompt investigation." The CAPTA regulations, like those promulgated under the Adoption Act, merely offer myriad suggestions of what an investigation may include. See, e.g., 45 C.F.R. § 1340.14(d), (f) (1995). Unlike the regulations in Wilder, the CAPTA regulations do not mandate factors that must be part of an "investigation." See Wilder, 496 U.S. at 519, 110 S.Ct. at 252223 (noting that "the statute and regulation set out factors which a State must consider in adopting its rates") (emphasis added). The striking parallels to the Adoption Act and its related regulations place this case squarely under the rationale of Suter and therefore Wilder is distinguishable.
Id. A similar position was adopted by the 6 th Circuit in Tony L. v. Childers, 71 F.3d 1182 (6 th Cir.1995), cert. denied, - U.S. - - , 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996). Tony L. held that CAPTA was too vague to be enforced by the courts:
Ultimately, neither CAPTA nor the relevant regulations mandate a particular

means of investigation or state what type of actions must be taken to protect abused or neglected children. Defendants retain discretion under CAPTA to disregard the examples provided.
It is apparent, and reasonable, that Congress wanted to leave states a certain amount of discretion in this area. If we were to hold that Defendants should have taken some action, we would run the risk of limiting the discretion inherent in Defendants' duties under CAPTA.
Id. at 1189.
Plaintiffs argue that Doe and Tony L. are simply incorrect, citing decisions in Albiston v. Maine Comm'r ofHuman Services, 7 F.3d 258 (1 st Cir.1993) and Kindred v. Duckworth, 9 F.3d 638 (7 th Cir.1993). These cases are distinguishable. Albiston asked whether requirements for "prompt" disbursement of "pass-through" payments under Title IV-D (the statute at issue in the Blessing decision), and "reasonabl[y] prompt[]" disbursement of "gap" payments under Title IV-A, are capable of judicial enforcement. The Court found they were, but the underlying circumstances are significantly different than those involved here. First, the tasks which had to be performed "prompt[ly]" were precisely delineated by the statute and the underlying regulations, i.e., the disbursement of a set and/or mathematically determined sum of money. The "investigations" and "steps" which CAPTA says should be conducted "prompt[ly]" and/or "immediate[ly]" are not so precisely delineated; indeed, the regulations allow the States wide discretion and provide only a laundry list of actions which may be, but need not be, taken in this regard. Second, the regulations at issue in Albiston provide express guidance as to what is "prompt", i.e., fifteen days for pass-through payments and in the case of gap payments, without an; delays attributable to the State's administrative process. The regulations implementing CAPTA simply do not discuss what qualifies as "prompt",nor d0 they generally discuss when an investigation must be conducted or when responsive steps must be taken.
Kindred asked whether a consent decree requiring prison officials to, among other

JEANINE B., BY BLONDIS v. THOMPSON
Cite as 967 F.Supp. 1104 (E.D.Wis. 1997)

1117

things, "prompt[ly)" deliver and transmit a Under the new version, the plan submitted

prisoner's confidential correspondence was by each State to qualify for a CAPTA grant

generally enforceable. There was no argu- must include "to the maximum extent practi-

ment against enforceability on the grounds cable,. .. an outline of the activities that the

that the "prompt[ness]" requirement was too state intends to carry out ... to achieve the

vague to be judicially enforced. Moreover, in purposes of this subchapter." 42 U.S.C.A.

the context of a consent decree, a court § 5106a(b)(2) (Supp.1997). This outline must

interprets such a phrase because it must in contain "an assurance in the form of a certi-

order to rewlve the dispute between the fication by the chief executive officer of the

parties. It is an entirely different question State that the State has in effect and is

to ask whether a phrase in a statute is enforcing a State law, or has in effect and is

sufficiently vague for purposes of determin- operating a Statewide program, relating to

ing whether or not Congress intended the Ch'lId abuse and negIec t.. " . . 42 U.S.C.A. statute to create federal rights enforceable § 5106a(b)(2)(A) (Supp.1997) (emphasis add-

under § 19S9. The latter is the issue before ed). Any such "State law" or "Statewide

this· Court and Kindred simply does not speak to it.
In summation, Blessing provides a basis for reconsidering some parts of Judge Reynolds' prior ruling regarding the private enforceability of the old version of CAPTA. Moreover, J1.dge Reynolds' prior decision did not purport to interpret what the statute

program" must include-
(i) provisions or procedures for the reporting of known and suspected instances of child abuse and neglect; (ii) procedures for the immediate screening, safety assessment, and prompt investigation of such reports;

required vis· a-vis subsection (b)(2); specifically, what i~ meant by the requirement that the State "provide that" there be prompt investigationll of child abuse reports. Based on the D.C. Circuit's and 6th Circuit's subsequent decisi<ms in Doe and Tony L., the Court concludes that the State has met its obligations under that language. That conclusion coincides not only with what will be the state of the law as of October 1, 1997, but also with what the Court believes to be the better interpretation of the old statute.

(iii) procedures for immediate steps to be taken to ensure and protect the safety of the abused or neglected child ... and ensuring their placement in a safe environment; ....
42 U.S.C.A. § 5106a(b)(2)(A)(i)-(iii) (Supp. 1997) (emphasis added). Also, the new statute drops the language of the prior statute
requiring States to demonstrate that they
had the "necessary and appropriate" personnel, training, procedures, programs, services and facilities to "deal effectively with child

2. The N,ew Version of CAPTA

abuse".7 42 U.S.C.A. § 5106a(b)(3) (1995).

[7] The new version of CAPTA is struc- The new statute requires reconsideration turally quite different from the old version. of Judge Reynolds' decision. First, under

7. The only language of the new statute even remotely close to this prior language is found at § 5106a(b)(2)(C), which requires the State plan to include-
A description of(i) the services to be provided under the grant to individuals, families, or communities, either directly 01' through referrals aimed at preventing the occurrence of child abuse and neglect; (ii) the training to be provided under the grant to support direct line and supervisory personnel in report taking, screening, assessment, dec:sion making, and referral for investigating suspected instances of child abuse and neglect; and (iii) the training to be provided under the grant for individuals who are required to re-

port suspected cases of child abuse and ne-

glect; ....

42

V.S.C.A.

§ 5106a(b)(2)(C)(i)-(iii)

(Supp.1997)(emphasis added). The primary fo-

cus of the new language is on the "services" and

"training" to be provided under each State's

respective grants. The new language does not

mandate any particular level of training or ser-

vices, calling only for a "description" of the

same. Nor does the new language even purport

to set forth any general standards for the State's

"training" and "services", such as the prior stat-

ute's reference to all "necessary and appropri-

ate" procedures, personnel. training, programs

and facilities "to ensure that the State will deal

effectively with child abuse and neglect

cases .... " 42 V.S.C.A. § 5106a(b)(3) (1995).

1118

967 FEDERAL SUPPLEMENT

the old statute, one could at least argue that, in addition to the requirement for a State law providing for the reporting of known or suspected instances of child abuse, the State had separate obligations to (1) provide for prompt investigations and immediate steps in response to reports of child abuse; and (2) demonstrate that it had sufficient personnel, training, procedures, programs, services and facilities to carry out that responsibility.8 Under the new statute, the State has the single obligation of assuring the Secretary that it has and enforces a State law which includes procedures for the immediate screening, safety assessment, and prompt investigation of child abuse reports, as well as procedures for the taking of immediate steps to protect the safety of an abused child. 42 U.S.C.A. § 5106a(b)(2)(A) (Supp.1997). If such a statute is in place, there is no separate requirement that the State actually "provide" prompt investigations of child abuse reports or immediate steps in response to such reports. Nor is there any requirement that the State "demonstrate" that it has in place sufficient personnel, training, procedures, programs, services or facilities, whether it be to enforce its State law, or to promptly investigate and respond to reports of child abuse, or to otherwise "deal effectively with child abuse and neglect cases in the State." 42 U.S.C.A. § 5601a(b)(3) (1995). All that is required is a state law or program containing certain procedures for investigating and responding to reports of child abuse.
There has never been any claim in this case that the State of Wisconsin does not have in place a state law relating to child abuse which contains the procedures called for in new § 5106a(b)(2)(A). The relevant statute is Wis. Stat. § 48.981, referenced earlier in this opinion. Section 48.981 provides for, in pertinent part: (1) the "immediate" reporting of all known or suspected instances of child abuse or neglect to the proper authorities-48.981 (3)(a); (2) the "immediate" investigation of such reports by the police or sheriff if there is reason to suspect that the child is in immediate danger, with the possibility of taking the child into custody if nec-

essary-48.981(3)(b); (3) in all other instances, an investigation by the relevant county child welfare department "[w]ithin 24 hours" after receiving a report of child abuse to determine whether the child is in need of protection or services, and including procedures governing such an investigation and additional provisions for either taking the child into custody or for the provision of other necessary services to the child or his family-48.981(3)(c)(1)-(3); and (4) the determination, "within 60 days" after receiving a report of child abuse, as to whether the reported abuse actually occurred or is likely to occur-48.981(3)(c)(4). These statutory provisions clearly meet the requirements of the new statute. Thus, even assuming that
the new statute gives rise to federal rights
enforceable under § 1983, those rights have not been violated here.
[8] Plaintiffs complain, however, that the State is not adequately enforcing or complying with the requirements of § 48.981; specifically, that it does not provide for adequate staff, facilities, programs or training to promptly receive, investigate and respond to reports of child abuse, or otherwise carry out its child welfare responsibilities. (Plaintiffs' Brief in Support at 7-12.) As discussed in the previous section, this has always been the import of plaintiffs' CAPTA claims and is the consistent theme of the several affidavits submitted in support of plaintiffs' current request for emergency relief. But the language of the old statute supporting plaintiffs' claimed "right" to sufficient personnel, facilities, training, programs, etc., does not exist in the new statute. Moreover, as Judge Reynolds previously noted, the 11th Amendment precludes this Court from ordering the State to properly enforce or comply with its own laws, and CAPTA cannot be interpreted in a manner that effectively overrides the State's 11 th Amendment immunity in this regard. See, Jeanine B., 877 F.Supp. at 1276, 1279; see also, Doe, 93 F.3d at 866-67 ("Even if [plaintiff] can demonstrate that the District of Columbia law was violated in this particular case, she does not have a cause of

8. Note, however, that the Doe decision concluded that the State did not have a direct obligation under the old statute to itself provide prompt

investigations of reports of child abuse, a conclusion with which this Court agrees. (See, Section IIIB-I, supra.)

TUSZKIEWICZ v. ALLEN-BRADLEY CO., INC.

1119

Cite as 967 F.Supp. 1119 (E.D.Wis. 1997)

action under § 1983. [Plaintiff] may not en- 1997. The parties shall submit simultaneous

force the laws of the District .,. in federal reply briefs on or before July 21, 1997.

court under § 1983.").

Thus, if the new statute applies, it represents a subsequent change in the controlling law which clearly warrants reconsideration of Judge Reynolds' prior decision. Upon reconsideration, it is clear that plaintiffs' position is severely undercut by the new statute, and that the same either does not give rise to the rights claimed by the plaintiffs, or that said rights have not been violated by the defendants' conduce.

Robert W. TUSZKIEWICZ, Plaintiff, v.

IV
Defendants have only requested reconsideration of Judge Reynolds' decision concerning whether CAPTA gives rise to federal rights enforceable under § 1983; they have not requested reconsideration of the decision vis-a-vis plaintiffs' claims under the Adoption Assistance and Child Welfare Act ("AACWA"). Their failure to do so may stem from the fact that plaintiffs' motion for injunctive relief was based only on CAPTA, and also from the fact that· Blessing was decided after the briefing on this matter was concluded. In any event, the Court believes, at least preliminarily, that Blessing impacts upon the coneinued validity of Judge Reynolds' decision that the AACWA creates federal rights enforceable under § 1983. To this end, the Court would like the parties to brief the issue of whether Blessing warrants reconsideration of Judge Reynolds' decision regarding the AACWA.
NOW THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDEREDTHAT:
1. Plaintiffs' motion for a preliminary injunction is denied;
2. Defendants' motion for reconsideration of Judge Re~'Ilolds' prior ruling on the private enforceability of CAPTA is granted, and plaintiffs' CAPTA claims are dismissed; and
3. The pa::ties shall submit simultaneous briefs regard:ng whether the Blessing decision warrants reconsideration of Judge Reynolds' prior ruling on the private enforceability of the AACWA on or before July 7,

ALLEN-BRADLEY COMPANY, INC., Defendant.
No. 96-C-llO.
United States District Court, E.D. Wisconsin.
June 24, 1997.
As Corrected June 25, 1997.
Former employee suffering from symptoms of hydrocephalus brought action against employer, alleging disability discrimination in violation of Americans with Disabilities Act (ADA). Employer moved for summary judgment. The District Court, Myron L. Gordon, J., held that: (1) employee failed to show that he was "qualified individual with a disability," and thus, employee failed to establish prima facie case of discriminatory discharge, and (2) employee failed to establish failure to accommodate claim.
Motion granted.
1. Civil Rights e:;.173.1
Employee suffering from symptoms of hydrocephalus failed. to show that he was "qualified individual with a disability," within meaning of ADA, at time employer chose to discharge him, and thus, employee failed to establish prima facie case of discriminatory discharge, where only evidence employee submitted showed that, with or without accommodation, he could not perform job.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,
v. JAMES DOYLE, et al.,
Defendants.

Case No. 93-C-547

DECISION AND ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that:
1

Case 2:93-cv-00547-RTR Filed 05/03/07 Page 1 of 2 Document 541

The Plaintiffs’ Unopposed Motion for Plaintiffs’ Attorneys’ Fees is GRANTED, and further notice to the Class is WAIVED.
It is hereby further ORDERED that partial final judgment be entered in favor of the plaintiffs, Jeanine B., et. al., against the defendants, James Doyle, et al., in the sum of $33,000.00, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of the plaintiffs’ claims for attorneys’ fees and expenses for the period January 1, 2006 through June 30, 2006.
Dated at Milwaukee, Wisconsin this 3rd day of May, 2007. BY THE COURT s/ Rudolph T. Randa ____________________ Hon. Rudolph T. Randa Chief Judge
2 Case 2:93-cv-00547-RTR Filed 05/03/07 Page 2 of 2 Document 541

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,
-vsJAMES DOYLE, et al.,
Defendants.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 12/17/07 Page 1 of 2 Document 543

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, JAMES DOYLE, et al., in the sum of $77,685.00, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the period July 1, 2006 through June 30, 2007.
IT IS SO ORDERED. Dated at Milwaukee, Wisconsin, this 17th day of December, 2007.
SO ORDERED, s/ Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge
-2Case 2:93-cv-00547-RTR Filed 12/17/07 Page 2 of 2 Document 543

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,
-vsJAMES DOYLE, et al.,
Defendants.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 12/01/08 Page 1 of 2 Document 549

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, JAMES DOYLE, et al. in the sum of $49,144.00, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the period January 1, 2008 through June 30, 2008.
Dated at Milwaukee, Wisconsin, this 1st day of December, 2008. SO ORDERED, s/ Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge
-2Case 2:93-cv-00547-RTR Filed 12/01/08 Page 2 of 2 Document 549

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiff,
-vsJAMES DOYLE, et al.,
Defendant.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 05/05/09 Page 1 of 2 Document 551

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, JAMES DOYLE, et al., in the sum of $40,493.28, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the period July 1, 2008, through December 31, 2008.
Dated at Milwaukee, Wisconsin, this 5th day of May, 2009. SO ORDERED, s/ Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge
-2Case 2:93-cv-00547-RTR Filed 05/05/09 Page 2 of 2 Document 551

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,
-vsJAMES DOYLE, et al,
Defendants.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support and the Attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

It is hereby ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, JAMES DOYLE, et al., in the sum of $49,599.61, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the period January 1, 2009, through June 30, 2009.
Dated at Milwaukee, Wisconsin, this 20th day of January, 2009. SO ORDERED, s/ Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge
-2-

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,
-vsJAMES DOYLE, et al.,
Defendants.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ First Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 12/07/10 Page 1 of 2 Document 555

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs JEANINE B., et al., against the defendants, JAMES DOYLE, et al., in the sum of $61,163.37, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the periods July 1, 2009 through December 31, 2009, and January 1, 2010 through June 30, 2010.
Dated at Milwaukee, Wisconsin, this 7th day of December, 2010. SO ORDERED, s/ Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge
-2Case 2:93-cv-00547-RTR Filed 12/07/10 Page 2 of 2 Document 555

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al, Plaintiff,
-vsSCOTT WALKER, et al.,
Defendant.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 12/01/11 Page 1 of 2 Document 558

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, SCOTT WALKER, et al., in the sum of $38,722.63, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the periods July 1, 2010, through December 31, 2010, and January 1, 2011, through June 30, 2011.
Dated at Milwaukee, Wisconsin, this 1st day of December, 2011. BY THE COURT: __________________________ HON. RUDOLPH T. RANDA U.S. District Judge
-2Case 2:93-cv-00547-RTR Filed 12/01/11 Page 2 of 2 Document 558

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,

v. SCOTT WALKER, et al.,
Defendants.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 08/20/12 Page 1 of 2 Document 572

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, SCOTT WALKER, et al., in the sum of $20,370.47, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the period July 1, 2011 through December 31, 2011. IT IS SO ORDERED. Dated: August 20, 2012
HON. RUDOLPH T. RANDA U.S. District Court Judge
Case 2:93-cv-00547-RTR Filed 08/20/12 Page 2 of 2 Document 572

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al., Plaintiffs,

v. SCOTT WALKER, et al.,
Defendants.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, and the attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having previously ordered that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 01/21/14 Page 1 of 2 Document 581

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, SCOTT WALKER, et al., in the sum of $10,438.10, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the period January 1, 2013 through June 30, 2013. IT IS SO ORDERED. Dated: January 21, 2014
HON. RUDOLPH T. RANDA, U.S.D.J.
Case 2:93-cv-00547-RTR Filed 01/21/14 Page 2 of 2 Document 581

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

JEANINE B., et al.,

Plaintiffs,

-vs-

JAMES DOYLE, et al., Defendants.

Case No. 93-C-547

ORDER

The Court having reviewed the Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses Per Stipulated Agreement, the Memorandum in Support, the Affidavit of Marcia Robinson Lowry, Esq. and attached Exhibits, including the Stipulated Agreement of the parties;
Notice having been previously made to the Plaintiff class pursuant to Rule 23(h) of the Federal Rules of Civil Procedure by Order of this Court dated November 29, 2004, as to Plaintiffs’ first Unopposed Motion for Plaintiffs’ Attorneys’ Fees and Expenses;
And this Court having determined that further notice to the Class of periodic fee applications for subsequent monitoring and/or enforcement work by Plaintiffs’ Attorneys would be unduly burdensome and is not necessary under Rule 23(h);
The Court hereby ORDERS that: The Plaintiffs’ Unopposed Motion is GRANTED, and further notice to the Class is WAIVED.

Case 2:93-cv-00547-RTR Filed 05/23/05 Page 1 of 2 Document 531

It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al., against the defendants, JAMES DOYLE, et al, in the sum of $33,000, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs’ claims for attorneys’ fees and expenses for the period June 1, 2004 through December 31, 2004.
Dated at Milwaukee, Wisconsin, this 23rd day May, 2005. SO ORDERED, s/ Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge
-2Case 2:93-cv-00547-RTR Filed 05/23/05 Page 2 of 2 Document 531

 
 CLOSED,PROTO,TIMESTUDY
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:93−cv−00547−RTR

B et al v. Governor WI et al Assigned to: Judge Rudolph T Randa Demand: $0 Case in other court: 97−01982 Cause: 28:1343 Violation of Civil Rights
Plaintiff
Jeanine B by her next friend Robert Blondis

Date Filed: 06/01/1993 Date Terminated: 12/02/2002 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Eric E Thompson Children's Rights Inc 88 Pine St − Ste 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 Email: ethompson@childrensrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry Children's Rights Inc 88 Pine St − Ste 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ann K Bloodhart Gray Plant Mooty Mooty & Bennett 3400 City Ctr 33 S 6th St Minneapolis, MN 55402−3796 612−343−2800 TERMINATED: 04/25/2007

Anne W Murdaugh American Civil Liberties Union Foundation 132 W 43rd St New York, NY 10036 212−944−9800 TERMINATED: 06/26/1996

Christopher T Dunn New York Civil Liberties Union 125 Broad St − 19th Fl New York, NY 10004 212−382−0557 Fax: 212−607−3318 TERMINATED: 02/24/1998

Cynthia J Kasak Dorsey & Whitney LLP 50 S 6th St − Ste 1500 Minneapolis, MN 55402−1498 612−340−2600 TERMINATED: 08/30/2001

Daniel S Dorsky Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 1 of 57

Children's Rights Inc 88 Pine St − Ste 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 TERMINATED: 04/25/2007
Gregory R Merz Gray Plant Mooty Mooty & Bennett 3400 City Ctr 33 S 6th St Minneapolis, MN 55402−3796 612−343−2800 TERMINATED: 04/15/2003
Heather Klaas Dorsey & Whitney LLP 50 S 6th St − Ste 1500 Minneapolis, MN 55402−1498 612−340−2600 Fax: 612−340−2868 TERMINATED: 08/30/2001
James K Langdon , II Dorsey & Whitney LLP 50 S 6th St − Ste 1500 Minneapolis, MN 55402−1498 612−340−2600 Fax: 612−340−2868 TERMINATED: 04/15/2003
Jean F Holloway Holloway Law Office 6600 Kenney Pl Edina, MN 55439 952−943−8116 TERMINATED: 04/15/2003
Kacy F Kleinhans Gray Plant Mooty Mooty & Bennett 3400 City Ctr 33 S 6th St Minneapolis, MN 55402−3796 612−343−2800 TERMINATED: 04/25/2007
Kellie M Nealon Dorsey & Whitney LLP 50 S 6th St − Ste 1500 Minneapolis, MN 55402−1498 612−340−2600 Fax: 612−340−2868 TERMINATED: 08/30/2001
Kenneth A Prine Padmanabhan & Dawson PLLC 45 S 7th St Ste 2315 Minneapolis, MN 55402 612−343−2800 Fax: 612−333−0066 TERMINATED: 04/25/2007
Kristin Solveig Westgard Dorsey & Whitney 50 S 6th St − Ste 1500
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 2 of 57

Minneapolis, MN 55402−1498 612−340−2600 TERMINATED: 08/30/2001

Lawrence A Moloney Gray Plant Mooty Mooty & Bennett 3400 City Ctr 33 S 6th St Minneapolis, MN 55402−3796 612−343−2800 TERMINATED: 04/15/2003

Mark G Peters Children's Rights Inc 88 Pine St − Ste 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 TERMINATED: 01/11/1999

Martha Stone Children's Rights Inc 88 Pine St − Ste 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 TERMINATED: 04/25/2007

Micabil Diaz Martinez American Civil Liberties Union of WI Foundation Inc 207 E Buffalo St − Ste 325 Milwaukee, WI 53202 414−272−4032 TERMINATED: 04/15/2003

Peter M Koneazny Legal Aid Society of Milwaukee Inc Civil Division 229 E Wisconsin Ave − Ste 200 Milwaukee, WI 53202 414−765−0600 TERMINATED: 02/13/2001

Quentin R Wittrock Gray Plant Mooty Mooty & Bennett 3400 City Ctr 33 S 6th St Minneapolis, MN 55402−3796 612−343−2800 TERMINATED: 04/15/2003

Rachel H Park Children's Rights Inc 88 Pine St − Ste 800 New York, NY 10005 212−683−2210 Fax: 212−683−4015 TERMINATED: 04/25/2007

Case: 2:93-cv-547

Sarah B Hechtman Children's Rights Inc 88 Pine St − Ste 800 New York, NY 10005 212−683−2210
As of: 02/12/2019 11:29 AM CST 3 of 57

Fax: 212−683−4015 TERMINATED: 04/25/2007

Plaintiff
Aline H by her next friend Wesley Scott

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address)
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 4 of 57

TERMINATED: 04/15/2003

Mark G Peters (See above for address) TERMINATED: 01/11/1999

Martha Stone (See above for address) TERMINATED: 04/25/2007

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Peter M Koneazny (See above for address) TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Maurice R by his next friend Wesley Scott

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 5 of 57

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Mark G Peters (See above for address) TERMINATED: 01/11/1999

Martha Stone (See above for address) TERMINATED: 04/25/2007

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Peter M Koneazny (See above for address) TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Douglas R by his next friend Wesley Scott

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Robinson Lowry Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 6 of 57

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007
Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996
Christopher T Dunn (See above for address) TERMINATED: 02/24/1998
Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001
Gregory R Merz (See above for address) TERMINATED: 04/15/2003
Heather Klaas (See above for address) TERMINATED: 08/30/2001
James K Langdon , II (See above for address) TERMINATED: 04/15/2003
Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007
Kellie M Nealon (See above for address) TERMINATED: 08/30/2001
Kenneth A Prine (See above for address) TERMINATED: 04/25/2007
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Mark G Peters (See above for address) TERMINATED: 01/11/1999
Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 7 of 57

(See above for address) TERMINATED: 04/15/2003

Peter M Koneazny (See above for address) TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Carolyn D by her next friend Cynthia Lepkowski

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address)
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 8 of 57

TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Mark G Peters (See above for address) TERMINATED: 01/11/1999

Martha Stone (See above for address) TERMINATED: 04/25/2007

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Peter M Koneazny (See above for address) TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
James B by his next friend Michael Vruno

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 9 of 57

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998
Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001
Gregory R Merz (See above for address) TERMINATED: 04/15/2003
Heather Klaas (See above for address) TERMINATED: 08/30/2001
James K Langdon , II (See above for address) TERMINATED: 04/15/2003
Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007
Kellie M Nealon (See above for address) TERMINATED: 08/30/2001
Kenneth A Prine (See above for address) TERMINATED: 04/25/2007
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Mark G Peters (See above for address) TERMINATED: 01/11/1999
Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Peter M Koneazny (See above for address) TERMINATED: 02/13/2001
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 10 of 57

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Mindy D by her next friend Shelia M. Smith

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007

Kristin Solveig Westgard Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 11 of 57

(See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Mark G Peters (See above for address) TERMINATED: 01/11/1999

Martha Stone (See above for address) TERMINATED: 04/25/2007

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Peter M Koneazny (See above for address) TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Alan A by his next friend Shelia Hill−Roberts

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address)
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 12 of 57

Plaintiff

TERMINATED: 04/15/2003
Heather Klaas (See above for address) TERMINATED: 08/30/2001
James K Langdon , II (See above for address) TERMINATED: 04/15/2003
Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007
Kellie M Nealon (See above for address) TERMINATED: 08/30/2001
Kenneth A Prine (See above for address) TERMINATED: 04/25/2007
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Mark G Peters (See above for address) TERMINATED: 01/11/1999
Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Peter M Koneazny (See above for address) TERMINATED: 02/13/2001
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
Rachel H Park (See above for address) TERMINATED: 04/25/2007
Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007
represented by
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 13 of 57

Darren C by his next friend Chris Velnetske

Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Mark G Peters (See above for address) TERMINATED: 01/11/1999
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 14 of 57

Plaintiff
Alissa S by her next friend Anne Marie Abell

Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Peter M Koneazny (See above for address) TERMINATED: 02/13/2001
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
Rachel H Park (See above for address) TERMINATED: 04/25/2007
Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007
represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007
Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996
Christopher T Dunn (See above for address) TERMINATED: 02/24/1998
Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001
Gregory R Merz (See above for address) TERMINATED: 04/15/2003
Heather Klaas (See above for address) TERMINATED: 08/30/2001
James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 15 of 57

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Mark G Peters (See above for address) TERMINATED: 01/11/1999

Martha Stone (See above for address) TERMINATED: 04/25/2007

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Peter M Koneazny (See above for address) TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Roxanne F by her next friend Michael Vruno

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 16 of 57

(See above for address) TERMINATED: 04/25/2007
Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996
Christopher T Dunn (See above for address) TERMINATED: 02/24/1998
Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001
Gregory R Merz (See above for address) TERMINATED: 04/15/2003
Heather Klaas (See above for address) TERMINATED: 08/30/2001
James K Langdon , II (See above for address) TERMINATED: 04/15/2003
Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007
Kellie M Nealon (See above for address) TERMINATED: 08/30/2001
Kenneth A Prine (See above for address) TERMINATED: 04/25/2007
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Mark G Peters (See above for address) TERMINATED: 01/11/1999
Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Peter M Koneazny (See above for address) Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 17 of 57

TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Jocelyn Z by his next friend Jane Moore

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 18 of 57

Plaintiff
Karen M by her next friend Joan Zawikowski, individually and on behalf of all others similarly situated

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Mark G Peters (See above for address) TERMINATED: 01/11/1999
Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Peter M Koneazny (See above for address) TERMINATED: 02/13/2001
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
Rachel H Park (See above for address) TERMINATED: 04/25/2007
Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007
represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007
Anne W Murdaugh (See above for address) TERMINATED: 06/26/1996
Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 19 of 57

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001
Gregory R Merz (See above for address) TERMINATED: 04/15/2003
Heather Klaas (See above for address) TERMINATED: 08/30/2001
James K Langdon , II (See above for address) TERMINATED: 04/15/2003
Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007
Kellie M Nealon (See above for address) TERMINATED: 08/30/2001
Kenneth A Prine (See above for address) TERMINATED: 04/25/2007
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Mark G Peters (See above for address) TERMINATED: 01/11/1999
Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Peter M Koneazny (See above for address) TERMINATED: 02/13/2001
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
Rachel H Park (See above for address) TERMINATED: 04/25/2007
Sarah B Hechtman Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 20 of 57

(See above for address) TERMINATED: 04/25/2007

Plaintiff
Patricia S by her next friend Oshiyemi Adelabu

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007

Kellie M Nealon (See above for address) TERMINATED: 08/30/2001

Kenneth A Prine (See above for address) TERMINATED: 04/25/2007

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Mark G Peters (See above for address)
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 21 of 57

TERMINATED: 01/11/1999

Martha Stone (See above for address) TERMINATED: 04/25/2007

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Peter M Koneazny (See above for address) TERMINATED: 02/13/2001

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Rachel H Park (See above for address) TERMINATED: 04/25/2007

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Derrick Z by his next friend Jane Moore

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Ann K Bloodhart (See above for address) TERMINATED: 04/25/2007

Christopher T Dunn (See above for address) TERMINATED: 02/24/1998

Cynthia J Kasak (See above for address) TERMINATED: 08/30/2001

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Heather Klaas (See above for address) TERMINATED: 08/30/2001

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 22 of 57

Plaintiff
Danny C by his friend Lisa Foley

Kacy F Kleinhans (See above for address) TERMINATED: 04/25/2007
Kellie M Nealon (See above for address) TERMINATED: 08/30/2001
Kenneth A Prine (See above for address) TERMINATED: 04/25/2007
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Mark G Peters (See above for address) TERMINATED: 01/11/1999
Martha Stone (See above for address) TERMINATED: 04/25/2007
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Peter M Koneazny (See above for address) TERMINATED: 02/13/2001
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
Rachel H Park (See above for address) TERMINATED: 04/25/2007
Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007
represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory R Merz (See above for address) TERMINATED: 04/15/2003

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 23 of 57

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Plaintiff
Frank M by his next friend Lisa Foley

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Plaintiff Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 24 of 57

Corey H by his next friend Deanna Weiss

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001

Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003

Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003

Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003

Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

Plaintiff
Julie R by her next friend Cynthia Lepkowski

represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Gregory R Merz (See above for address) TERMINATED: 04/15/2003

James K Langdon , II (See above for address) TERMINATED: 04/15/2003

Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 25 of 57

Plaintiff
Diana H by her next friend Danuta : Kurczewski, individually and on behalf of all others similarly situated

Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
represented by Eric E Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Robinson Lowry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory R Merz (See above for address) TERMINATED: 04/15/2003
James K Langdon , II (See above for address) TERMINATED: 04/15/2003
Jean F Holloway (See above for address) TERMINATED: 04/15/2003
Kristin Solveig Westgard (See above for address) TERMINATED: 08/30/2001
Lawrence A Moloney (See above for address) TERMINATED: 04/15/2003
Micabil Diaz Martinez (See above for address) TERMINATED: 04/15/2003
Quentin R Wittrock (See above for address) TERMINATED: 04/15/2003
Sarah B Hechtman (See above for address) TERMINATED: 04/25/2007

V. Defendant
Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 26 of 57

Governor State of Wisconsin Tony Evers in his official capacity as Governor of the State of Wisconsin

represented by Corey F Finkelmeyer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−7342 Fax: 608−267−8906 Email: finkelmeyercf@doj.state.wi.us TERMINATED: 05/25/2005 LEAD ATTORNEY

Mary E Burke Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−0323 Fax: 608−267−2223 Email: burkeme@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Woolsey Schlaefer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−0320 TERMINATED: 01/10/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul L Barnett Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−0320 TERMINATED: 05/25/2005 LEAD ATTORNEY

Peter C Anderson Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53702−7857 608−266−0320 TERMINATED: 01/10/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gerald Whitburn in his official capacity as Secretary of the Department of Health and Social Services of the State of Wisconsin TERMINATED: 09/30/1999

Defendant Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 27 of 57

F Thomas Ament in his official capacity as the County Executive of the County of Milwaukee TERMINATED: 01/30/1998
Defendant Thomas Brophy in his official capacity as Director of the Milwaukee County Department of Human Services TERMINATED: 01/30/1998
Defendant Joseph Leean in his official capacity as Secretary of the Dept of Health and Family Services of the State of Wisconsin TERMINATED: 04/09/2001
Defendant Wisconsin Department of Health and Family Services

represented by John F Jorgensen Milwaukee County Corporation Counsel 901 N 9th St − Rm 303 Milwaukee, WI 53233−1425 414−278−4087 Fax: 414−223−1249 Email: jjorgensen@milwcnty.com TERMINATED: 06/02/2005 LEAD ATTORNEY
represented by John F Jorgensen (See above for address) TERMINATED: 06/02/2005 LEAD ATTORNEY
represented by Corey F Finkelmeyer (See above for address) TERMINATED: 05/25/2005 LEAD ATTORNEY
Mary E Burke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Woolsey Schlaefer (See above for address) TERMINATED: 01/10/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul L Barnett (See above for address) TERMINATED: 05/25/2005 LEAD ATTORNEY
Peter C Anderson (See above for address) TERMINATED: 01/10/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/01/1993 06/01/1993 06/03/1993

# Docket Text
1 COMPLAINT (Summons(es) issued) (ers, )
2 CERTIFICATE OF INTEREST by plaintiffs (ers, )
3 LETTER from Law Clerk Terri Zeller to Counsel saying that if Plaintiffs want this Court to consider the injunction relief, a separate preliminary injunction motion must be filed. (ers, ) (Entered: 06/04/1993)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 28 of 57

06/22/1993
06/22/1993 07/01/1993 07/01/1993 07/02/1993
07/08/1993
07/14/1993 07/14/1993 07/20/1993 07/22/1993 07/22/1993 07/22/1993
07/22/1993 07/22/1993 07/26/1993 07/28/1993 07/28/1993
08/04/1993 08/16/1993
08/16/1993 08/20/1993 08/26/1993 08/27/1993 09/01/1993

4 ORDER by Senior Judge John W. Reynolds Granting Atty Jorgensen an extension of 20 days, until 7/12/93 to file & serve the answer of the Milwaukee County Defts to the Complaint (cc: all counsel) (ers, ) (Entered: 06/23/1993)
5 ORDER by Senior Judge John W. Reynolds − Granting the Stipulation filed on 6/18/93. See Stipulation for details. (cc: all counsel) (ers, ) (Entered: 06/23/1993)
6 MOTION by plaintiff to certify Class Action (ers, ) (Entered: 07/02/1993)
7 BRIEF by plaintiffs in support of motion to certify Class Action [6−1] w/ attachments (ers, ) (Entered: 07/02/1993)
8 LETTER from plaintiff by Atty Koneazny saying that the names of 2 of the plaintiffs who were identified in the Complaint were accidently omitted on the caption page. (ers, )
9 LETTER from Assistant Attorney General Mary Woolsey Schlaefer confirming that the State Defts request that their deadline to answer be extended to 7/22/93 is Granted. (ers, )
10 RESPONSE To Consent To Proceed before a U.S. Magistrate Judge by defendant F Thomas Ament, defendant Thomas Brophy (R) (ers, )
11 ANSWER by defendant F Thomas Ament, defendant Thomas Brophy to [1−1] (ers, )
12 MOTION & ORDER ENLARGING BRIEF LIMITS by Judge J. P. Stadtmueller for Judge Reynolds (cc: all counsel) (cad, ) (Entered: 07/22/1993)
13 MOTION by state defendants to dismiss (wied, )
14 BRIEF by state defendants in support of motion to dismiss [13−1] (wied, )
15 MOTION by state defendants for stay of proceedings on pltfs' motion for class certification pending decision of the state defendants' motion to dismiss complaint , in the alternative to extend time to respond to motion for class certification (wied, )
16 CERTIFICATE (wied, )
17 CERTIFICATE of service. (wied, )
18 RESPONSE To Consent To Proceed Before a US Magistrate Judge by defendant Tommy Thompson, defendant Gerald Whitburn (R) (ers, )
19 RESPONSE To Consent To Proceed Before a US Magisrate Judge by plaintiff (R) (ers, ) (Entered: 07/29/1993)
20 ORDER by Senior Judge John W. Reynolds DENYINGmotion for stay of proceedings on pltfs' motion for class certification pending decision of the state defendants' motion to dismiss complaint [15−1], GRANTING motion to extend time to respond to motion for class certification [15−2] On or before 8/16/93, Defts Thompson & Gerald Whitburn shall file & serve a response to Plaintiffs' Motion for Class certification (cc: all counsel) (ers, ) (Entered: 07/29/1993)
21 NOTICE of hearing ; Scheduling Conference Call set for 9/1/93 at 10:00 a.m. (cc: all counsel) (ers, )
22 LETTER from plaintiffs by Atty Christopher Dunn notifying the Court that the state Defts have agreed to grant the Plaintiffs an extension of 10 days until 8/26/93 to file their response. (ers, )
23 BRIEF by State defendants in opposition to Plaintiffs motion to certify Class Action [6−1] (ers, )
24 STATUS REPORT by plaintiffs (ers, ) (Entered: 08/23/1993)
25 BRIEF by plaintiff IN OPPOSITION to State Defts motion to dismiss [13−1] (ers, )
26 REPLY BRIEF by plaintiff in support of motion to certify Class Action [6−1] (ers, )
27 HEARING MINUTES: ; Discovery ddl set for 6/3/94 ; Motion filing ddl set for 6/10/94 ; Pretrial conference 8/30/94 at 2:00 p.m. ; Trial set for 9/13/94 at 10:00 a.m. ;

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 29 of 57

09/02/1993 09/09/1993 09/29/1993 01/18/1994
01/21/1994 01/27/1994 02/02/1994
02/04/1994 02/16/1994 02/16/1994 02/17/1994
02/25/1994 03/01/1994
03/11/1994 03/22/1994
04/07/1994 04/07/1994 04/08/1994 04/28/1994

Est 3 weeks. Status hearing held 9/1/93 (ers, ) (Entered: 09/02/1993)
28 ORDER Following Scheduling Conference by Senior Judge John W. Reynolds See above dates. (cc: all counsel) (ers, ) (Entered: 09/07/1993)
29 REPLY BRIEF by State Defendants in support of motion to dismiss [13−1] (ers, )
30 SUR REPLY BRIEF by plaintiffs to State Defts Reply Brief (ers, )
31 LETTER from plaintiff by Atty Dunn calling the Court to a recent Decision from the Seventh Circuit Court of Appeals that is relevant to the state Defendants pending motion to Dismiss w/ attached slip opinion which is in Judges File (ers, ) (Entered: 01/19/1994)
32 ATTORNEY APPEARANCE for plaintiff by Daniel S. Dorsky (ers, )
33 LETTER From Mary Schlaefer in response to Plaintiffs' 1/14/94 letter regarding the Seventh Circuit holding in Miller v Whitburn (ers, )
34 LETTER from plaintiff by Atty Dunn calling your attention to a recent decision from another District Court that deals w/ the enforceability of the Adoption Assistance & Child Welfare Act & thus is relevant to the State Defts' pending motion to Dismiss. (ers, ) (Entered: 02/03/1994)
35 MOTION by Plaintiff, County Defendants for order to Appoint the National Council on Crime & Delinquency as an expert (ers, ) (Entered: 02/07/1994)
36 MOTION by plaintiff to compel the Production of Documents (ers, )
37 BRIEF by plaintiff IN SUPPORT of motion to compel the Production of Documents [36−1] (ers, )
38 NOTICE of hearing on motion to compel the Production of Documents [36−1] 2:00 3/1/94, setting hearing on motion for order to Appoint the National Council on & Delinquency as an expert [35−1] 2:00 3/1/94 (cc: all counsel) (ers, ) (Entered: 02/18/1994)
39 BRIEF by State defendants IN OPPOSITION to Plaintiffs' & County Defts motion for order to Appoint the National Council on Crime & Delinquency as an expert [35−1] (ers, )
40 HEARING MINUTES: The Plaintiffs & County Defendants Joint Motion to appoint a rule 706 expert is denied, although the parties are free to agree on an expert. The county Defendants & Plaintiffs shall prepare a scheduling order re: the production of documents by the County Defts & shall file that draft order on or before 3/7/94. (ers, ) (Entered: 03/04/1994)
41 STIPULATION and ORDER by Senior Judge John W. Reynolds : That Plaintiffs and County Defendants enter into a Joint Stipulation to designate experts. (cc: all counsel) (ers, ) (Entered: 03/16/1994)
42 STIPULATION and ORDER by Senior Judge John W. Reynolds : That the terms of the Stipulation shall govern the completion of production of documents in response to the Plaintiffs 12/14/94 request for production of documents. (cc: all counsel) (ers, ) (Entered: 03/23/1994)
43 MOTION by plaintiff to amend the Scheduling Order (ers, )
44 BRIEF by plaintiff IN SUPPORT of motion to amend the Scheduling Order [43−1] (ers, )
45 LETTER from defendants respectfully requesting that the Court vacate the current scheduling order & hold further scheduling in abeyance until the Court has had an opportunity to rule on the pending motion to dismiss. (ers, ) (Entered: 04/11/1994)
46 ORDER by Senior Judge John W. Reynolds per Ms. Schlaefer's letter Vacating Scheduling Order of 9/2/93. ; Scheduling Conference reset for 5/19/94 at 10:00 a.m (cc: all counsel) (ers, ) (Entered: 05/02/1994)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 30 of 57

05/05/1994
05/11/1994 05/11/1994
05/25/1994 06/02/1994 06/06/1994 06/10/1994 06/14/1994 06/27/1994 07/07/1994 07/07/1994 11/10/1994 11/28/1994
01/04/1995 01/23/1995
02/08/1995 02/16/1995

47 DECISION AND ORDER: by Senior Judge John W. Reynolds ; Scheduling Conference CANCELLED The Court shall, sua sponte, order that the parties submit briefs on the issue of what effect, if any, these amendments have on governor Thompson & secretary Whitburn's (State Defts) motion to Dismiss. That the State Defts sshall file & serve a submission on the issue on or before 10 days from the date of this Order; that the Plaintiffs shall file & serve a responsive submission on or before 7 days from the date they are served w/ the State Defts' submission; & that the State Defts' submission; & that the State Defts shall reply on or before 4 days from the date they are served w/ the Plaintiffs responsive submission. (cc: all counsel) (ers, ) (Entered: 05/06/1994)
48 LETTER from State Defendants attorney Mary Woolsey Schlasfer requesting that the Court grant the state defts an extension till 5/25/94 to file their brief. (ers, ) (Entered: 05/12/1994)
49 ORDER by Senior Judge John W. Reynolds that the parties joint request for an extension is Granted. The state Defendants shall file their brief on or before 6/6/94. The State Defndants shall reply on or before 6/10/94. (cc: all counsel) (ers, ) (Entered: 05/12/1994)
50 SUPPLEMENTAL BRIEF FILED by STATE DEFENDANTS in support of their Motion to Dismiss. (ers, )
51 LETTER from plaintiff by Atty Anne Murdaugh saying that as of 5/31/94 she is withdrawing as counsel of record in this matter. (ers, )
52 RESPONSE by plaintiffs to State Defendants' Supplemental Brief in support of their motion to Dismiss (ers, ) (Entered: 06/07/1994)
53 SECOND REPLY by State defendants in Support of their Motion to Dismiss (ers, )
54 LETTER from plaintiffs by Atty Dunn calling the Court to recent decisions from 2 federal courts of appeals that bear upon the state defendants' pending motion to Dismiss (ers, )
55 LETTER from plaintiff by Atty Dunn asking the Court to take provisions into account in resolving the State Defts motion to Dismiss (ers, ) (Entered: 06/28/1994)
56 MOTION by plaintiff for order to permit Discovery against State Defts & For Scheduling Conference (ers, )
57 BRIEF by plaintiff IN SUPPORT of motion for order to permit Discovery against State Defts & For Scheduling Conference [56−1] (ers, )
58 LETTER from plaintiff by Atty Dunn requesting a pretrial conference. (ers, ) (Entered: 11/14/1994)
59 LETTER from defendant by Atty Schlaefer responding to Plaintiffs 11/9/94 letter regarding the effect of piblic Law 103−432 on the state defendants motion to dismiss & requesting that the court rule on Pltfs Rule 6.07 motion to permit the plaintiffs to proceed w/ discovery against the state defendants (ers, )
60 LETTER from plaintiffs' counsel re: certification of a class actiion (wied, ) (Entered: 01/05/1995)
61 NOTICE of hearing setting hearing on motion for order to permit Discovery against State Defts & For Scheduling Conference [56−1] 10:00 2/3/95, setting hearing on motion to dismiss [13−1] 10:00 2/3/95, setting hearing on motion to certify Class Action [6−1] 10:00 2/3/95 (cc: all counsel) (ers, ) (Entered: 01/24/1995)
62 LETTER from State Defendants by Atty Schlaefer requesting the Court grant the state Defts until 2/28/95 to file their answer (ers, )
63 ORDER by Senior Judge John W. Reynolds That the STATE DEFENDANTS's motion to dismiss is GRANTED IN PART & DENIED IN PART. That State Defendants motion to dismiss the Plaintiffs claim brought under the U.S. Constitution is DENIED. That the State Defendants Motion to dismiss the Plaintiffs claims brought under the balance of 42 U.S.C. 671 & 42 U.S.C. 627 is DENIED. That the State defendants Motion to Dismiss the Plaintiffs' claims brought under 42:U.S.C 671(a)(15)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 31 of 57

02/28/1995 03/02/1995
04/04/1995 04/04/1995 04/04/1995 04/10/1995 04/11/1995 04/11/1995 04/12/1995 04/12/1995
05/03/1995 05/05/1995

of the Adoption Assistance Act is GRANTED. That the State Defendants motion to dismiss the Plaintiffs claims under the Child Abuse Prevention act 42 U.S.C. 5106a is DENIED. That the State Defendants motions to Dismiss the Plaintiffs claims under the Rehabilitation Act & the Americans w/ Disabilities act are GRANTED. That the Plaintiffs motion to certify the Class is GRANTED & 2 subclasses shall be certified as follows: Children who are in foster care custody in Milwaukee County & who come into foster care custody in Milwakee County & Children who are not in foster care custody in Milwaukee county, but about whom the County Department of Human Services has received reports of abuse or neglect & Children who become the object of such reports. That Discovery shall commence in this case immediately, & the Plaintiffs shall disclose their expert witnesses on or before 7 days from the date of the Court's oral order. That a trial to the Court shall begin on 5/16/95 at 10:00 a.m. That a Final Pretrial Conference shall begin on 5/16/95 at 10:00 a.m. That a decision & Order shall be issued more fully explaining the Court's Orders contained herein. (cc: all counsel) (ers, ) (Entered: 02/17/1995)
64 ANSWER by defendant Tommy Thompson & Richard Lorang to [1−1] (ers, )
65 DECISION AND ORDER: by Senior Judge John W. Reynolds That it was Ordered on 2/3/95 & 2/16/95 that the State Defendants' motion to Dismiss was GRANTED IN PART & DENIED IN PART. That the State Defendants motion to Dismiss the constitutional claims against them was DENIED. That the State Defendants motion to Dismiss the Plaintiffs claims under 42 U.S.C was GRANTED as to 671(a)(15) & DENIED as to all other parts. The State Defendants motion to Dismiss the Plaintiffs claims under 42 U.S.C. 677 was GRANTED. The State Defendants' motion to Dismiss the Plaintiffs Claims under 42 U.S.C. 627 was DENIED. That the State Defendants motion to Dismiss the Plaintiffs claims under 42 U.S.C. 5106a(b) was DENIED. That the State Defendants motion to Dismiss the Plaintiffs claims under the Rehabilitation & the Disabilities Act was GRANTED as to the State Defendants. Also that the Plaintiffs motion to certify the class is GRANTED, & 2 Subclasses was to be certified as follows. (1) Children who are in Foster Care custody in Milwaukee County & who come into Foster Care in Milwaukee County & (2) Children who are not in Foster Care custody in Milwaukee County, but about whom the County Department of Human Services has received reports of abuse or neglect, & Children who become the object of such reports. (cc: all counsel) (ers, ) (Entered: 03/06/1995)
66 MOTION by State Defendants Tommy Thompson & Richard Lorang TO CONTINUE THE TRIAL w/ attachments (ers, )
67 AFFIDAVIT of Mary Woolsey Schlaefer re [66−1] (ers, )
68 AFFIDAVIT of Bruce A. Olsen (ers, )
69 BRIEF by plaintiff IN OPPOSITION to motion TO CONTINUE THE TRIAL [66−1] (ers, )
70 LETTER from defendant by Atty Schlaefer regarding 2 matters relating to the state defendants pending motion for continuance (ers, )
71 AFFIDAVIT of Peter C. Anderson (ers, )
72 HEARING MINUTES: GRANTING motion TO CONTINUE THE TRIAL & this Case is Bifurcated into a Liabilty Stage & a Remedy stage [66−1] ; The Liability Trial set 10/24/95 at 10:00 a.m. (ers, ) (Entered: 04/13/1995)
73 ORDER by Senior Judge John W. Reynolds. That Defts motion to Continue the trial is Granted & this case is BIFURCATED into a liability stage & a remedy Stage ; Discovery ddl set 9/30/95 ; Motion filing ddl set 7/14/95 ; Pretrial conference set 10/6/95 at 2:00 p.m. court Trial on 10/24/95 at 10:00 a.m. on the issue of liability. Est 3 weeks. (cc: all counsel) (ers, ) (Entered: 04/13/1995)
74 STIPULATION and ORDER GRANTING To Amend the Existing Scheduling Order of 4/12/95 by Senior Judge John W. Reynolds : Trial date remains the same. (cc: all counsel) (ers, ) (Entered: 05/05/1995)
75 CERTIFICATE Of Service (ers, )

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 32 of 57

06/12/1995
07/03/1995 07/07/1995 07/14/1995 07/14/1995
07/28/1995 07/31/1995 07/31/1995 07/31/1995 07/31/1995 07/31/1995 07/31/1995 08/02/1995 08/14/1995
08/23/1995 08/24/1995 08/24/1995 08/28/1995 08/28/1995 08/29/1995
09/25/1995 09/25/1995
10/11/1995

76 ORDER by Senior Judge John W. Reynolds That this case shall be Returned to the Clerk of Court for Reassignment to another Article 111 Judge Case RANDOMLY REASSIGNED to Judge Rudolph T. Randa (cc: all counsel) (ers, ) (Entered: 06/13/1995)
77 MOTION by Tommy Thompson to extend to file expert witness list (bjp, ) (Entered: 07/06/1995)
MARGINAL ORDER by Judge Rudolph T. Randa granting motion to extend to file expert witness list [77−1] (cc: all counsel) (bjp, ) (Entered: 07/13/1995)
78 MOTION by Gerald Whitburn, Tommy Thompson to extend time to file dispositive motions (wied, )
MARGINAL ORDER by Judge Rudolph T. Randa granting motion to extend time to file dispositive motions [78−1] ; Motion filing ddl set for 7/28/95 (cc: all counsel) (wied, )
85 REQUEST by Tommy Thompson for extension of time to file dispositive motions with ORDER extending time to 7/28/95 (bjp, ) (Entered: 08/02/1995)
79 MOTION by Tommy Thompson for partial summary judgment (bjp, ) (Entered: 08/01/1995)
80 BRIEF in support of motion for partial summary judgment [79−1] (bjp, ) (Entered: 08/01/1995)
81 PROPOSED ff submitted by Tommy Thompson, State defendants (bjp, ) (Entered: 08/01/1995)
82 AFFIDAVIT/VERIFICATION of Linda Hisgen (bjp, ) (Entered: 08/01/1995)
83 AFFIDAVIT/VERIFICATION of William Fiss (bjp, ) (Entered: 08/01/1995)
84 AFFIDAVIT/VERIFICATION of Mary Woolsey Schlaefer (bjp, ) (Entered: 08/01/1995)
86 REQUEST for amendment of scheduling order with attached ORDER granting request (bjp, ) (Entered: 08/11/1995)
87 ORDER by Judge Rudolph T. Randa. IT IS ORDERED, pursuant to Fed. R. Civ. P. 25(d)(1), that Joseph Leean be, and hereby is, substituted for Richard Lorang, former Acting Secretary of the Wisconsin Department of Health and Social Services, as a defendant in this action. (cc: all counsel) (wied, ) (Entered: 08/15/1995)
88 STATUS REPORT by Christopher Dunn (bjp, )
89 HEARING MINUTES: ; Discovery ddl 10/31/95 ; Pretrial conference 11/13/95 ; Trial 11/27/95 ; Status hearing held 8/24/95 (bjp, ) (Entered: 08/25/1995)
90 ORDER following sched. conference, see hrgmin for deadlines by Judge Rudolph T. Randa (cc: all counsel) (bjp, ) (Entered: 08/25/1995)
91 UNOPPOSED REQUEST by plaintiff for holding briefing in abeyance (bjp, )
92 BRIEF by plaintiff in support of holding briefing in abeyance (bjp, )
93 ORDER that the deadline for filing of opposition brief to State Defts' motion for partial sumjgmm is extended to 9/30/95 by Judge Rudolph T. Randa (cc: all counsel) (bjp, ) (Entered: 09/01/1995)
94 MOTION by plaintiff Jeanine B for order to hold in further abeyance consideration of the state defts' motion for partial summary judgment (bet, ) Modified on 09/29/1995
95 BRIEF by plaintiffs in support of motion for order to hold in further abeyance consideration of the state defts' motion for partial summary judgment [94−1] (bdr, ) (Entered: 09/29/1995)
96 MOTION by plaintiffs for order to hold in further abeyance consideration of the state defendants' motion for partial summary judgment (bet, )

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 33 of 57

10/11/1995 10/11/1995

97 BRIEF by plaintiffs in support of motion for order to hold in further abeyance consideration of the state defendants' motion for partial summary judgment [96−1] (bet, )
98 CERTIFICATE OF SERVICE by plaintiffs (bet, )

10/11/1995

99 ORDER by Judge Rudolph T. Randa granting motion for order to hold in further abeyance consideration of the state defendants' motion for partial summary judgment [96−1], finding the motion for order to hold in further abeyance consideration of the state defts' motion for partial summary judgment [94−1] moot. (cc: all counsel) (bet, ) (Entered: 10/13/1995)

10/23/1995 100 BRIEF by plaintiffs in opposition to motion for partial summary judgment [79−1] (bet, ) (Entered: 10/24/1995)

10/23/1995 10/23/1995 11/07/1995
11/08/1995

101 PROPOSED Findings of Fact submitted by plaintiffs (bet, ) (Entered: 10/24/1995)
102 CERTIFICATE OF SERVICE by plaintiffs (bet, ) (Entered: 10/24/1995)
103 MOTION by plaintiffs and defendants for continuance and for order to hold further briefing in abeyance (bet, ) (Entered: 11/08/1995)
104 ORDER by Judge Rudolph T. Randa granting motion for continuance [103−1], granting motion for order to hold further briefing in abeyance [103−2] Pretrial conference and trial dates to be rescheduled during status conference call on 11/13/95 at 2:00 (cc: all counsel) (bet, ) (Entered: 11/09/1995)

11/13/1995 105 HEARING MINUTES: defendants' reply brief on summary judgment motion due 2/1/96; Pretrial conference 2/23/96 at 2:00 ; Trial 3/25/96 at 9:00 ; Status hearing held 11/13/95 (bet, ) (Entered: 11/14/1995)

11/13/1995 12/26/1995 12/26/1995 12/29/1995
02/02/1996

106 SCHEDULING ORDER Judge Rudolph T. Randa; see Hearing Minutes for schedules (cc: all counsel) (bet, ) (Entered: 11/14/1995)
107 MOTION by plaintiffs to extend discovery through and including 1/26/96 (bet, )
108 CERTIFICATE of SERVICE by plaintiffs (bet, )
MARGINAL ORDER by Judge Rudolph T. Randa granting motion to extend discovery through and including 1/26/96 [107−1] (cc: all counsel) (vlh, ) (Entered: 01/03/1996)
109 REPLY by defendant Tommy Thompson, defendant Joseph Leean to Plaintiffs' response to proposed findings of fact and conclusions of law in support of motion for partial summary judgment (bet, )

02/02/1996 110 REPLY BRIEF by defendant Tommy Thompson, defendant Joseph Leean in support of motion for partial summary judgment [79−1] (bet, )

02/02/1996 02/02/1996 02/20/1996
02/20/1996
02/20/1996

111 EXCERPTS FROM TRANSCRIPT OF DEPOSITION of Judy Meltzer taken on the following date: 8/7/95 (pp. 28, 29, 30, 72, 112, 122, 123) (bet, )
112 CERTIFICATE OF SERVICE by defendant Tommy Thompson, defendant Joseph Leean (bet, )
113 ATTORNEY APPEARANCE for plaintiff Derrick Z, plaintiff Patricia S, plaintiff Karen M, plaintiff Jocelyn Z, plaintiff Roxanne F, plaintiff Alissa S, plaintiff Darren C, plaintiff Alan A, plaintiff Mindy D, plaintiff James B, plaintiff Carolyn D, plaintiff Douglas R, plaintiff Maurice R, plaintiff Aline H, plaintiff Jeanine B by Martha Stone with attached certificate of service (bet, )
114 PRETRIAL REPORT by plaintiff Derrick Z, plaintiff Patricia S, plaintiff Karen M, plaintiff Jocelyn Z, plaintiff Roxanne F, plaintiff Alissa S, plaintiff Darren C, plaintiff Alan A, plaintiff Mindy D, plaintiff James B, plaintiff Carolyn D, plaintiff Douglas R, plaintiff Maurice R, plaintiff Aline H, plaintiff Jeanine B with attached certificate of service (bet, )
115 PROPOSED and STIPULATED Findings of Fact and Conclusions of Law submitted by plaintiff Derrick Z, plaintiff Patricia S, plaintiff Karen M, plaintiff Jocelyn Z, plaintiff Roxanne F, plaintiff Alissa S, plaintiff C, plaintiff Alan A, plaintiff Mindy D,

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 34 of 57

02/20/1996
02/20/1996 02/20/1996 02/21/1996 02/22/1996 02/26/1996
03/07/1996 03/21/1996 04/11/1996 04/11/1996 04/17/1996 04/19/1996
05/13/1996 06/05/1996
06/18/1996 06/18/1996 06/18/1996

plaintiff James B, plaintiff Carolyn D, plaintiff Douglas R, plaintiff Maurice R, plaintiff Aline H, plaintiff Jeanine B (Volume 1 of 2) (bet, )
116 PROPOSED and STIPULATED Findings of Fact and Conclusions of Law submitted by plaintiff Derrick Z, plaintiff Patricia S, plaintiff Karen M, plaintiff Jocelyn Z, plaintiff Roxanne F, plaintiff Alissa S, plaintiff C, plaintiff Alan A, plaintiff Mindy D, plaintiff James B, plaintiff Carolyn D, plaintiff Douglas R, plaintiff Maurice R, plaintiff Aline H, plaintiff Jeanine B (Volume 2 of 2) (bet, )
117 PRETRIAL REPORT by defendant Tommy Thompson, defendant Joseph Leean (bet, ) (Entered: 02/21/1996)
118 CERTIFICATE OF SERVICE by defendant Tommy Thompson, defendant Joseph Leean (bet, ) (Entered: 02/21/1996)
119 PRETRIAL REPORT by defendant Thomas Brophy, defendant F Thomas Ament (bet, ) (Entered: 02/22/1996)
120 DECISION AND ORDER: by Judge Rudolph T. Randa denying motion for partial summary judgment [79−1] Final pretrial conference and court trial are adjourned (cc: all counsel) (bet, ) (Entered: 02/23/1996)
121 ATTORNEY APPEARANCE for plaintiff Derrick Z, plaintiff Patricia S, plaintiff Karen M, plaintiff Jocelyn Z, plaintiff Roxanne F, plaintiff Alissa S, plaintiff Darren C, plaintiff Alan A, plaintiff Mindy D, plaintiff James B, plaintiff Carolyn D, plaintiff Douglas R, plaintiff Maurice R, plaintiff Aline H, plaintiff Jeanine B by Mark G. Peters with attached certificate of service (bet, ) Modified on 02/27/1996 (Entered: 02/27/1996)
122 LETTER from plaintiffs' atty Martha Stone, Children's Rights, Inc., re: request to schedule status conference (bet, ) (Entered: 03/08/1996)
123 LETTER from Asst AG Mary W. Schlaefer re: Senate Bill 615 with attachments (bet, )
124 LETTER from plaintiffs' Atty Martha Stone re: request for status conference (bet, )
124 NOTICE of change of address by plaintiffs (bet, )
125 LETTER from defendant Tommy Thompson's Atty Mary Woolsey Schlaefer re: request for status conference (bet, )
126 ORDER by Judge Rudolph T. Randa concerning parties' joint request for a status conference to discuss how best to proceed given the pending proposal for State takeover of Milw County's child welfare system. In light of recent developments, the Court sees little need for a status conference at this time. The Court will await the Governor's decision before deciding how to proceed. The State shall notify the Court of that decision in writing as soon as final action is taken on the bill. (cc: all counsel) (bet, ) (Entered: 04/22/1996)
127 LETTER (5/10/96) from defendant Tommy Thompson Atty Mary Woolsey Schlaefer re: passage of Senate Bill 615 (bet, )
128 ORDER by Judge Rudolph T. Randa: Parties shall submit simultaneous briefs setting forth their respective positions on 7/8/96. Parties shall submit simultaneous reply briefs on 7/23/96. Briefs may discuss all aspects of the issue which any party deems relevant including, inter alia, whether the takeover law renders the case moot as to any or all defendants, whether it provides a basis for summary judgment in favor of any or all parties, and what, if any, interim relief the law provides before the State actually takes over in 1998 and how, if at all, such relief affects the liability and remedial aspects of the case. (cc: all counsel) (bet, ) (Entered: 06/07/1996)
129 NOTICE OF MOTION and MOTION by defendant Tommy Thompson, defendant Joseph Leean for extension of time for parties to file briefs (bet, )
130 AFFIDAVIT of Peter C. Anderson (bet, )
131 AFFIDAVIT of Mary Woolsey Schlaefer (bet, )

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 35 of 57

06/18/1996 132 AFFIDAVIT of Bruce A. Olsen (bet, )

06/18/1996 133 CERTIFICATE OF SERVICE by defendant Tommy Thompson, defendant Joseph Leean (bet, )

06/25/1996 134 BRIEF by plaintiffs in opposition to motion for extension of time for parties to file briefs [129−1] with attached certificate of service (bet, )

07/03/1996 135 ORDER by Senior Judge Myron L. Gordon granting motion for extension of time for parties to file briefs [129−1] Parties' initial briefs shall be filed on 8/15/96. Parties' reply briefs shall be filed on 8/30/96. (cc: all counsel) (bet, )

08/14/1996 136 RESPONSE by plaintiffs to Court's Order of 6/5/96 regarding impact of Wisconsin Act 303 with attached exhibits A thru GG (bet, )

08/14/1996 137 CERTIFICATE OF SERVICE by plaintiffs (bet, )

08/15/1996 138 LETTER (8/15/96) from defendant F Thomas Ament Atty John Jorgensen re: concur in request for relief and arguments in support thereof set forth by State of WI defendants (bet, ) (Entered: 08/16/1996)

08/15/1996 139 INITIAL BRIEF FILED by State defendants regarding the planned state takeover of the Milw Cty Child Welfare System (unsigned) (bet, ) Modified on 08/16/1996 (Entered: 08/16/1996)

08/15/1996 140 SECOND AFFIDAVIT of Mary Woolsey Schlaefer with attached exhibits A thru D (bet, ) (Entered: 08/16/1996)

08/15/1996 141 AFFIDAVIT of Sherwood Seigel with attached exhibit A (bet, ) (Entered: 08/16/1996)

08/15/1996 142 AFFIDAVIT of Therese Roe Lund with attached exhibits A thru F (bet, ) (Entered: 08/16/1996)

08/15/1996 143 CERTIFICATE OF SERVICE by State defendants (bet, ) (Entered: 08/16/1996)

08/29/1996 144 MOTION by State defendants for extension of time in which to file reply brief (bet, )

08/29/1996 145 CERTIFICATE OF SERVICE by State defendants (bet, )

08/30/1996

MARGINAL ORDER by Judge Rudolph T. Randa granting motion for extension of time in which to file reply brief [144−1] (cc: all counsel) (wied, ) (Entered: 09/03/1996)

09/04/1996 146 MOTION by State defendants for five business day extension of time in which to file their reply brief regarding the state takeover of the Milw Cty child welfare system (bet, )

09/04/1996 147 CERTIFICATE OF SERVICE by State defendants (bet, )

09/05/1996

MARGINAL ORDER by Judge Rudolph T. Randa granting motion for five business day extension of time in which to file their reply brief regarding the state takeover of the Milw Cty child welfare system [146−1] (cc: all counsel) (bet, ) (Entered: 09/06/1996)

09/11/1996 148 SECOND AFFIDAVIT of Therese Roe Lund (vlh, )

09/11/1996 149 AFFIDAVIT of Susan N. Dreyfus (vlh, )

09/11/1996 150 THIRD AFFIDAVIT of Mary Woolsey Schlaefer; exhibit attached (vlh, )

09/11/1996 151 REPLY BRIEF FILED by state defendants regarding the planned state takeover of the Milw. County child welfare system; exhibit attached (vlh, )

09/11/1996 152 CERTIFICATE of service by defendants (vlh, )

09/11/1996 153 RESPONSE by plaintiff to 6/5/96 Order [128−1] regarding impact of Wisconsin Act 303 (vlh, ) (Entered: 09/12/1996)

09/11/1996 154 CERTIFICATE of service by plaintiffs (vlh, ) (Entered: 09/12/1996)

02/04/1997 155 MOTION by plaintiffs for preliminary injunction with annexed affidavits. (wied, ) Modified on 02/10/1997

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 36 of 57

02/04/1997 02/04/1997 02/06/1997 02/10/1997 02/11/1997 02/11/1997 02/12/1997
02/13/1997
02/19/1997 02/19/1997 02/28/1997
03/03/1997
03/10/1997 03/10/1997 03/10/1997 03/10/1997 03/10/1997

156 BRIEF by plaintiffs in support of motion for preliminary injunction [155−1]. (wied, ) Modified on 02/10/1997
157 MOTION by plaintiffs for order to Expedite Briefing Schedule and Hearing . (wied, ) Modified on 02/10/1997
158 LETTER (2/5/97) from defendant Milwaukee County Atty John Jorgensen re: objection to proposed order to expedite briefing (bet, )
159 MOTION by state defendants for order to hold briefing on plaintiffs' motion for preliminary injunction in abeyance or, in the alternative, for an extension of the time permitted under Local Rule 6.01(b) for the defendants to respond (bet, )
160 CERTIFICATE OF SERVICE by state defendants (bet, )
161 ORIGINAL Document Re: [159−1] (bet, )
162 BRIEF by plaintiffs in opposition to motion for order to hold briefing on plaintiffs' motion for preliminary injunction abeyance or, in the alternative, for an extension of the time permitted under Local Rule 6.01(b) for the defendants to respond [159−1] with certificate of service (bet, )
163 DECISION AND ORDER: by Judge Rudolph T. Randa denying motion for order to hold briefing on plaintiffs' motion for preliminary injunction in abeyance to the extent that a briefing schedule has been established which includes the time used by the Court to decide the issue of justiciability; granting to the extent it is accommodated in this opinion by the time frame established for an extension of the time permitted under Local Rule 6.01(b) for the defendants to respond [159−1] − defendants shall have their responses filed by 3/7/97; denying plaintiffs' motion for order to Expedite Briefing Schedule and Hearing [157−1] as outlined in this opinion; plaintiffs shall provide to defendants a list of the names of the subjects of the affidavits submitted with plaintiffs' motions within 7 days of this order. (cc: all counsel) (bet, ) (Entered: 02/14/1997)
164 MOTION by plaintiffs for reconsideration with exhibit A and certificate of service (bet, ) Modified on 02/19/1997
165 BRIEF by plaintiffs in support of motion for reconsideration [164−1] with certificate of service (bet, )
166 LETTER (2/28/97) from Judge R.T. Randa to counsel re: Court's decision on the justiciability issue will be issued on 3/3/97. Should the case survive the Court's decision, briefing on the pending motion for injunctive relief shall be extended − defendants' responses ddl 3/10/97. (bet, ) (Entered: 03/03/1997)
167 DECISION AND ORDER by Judge Rudolph T. Randa: (1) Partial summary judgment is ordered in favor of the State defts and against pltfs vis−a−vis pltfs' constitutional claims, which are dismissed as against State defts only and (2) Pltfs' remaining claims may go forward. Scheduling conference call set for 1:30 3/11/97 . In order to make the conference call manageable, the pltfs, the State defts, and County defts shall each designate one representative to participate in the conference, and that individual should be prepared to set dates for trial and an injunction hearing that will be binding on all counsel involved. The parties should inform the Court as to who those individuals will be prior to the conference. (cc: all counsel) (bet, ) (Entered: 03/04/1997)
168 BRIEF by State defendants in opposition to motion for preliminary injunction [155−1] with appendix (ORIGINAL ONLY FILED − IN CHAMBERS) (bet, ) Modified on 03/10/1997
169 THIRD AFFIDAVIT of Therese Roe Lund with exhibit A (ORIGINAL ONLY FILED − IN CHAMBERS) (bet, ) Modified on 03/10/1997
170 AFFIDAVIT of Mary S. Dibble with exhibit A (ORIGINAL ONLY FILED − IN CHAMBERS) (bet, )
171 AFFIDAVIT of Robin Lessie with exhibits A & B (ORIGINAL ONLY FILED − IN CHAMBERS) (bet, )
172 CERTIFICATE OF SERVICE by State defendants (ORIGINAL ONLY FILED − IN CHAMBERS) (bet, )

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 37 of 57

03/10/1997 03/11/1997
03/17/1997 03/20/1997 03/21/1997 03/24/1997 04/11/1997 04/16/1997 04/23/1997
04/23/1997 04/23/1997 04/23/1997 04/24/1997 04/24/1997 04/25/1997 04/30/1997 04/30/1997 05/01/1997 05/02/1997

173 BRIEF by County defendants in opposition to motion for preliminary injunction [155−1] with exhibits 1 & 2 (ORIGINAL ONLY FILED − IN CHAMBERS) (bet, ) (Entered: 03/11/1997)
174 HEARING MINUTES: Court informs parties motion for reconsideration [164−1] is denied. Parties to submit proposed Order to the Court re: confidentiality of children. Re: motion for preliminary injunction [155−1] − Pltfs shall file reply brief to motion by 3/24/97. Court will schedule hearing, if any, on motion for injunctive relief once reply brief and Order are submitted. Defts shall file response to pltfs request for updated discovery by 3/17/97. Pltfs shall file reply by 3/19/97. Scheduling conference call held 3/11/97 (bet, ) (Entered: 03/12/1997)
175 RESPONSE to pltfs' request for updated discovery by State defendants with certificate of service (bet, )
176 REPLY BRIEF by plaintiffs in support of motion for preliminary injunction [155−1] with additional exhibits V thru Y (bound separately) in further support of motion; certificate of service attached (bet, )
177 LETTER (3/11/97) from County defendants Atty John Jorgensen with original Exhibit 1 from brief [173−1] (bet, ) (Entered: 03/24/1997)
178 LETTER (3/19/97) from plaintiff Atty Mark G. Peters re: reply to defts re: pltfs' requests for updated discovery with certificate of service (bet, )
179 FAX LETTER (4/11/97) from plaintiff Atty Mark G. Peters re: reiterate request for hearing on pltfs' motion for preliminary injunction (bet, ) (Entered: 04/14/1997)
180 ORIGINAL Document Re: [179−1] (bet, ) (Entered: 04/17/1997)
181 Notice of appeal by plaintiffs from USDC decision to adjourn a hearing on plaintiff's pending motion for a preliminary injunction dated 1/31/97, & from the district court's refusal to consider that motion, which constitutes an effective denial of such motion (cc: all counsel) (vlh, ) (Entered: 04/24/1997)
182 DOCKETING STATEMENT by plaintiffs (cc: all counsel) (vlh, ) (Entered: 04/24/1997)
Appeal fee paid by plaintiffs re: [181−1] in the amount of $105.00 (Receipt # 87714) (vlh, ) (Entered: 04/24/1997)
183 CERTIFICATE by plaintiffs pursuant to Fed. R. App. P. 10(b) that no transcript is needed (vlh, ) (Entered: 04/24/1997)
SHORT RECORD Transmitted to USCA Re: [181−1] (cc: all counsel) (vlh, )
184 ORDER by Judge Rudolph T. Randa denying motion for reconsideration [164−1] and outlining steps governing confidentiality of the records. (cc: all counsel) (bet, ) (Entered: 04/28/1997)
185 LETTER dated 4/24/97 from Asst. A.G. Mary Woolsey Schlaefer to Hon. Rudolph T. Randa requesting entry of proposed protective order & date for hrg on pltfs' motion for preliminary injunction (vlh, ) (Entered: 04/28/1997)
Appeal No. 97−1982 received from USCA re: plaintiffs' 4/23/97 notice of appeal (vlh, ) (Entered: 05/01/1997)
186 DECISION AND ORDER by Judge Rudolph T. Randa: Pltfs' motion for reconsideration is denied and the Court's 4/24/97 Order remains in effect. (cc: all counsel) (bet, ) (Entered: 05/02/1997)
188 LETTER dated 4/30/97 from Asst. A.G. Peter C. Anderson in response to plaintiff's 4/29/97 request that the court rescind entry of 424/97 Order (vlh, ) (Entered: 05/08/1997)
189 LETTER dated 4/30/97 from Principal Asst. Corp. Counsel John Jorgensen concurring with the position adopted by counsel for the State defendants that there is no sound legal reason for the court to rescind its prior order. (vlh, ) (Entered: 05/08/1997)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 38 of 57

05/05/1997 05/06/1997 05/12/1997 05/15/1997 05/19/1997 05/21/1997 05/27/1997 06/04/1997 06/09/1997
06/16/1997 07/07/1997 07/07/1997 07/07/1997 07/21/1997 07/21/1997 10/22/1997 01/30/1998
02/19/1998 02/24/1998

187 LETTER (4/29/97) from pltf Atty Mark G. Peters re: request Court rescind 4/24/97 Order on grounds Court lacked jurisdiction (bet, )
190 Designation of record on appeal by plaintiffs to include item numbers 134, 136, 153, 155, 156, 157, 162, 164, 165, 168, 173, 174, 176, 178, 179, & 181 (vlh, ) (Entered: 05/08/1997)
191 LETTER (5/9/97) from deft Tommy Thompson Atty Peter C. Anderson re: pltfs' motion to stay filed in Court of Appeals with attached copy of motion (bet, )
Appeal record prepared. (vlh, )
193 MANDATE/CERTIFIED COPY from USCA re: USCA No. 97−1982 dismissing the appeal [181−1] due to lack of appellate jurisdiction & denying all motion filed in this appeal as moot (vlh, ) (Entered: 05/22/1997)
192 LETTER (5/20/97) from deft Atty Mary Woolsey Schlaefer as supplement to state defts' response to pltfs' motion for preliminary injunction (bet, )
194 LETTER RESPONSE (5/20/97) from pltf Atty Mark G. Peters re: State defts' letter of 5/20/97 (bet, ) (Entered: 05/28/1997)
195 LETTER (6/3/97) from defts Thomas Brophy, F Thomas Ament Atty John Jorgensen re: response to enforceability of CAPTA and Supreme Court decision Blessing v. Freestone (bet, ) (Entered: 06/05/1997)
196 DECISION AND ORDER by Judge Rudolph T. Randa: (1) Denying motion for preliminary injunction [155−1]. Defts' motion for reconsideration of Judge Reynolds' prior ruling on the private enforceability of CAPTA is granted, and pltfs' CAPTA claims are dismissed. (3) The parties shall submit simultaneous briefs regarding whether the Blessing decision warrants reconsideration of Judge Reynolds' prior ruling on the private enforceability of the AACWA on or before 7/7/97. The parties shall submit simultaneous reply briefs on or before 7/21/97. (cc: all counsel) (bet, ) (Entered: 06/10/1997)
197 LETTER (6/11/97) from pltf Atty Rose E. Firestein re: response to county defts letter [195−1] (bet, ) (Entered: 06/17/1997)
198 MEMORANDUM OF LAW FILED by plaintiffs in response to the Distict Court's Order for additional briefing on the enforceability of the adoption assistance and child welfare act with certificate of service (bet, )
199 EXHIBITS to Plaintiffs' Memorandum of Law in response to the District Court's Order for additional briefing on the enforceability of the adoption assistance and child welfare act filed by plaintiffs (bet, )
200 INITIAL BRIEF FILED by State defendants regarding reconsideration of the private enforceability of the adoption assistance and child welfare act (bet, )
201 BRIEF FILED by plaintiffs in reply to the State defts' brief on the enforceability of the Adoption Assistance and Child Welfare Act of 1980 with certificate of service (bet, )
202 REPLY BRIEF FILED by State defendants regarding the private enforceability of the Adoption Assistance and Child Welfare Act (bet, ) (Entered: 07/22/1997)
203 LETTER (10/21/97) from State defendants Atty Mary Woolsey Schlaefer re: to inform the court that Gov Thompson signed 1997 Assembly Bill 100 into law on 10/11/97 (bet, )
204 DECISION AND ORDER by Judge Rudolph T. Randa: (1) Court's sua sponte motion to reconsider is granted−in−part and denied−in−part, consistent with the foregoing opinion; (2) Pltfs' remaining claims against the County are dismissed as moot and (3) status conference call set for 10:30 2/24/98 (cc: all counsel) (bet, )
205 LETTER (2/18/98) from pltf Atty Rachel H. Park re: request for extension of discovery (bet, )
206 HEARING MINUTES: status/scheduling conference call held 2/24/98 . Conference conducted, no dates set. (bet, )

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 39 of 57

03/03/1998 207 MOTION by plaintiff for permission to conduct discovery on the case plan claim discussed in this court's 1/30/98 Order. (wied, )

03/03/1998 208 MEMORANDUM OF LAW by plaintiff in support of motion for permission to conduct discovery on the case plan claim [207−1] discussed in this court's 1/30/98 Order. (wied, )

03/03/1998 209 CERTIFICATE of service by plaintiffs (wied, )

03/09/1998 210 ORDER by Judge Rudolph T. Randa that deft file a response to pltf's Rule 6.07 motion for permission to conduct discovery by 3/16/98 (cc: all counsel) (vlh, )

03/16/1998 211 BRIEF by State defendants in opposition to motion for permission to conduct discovery on the case plan claim [207−1] with certificate of service (bet, )

03/20/1998 212 REPLY BRIEF by plaintiffs in support of motion for permission to conduct discovery on the case plan claim discussed in this Court's 1/30/98 order [207−1] with certificate of service (bet, )

03/30/1998 213 LETTER (3/27/98) from State defts' Atty Mary Woolsey Schlaefer re: request for all correspondence from the court be addressed to her as lead counsel (bet, )

04/06/1998

214 DECISION AND ORDER by Judge Rudolph T. Randa: (1) Granting motion for permission to conduct discovery on the case plan claim [207−1]. (2) The parties shall have until 7/15/98 to conduct discovery on the case plan and case review system issues under the AACWA. (3) The parties shall have until 10/13/98 to file additional dispositive motions in this matter. Discovery ddl set for 7/15/98; motion filing ddl set for 10/13/98 (cc: all counsel) (bet, ) (Entered: 04/07/1998)

08/28/1998 215 RULE 6.07 MOTION by plaintiffs to compel production or inspection of certain case records with exhibits A thru G (bet, )

08/28/1998 216 BRIEF by plaintiffs in support of motion to compel production or inspection of certain case records [215−1] (bet, )

08/28/1998 217 CERTIFICATION OF GOOD FAITH by plaintiffs (bet, )

08/28/1998 218 CERTIFICATE OF SERVICE by plaintiffs (bet, )

08/28/1998

219 ORDER by Judge Rudolph T. Randa re: motion to compel production or inspection of certain case records [215−1]. Deft shall file response, not to exceed 5 pages, on or before 9/4/98. Pltf shall file a reply, if any, not to exceed 3 pages, on or before 9/9/98. A decision shall issue shortly thereafter. (cc: all counsel) (bet, ) (Entered: 08/31/1998)

09/01/1998 220 STIPULATION REGARDING ENTRY OF A PROTECTIVE ORDER by plaintiffs and state defendants (bet, )

09/04/1998 221 Memorandum by defendant Tommy Thompson in opposition to motion to compel production or inspection of certain case records [215−1] (wied, )

09/04/1998 222 AFFIDAVIT of Mary Woolsey Schlaefer (wied, )

09/04/1998 223 CERTIFICATE of Service by defendant Tommy Thompson (wied, )

09/16/1998

224 STIPULATION and ORDER by Judge Rudolph T. Randa: granting motion to compel production or inspection of certain case records [215−1] ; motion filing ddl will be extended to 90 days after pltfs' production of the materials described in par 2 to State defts (cc: all counsel) (bet, ) (Entered: 09/17/1998)

12/04/1998 225 MOTION by deft Tommy Thompson, deft Joseph Leean for order compelling disclosure (bet, )

12/04/1998 226 BRIEF by defendant Tommy Thompson, defendant Joseph Leean in support of motion compelling disclosure [225−1] (bet, )

12/04/1998 227 AFFIDAVIT of Peter C Anderson in support of motion to compel disclosure (bet, )

12/04/1998 228 CERTIFICATE OF SERVICE by deft Tommy Thompson, deft Joseph Leean (bet, )

12/24/1998 229 MOTION by plaintiffs to strike State defts' motion to compel and response in opposition to thereto (bet, )

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 40 of 57

12/24/1998 12/24/1998 12/24/1998 01/11/1999 01/11/1999 01/11/1999
01/13/1999 01/13/1999 01/13/1999 04/28/1999
04/28/1999
04/28/1999 04/28/1999 04/28/1999 04/28/1999 05/05/1999 05/05/1999 05/05/1999
05/06/1999 05/17/1999
05/17/1999
05/17/1999

230 BRIEF by plaintiffs in support of motion to strike State defts' motion to compel [229−1]......... (bet, )
230 ....... and BRIEF by plaintiffs in opposition to motion compelling disclosure [225−1] with certificate of service (bet, )
231 EXHIBITS to plaintiffs' motion to strike defts' motion to compel and response in opposition to thereto (exhibits A thru G) (bet, )
232 MOTION by plaintiffs to withdraw the appearance of Mark G Peters as attorney (bet, )
233 CERTIFICATE OF SERVICE by plaintiffs (bet, )
234 ORDER by Judge Rudolph T. Randa: granting motion to withdraw the appearance of Mark G Peters as attorney [232−1] for Jeanine B, Aline H, Maurice R, Douglas R, Carolyn D, James B, Mindy D, Alan A, Darren C, Alissa S, Roxanne F, Jocelyn Z, Karen M, Patricia S, Derrick Z (cc: all counsel) (bet, ) (Entered: 01/12/1999)
235 REPLY BRIEF by defendant Tommy Thompson, defendant Joseph Leean in support of motion compelling disclosure [225−1] (bet, )
236 SUPPLEMENTAL AFFIDAVIT of Peter C Anderson and RULE 6.02 CERTIFICATE of Peter C Anderson in support of motion to compel disclosure (bet, )
237 CERTIFICATE OF SERVICE by deft Tommy Thompson, deft Joseph Leean (bet, )
238 RULE 6.07 MOTION by pltfs to compel discovery and to enforce defts' compliance with the stipulation entered into and approved by this Court concerning the case record review (bet, )
239 BRIEF by pltfs in support of motion to compel discovery and to enforce defts' compliance with the stipulation entered into and approved by this Court concerning the case record review [238−1] (bet, )
240 AFFIRMATION of Rachel H Park (bet, )
241 EXHIBITS A thru W to Affirmation of Rachel H Park filed by pltfs (bet, )
242 CERTIFICATE OF GOOD FAITH by pltfs (bet, )
243 CERTIFICATE OF SERVICE by pltfs (bet, )
244 RULE 6.07 MOTION by deft Tommy Thompson, deft Joseph Leean to have pltfs' Rule 6.07 motion treated as a Rule 6.01 motion with exhibits A & B (bet, )
245 CERTIFICATE OF SERVICE by deft Tommy Thompson, deft Joseph Leean (bet, )
246 ORDER by Judge Rudolph T. Randa: finding the motion to have pltfs' Rule 6.07 motion treated as a Rule 6.01 motion [244−1] moot. Re: motion to compel discovery and to enforce defts' compliance with the stipulation entered into and approved by this Court concerning the case record review [238−1]. Deft shall file response, not exceeding 15 pp, excluding necessary affidavits, on or before 5/17/99. Pltf shall file reply, if any, not exceeding 7 pp, on or before 5/21/99. A decision will issue shortly thereafter (cc: all counsel) (bet, )
247 BRIEF by pltfs in opposition to defts' motion to have pltfs' Rule 6.07 motion treated as a rule 6.01 motion (bet, )
248 MOTION by state defts for protective and scheduling order and to compel production of pltfs' data collection instrument in advance of pltfs' case file review (bet, ) (Entered: 05/18/1999)
249 BRIEF by state defts in support of motion for protective and scheduling order [248−1], of motion to compel production of pltfs' data collection instrument in advance of pltfs' case file review [248−2] and........ (bet, ) (Entered: 05/18/1999)
249 .........BRIEF by state defts in opposition to motion to compel discovery and to enforce defts' compliance with the stipulation entered into and approved by this Court concerning the case record review [238−1] (bet, ) (Entered: 05/18/1999)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 41 of 57

05/17/1999 05/17/1999
05/17/1999
05/17/1999 05/21/1999
05/21/1999
05/21/1999
06/03/1999 06/03/1999 06/03/1999 06/11/1999 06/11/1999 06/11/1999 06/14/1999
06/15/1999 06/18/1999 07/02/1999 07/02/1999 07/02/1999 07/02/1999 07/02/1999 07/02/1999 07/19/1999
09/30/1999

250 AFFIDAVIT of Paul L Barnett (bet, ) (Entered: 05/18/1999)
251 AFFIDAVIT of Peter C Anderson in opposition to pltfs' motion to compel and to enforce stipulation and in support of defts' motion for protective and scheduling order (bet, ) (Entered: 05/18/1999)
252 EXHIBITS 1 thru 16 in support of defts' opposition to pltfs' motion to compel and to enforce stipulation and in support of defts' motion for protective and scheduling order filed by state defts (bet, ) (Entered: 05/18/1999)
253 CERTIFICATE OF SERVICE by state defts (bet, ) (Entered: 05/18/1999)
254 REPLY BRIEF by pltfs in further support of motion to compel discovery and to enforce defts' compliance with the stipulation entered into and approved by this Court concerning the case record review [238−1] with certificate of service (bet, )
255 EXHIBITS A thru E by pltfs in support of pltfs' reply in further support of their motion to compel and to enforce defts' compliance with the stipulation entered into and approved by this court concerning the case record review (bet, )
256 BRIEF by pltfs in opposition to motion for protective and scheduling order [248−1], to motion to compel production of pltfs' data collection instrument in advance of pltfs' case file review [248−2] with exhibit A (bet, )
257 AFFIRMATION of Judith W Meltzer (bet, )
258 RULE 15(a) MOTION by pltfs for leave to file supplemental complaint with proposed supplemental complaint (bet, )
259 BRIEF by pltfs in support of motion for leave to file supplemental complaint [258−1] (bet, )
260 RULE 6.07 MOTION by state defts for extension of time to respond to pltfs' motion for leave to file supplemental complaint (bet, )
261 BRIEF by state defts in support of motion for extension of time to respond to pltfs' motion for leave to file supplemental complaint [260−1] (bet, )
262 CERTIFICATE OF SERVICE by state defts (bet, )
263 DECISION AND ORDER by Judge Rudolph T. Randa: granting defts' motion for extension of time to respond to pltfs' motion leave to file supplemental complaint [260−1]. Response to pltfs' motion to supplement the complaint must be filed on or before 7/2/99 (cc: all counsel) (bet, ) (Entered: 06/15/1999)
264 LETTER (6/14/99) from pltf Atty Rachel H Park re: no objection to extension of time requested by defts (bet, )
265 LETTER (6/17/99) from state defts' Atty Paul L Barnett to pltf Atty Rachel H Park re: status of production of documents (bet, )
266 BRIEF by state defts in opposition to motion for leave to file supplemental complaint [258−1] (bet, )
267 AFFIDAVIT of Francis Gaunt (bet, )
268 AFFIDAVIT of Matthew Gebhardt (bet, )
269 AFFIDAVIT of Beverlee Williams (bet, )
270 AFFIDAVIT of Eric Underly (bet, )
271 CERTIFICATE OF SERVICE by state defts (bet, )
272 REPLY BRIEF by plaintiffs in further support of their motion for leave to file supplemental complaint [258−1] to allege substantive due process violations against the state defendants (wied, )
273 DECISION AND ORDER by Judge Rudolph T. Randa: granting pltfs' motion for leave to file supplemental complaint [258−1], subject to the conditions expessed in the Court's decision; finding the State's motion for protective and scheduling order

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 42 of 57

09/30/1999 10/08/1999 10/14/1999
10/14/1999 11/01/1999 11/01/1999 11/02/1999
11/08/1999 11/08/1999 11/12/1999 11/16/1999
11/17/1999 11/18/1999
12/02/1999 12/02/1999 12/16/1999 01/31/2000 01/31/2000
02/22/2000

[248−1] moot; finding pltfs' Rule 6.07 motion to compel discovery and to enforce defts' compliance with the stipulation entered into and approved by this Court concerning the case record review [238−1] moot; denying pltfs' motion to strike State defts' motion to compel [229−1]; granting in part and taken under advisement in part the State's motion compelling disclosure [225−1] pending further submissions from the pltfs, consistent with the Court's decision. Case referred to Mag Judge Patricia J. Gorence for purposes of conducting a discovery conference, consistent with the Court's decision (cc: all counsel) (bet, )
274 SUPPLEMENTAL COMPLAINT Re: Complaint [1−1] by pltfs; terminating deft Gerald Whitburn (bet, ) (Entered: 10/01/1999)
275 NOTICE of hearing by the Court ; status hearing set for 10:00 10/14/99 (cc: all counsel) (wied, ) (Entered: 10/12/1999)
276 HEARING MINUTES by Magistrate Judge Patricia J. Gorence of telephone status conf held 10/14/99: pltfs to submit letter motion/brief by 11/1/99 outlining remaining discovery disputes; response due 11/12/99; discovery conf set for 11/22/99 in Rm. 264 (vlh, ) (Entered: 10/15/1999)
277 ORDER by Magistrate Judge Patricia J. Gorence: see 10/14/99 minutes (cc: all counsel) (vlh, ) (Entered: 10/15/1999)
278 LETTER STATUS REPORT by pltfs re: outstanding discovery disputes with proposed discovery schedule (bet, )
279 STIPULATION and CONFIDENTIALITY ORDER by Judge Rudolph T. Randa: See Order for details (cc: all counsel) (bet, )
280 STIPULATION and ORDER by Judge Rudolph T. Randa: Upon stipulation of parties, pltfs' report regarding ex parte communications to be submitted for the Court's in camera inspection is due 11/8/99 (cc: all counsel) (bet, )
281 Rule 6.01 MOTION by plaintiff for clarification with attached sealed report of contacts for the court's in camera review (wied, ) (Entered: 11/09/1999)
282 EXHIBIT A to the RUle 6.01 motion for clarification by plaintiffs. Filed UNDER SEAL (wied, ) (Entered: 11/09/1999)
283 LETTER response to 10/29/99 letter from defendant Tommy Thompson (wied, )
284 LETTER from defendant Tommy Thompson enclosing a copy of the 10/29/99 correspondence, which should have been included with 11/11/99 letter to the court (wied, )
285 LETTER from plaintiff re: clarification of discovery matters (wied, )
286 NOTICE of hearing by the Court ; status hearing cancelled 11/18/99 The cancellation is pursuant to the request of the parties and in light of a recently filed motion. The file is being returned to Judge Randa (cc: all counsel) (wied, )
287 BRIEF by defts in opposition to pltfs' motion for clarification [281−1] with attachment (bet, )
288 CERTIFICATE OF SERVICE by defendants (bet, )
289 REPLY BRIEF by pltfs in further support of their Rule 6.01 motion for clarification [281−1] with certificate of service (bet, )
290 Rule 6.01 MOTION by plaintiffs for Court Appointment of Expert pursuant to Rule 706 of the Federal Rules of Evidence to Conduct Expert Case Record Review (wied, )
291 BRIEF by plaintiffs in support of motion for Court Appointment of Expert pursuant to Rule 706 of the Federal Rules of Evidence to Conduct Expert Case Record Review [290−1] (wied, )
292 BRIEF by defts in opposition to pltfs' motion for Court Appointment of Expert pursuant to Rule 706 of the Federal Rules of Evidence to Conduct Expert Case Record Review [290−1] with exhibits 1 thru 7 (bet, )

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 43 of 57

02/22/2000 293 CERTIFICATE OF SERVICE by defts (bet, )

03/02/2000 294 REPLY BRIEF by plaintiffs in support of motion for Court Appointment of Expert pursuant to Rule 706 of the Federal Rules of Evidence to Conduct Expert Case Record Review [290−1] (wied, )

03/13/2000 295 LETTER (3/10/00) from deft Atty Paul L Barnett re: response to pltfs' reply brief on motion seeking appt of a court expert pursuant to FR Evid 706 (bet, ) (Entered: 03/14/2000)

08/21/2000 296 ATTORNEY APPEARANCE for pltfs by Lawrence A Moloney, Quentin R Wittrock, Gregory R Merz, Kacy F Kleinhans, Ann K Bloodhart, Kenneth A Prine, Jean F Holloway, Kristin S Westgard, Heather Klaas, Cynthia J Kasak, Kellie Nealon (bet, )

09/01/2000 297 LETTER (8/29/00) from pltf Atty Marcia Robinson Lowry re: request for pretrial conference (bet, )

09/05/2000 298 NOTICE of hearing by the Court: scheduling conference call set for 10:30 9/21/00 (cc: all counsel) (bet, )

09/19/2000 299 LETTER (9/18/00) from pltf Atty Marcia Robinson Lowry re: information requested for 9/21/00 scheduling conference (bet, )

09/19/2000 300 LETTER (9/18/00) from State deft Atty Peter C Anderson re: information requested for 9/21/00 scheduling conference (bet, )

09/19/2000 301 LETTER (9/19/00) from State deft Atty Peter C Anderson re: request to temporarily adjourn 9/21/00 scheduling conference call (bet, ) (Entered: 09/21/2000)

09/19/2000 302 LETTER (9/19/00) from pltf Atty Eric E Thompson re: do not object to brief adjournment of scheduling conference call and request for in−person conference (fax copy) (bet, ) Modified on 09/22/2000 (Entered: 09/21/2000)

09/22/2000 303 ORIGINAL Document Re: Letter [302−1] (bet, )

09/28/2000 304 LETTER (9/27/00) from pltf Atty Marcia Robinson Lowry with proposed scheduling (bet, )

09/28/2000

305 HEARING MINUTES: Parties may amend pleadings and add parties on or before 12/1/00; Defts' response due 12/15/00; Pltfs' expert witness list ddl 1/1/01; Defts' expert witness list ddl 5/1/01; Pltfs' expert witness reports ddl 4/1/01; Defts' expert witness reports ddl 7/1/01; Pltfs' rebuttal expert witness reports ddl 8/1/01; discovery ddl set for 9/1/01; motion filing ddl set for 10/1/00; Final pretrial conference call set for 9:00 2/28/02; jury trial set for 9:00 4/8/02 est to last 2 weeks; scheduling conference call held 9/28/00 . Court Reporter: None (bet, ) (Entered: 09/29/2000)

09/29/2000 306 SCHEDULING ORDER by Judge Rudolph T. Randa: See Hearing Minutes for schedules (cc: all counsel) (bet, )

09/29/2000

307 DECISION AND ORDER by Judge Rudolph T. Randa: denying pltfs' motion for Court Appointment of Expert pursuant to Rule 706 of the Federal Rules of Evidence to Conduct Expert Case Record Review [290−1]. Granting pltfs' motion for clarification [281−1]. Pltfs shall produce to defts a copy of the sealed exhibit they submitted to this Court for in camera inspection, with redactions, if appropriate, in light of the discussion above. Denying defts' motion to compel production of pltfs' data collection instrument in advance of pltfs' case file review [248−2]. All future discovery proceedings and disputes will be resolved by Mag Judge Gorence (cc: all counsel) (bet, )

10/24/2000 308 LETTER re: 9/29/00 Scheduling Order from defendant Tommy Thompson (wied, )

11/03/2000 309 LETTER from defendants stating it is their understanding that there has never been a demand for a jury trial by plaintiffs. (jll, ) (Entered: 11/06/2000)

11/09/2000 310 LETTER from plaintiffs requesting that briefing on and a resolution of the jury trial issue await the 12/1/00 filing by plts' of their amended complaint. (jll, ) (Entered: 11/13/2000)

11/21/2000 311 DECISION AND ORDER by Judge Rudolph T. Randa modifying 9/29/00 scheduling order by granting plaintiffs' leave to file motion to amend pleadings by 12/01/00 to

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 44 of 57

12/01/2000 12/01/2000
12/06/2000 12/15/2000
12/15/2000
12/20/2000
12/22/2000 12/29/2000 12/29/2000 02/13/2001
03/01/2001 03/01/2001
03/01/2001 03/01/2001
03/05/2001
03/09/2001 03/09/2001 03/09/2001 03/09/2001 03/09/2001

include jury demand or not; amended pleadings ddl and jury trial dates removed (cc: all counsel) (jll, ) (Entered: 11/24/2000)
312 Plaintiffs' MOTION for leave to file plaintiffs' amended supplemental complaint and demand for jury trial (jll, ) Modified on 12/04/2000 (Entered: 12/04/2000)
313 BRIEF in support of plaintiffs' motion for leave to file plaintiffs' amended supplemental complaint [312−1] and jury trial and attached Exhibit A (jll, ) Modified on 06/14/2001 (Entered: 12/04/2000)
314 CERTIFICATE of service for plaintiffs' amended supplemental complaint (jll, )
316 Defendants' BRIEF in opposition to motion for leave to file plaintiffs' amended supplemental complaint and demand for jury trial [312−1]; and certificate of service (jll, ) (Entered: 12/19/2000)
315 LETTER from plaintiffs' with attached Amended Supplemental Complaint, originally filed on 12/1/00, in which one of the plaintiffs was incorrectly named. (bdr, ) (Entered: 01/03/2001)
317 LETTER from defendants Brophy, Thompson and Leean withdrawing the last sentence in footnote 5 p.16 of brief in opposition to pltfs' motion for leave to file an amended supplemental complaint (jll, ) (Entered: 12/21/2000)
318 Plaintiffs' REPLY BRIEF in further support of motion for leave to file plaintiffs' amended supplemental complaint [312−1] (jll, ) (Entered: 12/26/2000)
319 Defendants' Sur−Reply BRIEF in opposition to plaintiffs' motion for leave to file amended supplemental complaint [312−1] (jll, ) (Entered: 01/02/2001)
320 CERTIFICATE of service (jll, ) (Entered: 01/02/2001)
321 STIPULATION and ORDER by Judge Rudolph T. Randa: withdrawing attorney Peter M Koneazny for Jeanine B, for Aline H, for Maurice R, for Douglas R, for Carolyn D, for James B, for Mindy D, for Alan A, for Darren C, Alissa S, for Roxanne F, for Jocelyn Z, for Karen M, for Patricia S, for Derrick Z and substituting attorney Micabil Diaz Martinez (cc: all counsel) (jll, ) (Entered: 02/14/2001)
322 MOTION by plaintiffs for temporary restraining order , and for sanctions including the entry of default judgement (cms, ) Modified on 03/05/2001 (Entered: 03/05/2001)
323 BRIEF by plaintiffs in support of motion for temporary restraining order [322−1], of motion for sanctions including the entry of default judgement [322−2] (cms, ) (Entered: 03/05/2001)
324 AFFIDAVIT of Eric Thompson (cms, ) (Entered: 03/05/2001)
325 EXHIBITS by plaintiff Derrick Z, plaintiff Patricia S, plaintiff Karen M, plaintiff Jocelyn Z, plaintiff Roxanne F, plaintiff Alissa S, plaintiff Darren C, plaintiff Alan A, plaintiff Mindy D, plaintiff James B, plaintiff Carolyn D, plaintiff Douglas R, plaintiff Maurice R, plaintiff Aline H, plaintiff Jeanine B (cms, ) (Entered: 03/05/2001)
345 HEARING MINUTES: by Judge Rudolph T. Randa, Depositions to be conducted in next couple of days. Court schedules another conference call for 3/9/01 at 3:00 Court Reporter: na (jll, ) (Entered: 03/16/2001)
326 Plaintiffs' further evidentiary SUBMISSION in support of their motion for entry of temporary restraining order (jll, ) (Entered: 03/12/2001)
327 Plaintiffs' CERTIFICATE of mailing (jll, ) (Entered: 03/12/2001)
328 DEPOSITION of Ann Muller taken on the following date: 3/6/01 (jll, ) (Entered: 03/12/2001)
329 AFFIDAVIT of David Hergert (jll, ) (Entered: 03/12/2001)
337 HEARING MINUTES: by Judge Rudolph T. Randa ; telephonic hearing on TRO set for 2:00 3/14/01 Court Reporter: na (jll, ) (Entered: 03/14/2001)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 45 of 57

03/09/2001
03/13/2001 03/13/2001 03/13/2001 03/13/2001 03/13/2001 03/13/2001 03/13/2001 03/14/2001 03/14/2001
03/14/2001 03/15/2001 03/15/2001 03/15/2001 03/22/2001
04/02/2001 04/02/2001 04/02/2001
04/02/2001 04/03/2001 04/04/2001
04/04/2001 04/12/2001 04/12/2001

341 STIPULATION and ORDER by Judge Rudolph T. Randa: Ann Muller is directed to identify the child(ren) and families whose files Ann Muller referred to during her deposition of 3/6/01 and that the provisions of the order of 11/1/99 are expressly incorporated into this order and apply fully to the deposition of Ann Muller (cc: all counsel) (jll, ) (Entered: 03/16/2001)
330 AFFIDAVIT of Beth Wydeven (jll, )
331 AFFIDAVIT of John Vymetal−Taylor (jll, )
332 CERTIFICATE of service from the Wis. Dept. of Justice (jll, )
333 CERTIFICATE of service from the Wis. Dept. of Justice (jll, )
334 DEPOSITION of Susan M. Gramling taken on the following date: 3/7/01 (original only − in chambers) (jll, ) Modified on 03/13/2001
335 LETTER from plaintiffs in response to letter of 3/9/01 from counsel for defendants (jll, )
336 AFFIDAVIT of Diane L. Maculan (jll, )
338 DEPOSITION of Susan M. Gramling taken on the following date: 3/7/01 (jll, ) (Entered: 03/16/2001)
339 HEARING MINUTES: by Judge Rudolph T. Randa denying motion for temporary restraining order [322−1] ; preliminary injunction hearing set for 9:00 on 5/3/01 Court Reporter: na (jll, ) (Entered: 03/16/2001)
REMARK: There will be no Docket #340 in this case. (jll, ) Modified on 03/30/2001 (Entered: 03/26/2001)
342 Defendants' SUPPLEMENTAL Brief in Opposition to Plaintiffs' Motion for a Temporary Restraining Order (jll, ) (Entered: 03/16/2001)
343 AFFIDAVIT of Diane L. Maculan (jll, ) (Entered: 03/16/2001)
344 CERTIFICATE of service by defendants (jll, ) (Entered: 03/16/2001)
346 STIPULATION AND PROTECTIVE ORDER with respect to confidential information regarding non−class members by Judge Rudolph T. Randa: (cc: all counsel) (jll, ) (Entered: 03/23/2001)
347 Plaintiffs' MOTION to amend scheduling order (jll, ) (Entered: 04/03/2001)
348 Plaintiffs' BRIEF in support of motion to amend scheduling order [347−1] (jll, ) (Entered: 04/03/2001)
349 AFFIDAVIT of Micabil Diaz−Martinez in support of motion for modification of scheduling order with attachments (jll, ) Modified on 04/03/2001 (Entered: 04/03/2001)
350 Plaintiffs' CERTIFICATE of service (jll, ) (Entered: 04/03/2001)
351 LETTER from defendants advising the Court that the parties have agreed to language for a permanent protective order (jll, ) (Entered: 04/04/2001)
352 ORDER by Judge Rudolph T. Randa that Scott McCallum, Governor of the State of Wisconsin, and Phyllis J. Dube, Secretary of the Wisconsin Dept. of Health and Family Services, are substituted for defendants Tommy G. Thompson and Joseph Leean, respectively. (cc: all counsel) (jll, ) (Entered: 04/09/2001)
353 CERTIFICATE of service by defendants (jll, ) (Entered: 04/09/2001)
354 MOTION by defendants for order limiting plaintiffs' calling of expert witnesses (jll, ) (Entered: 04/13/2001)
355 BRIEF by defendant in support of motion for order limiting plaintiffs' calling of expert witnesses [354−1]; and . . . (jll, ) (Entered: 04/13/2001)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 46 of 57

04/12/2001 355 . . . BRIEF by defendants in opposition to plaintiffs' motion to amend scheduling order [347−1] (jll, ) (Entered: 04/13/2001)

04/12/2001 356 AFFIDAVIT of Paul L. Barnett in support of defendants' motion for order to limit plaintiffs' calling of expert witnesses and in opposition to plaintiffs' motion to modify scheduling order with attached exhibits (jll, ) (Entered: 04/13/2001)

04/12/2001 357 CERTIFICATE of service by defendants (jll, ) (Entered: 04/13/2001)

04/19/2001 359 CERTIFICATE of service (jll, ) (Entered: 04/20/2001)

04/20/2001 358 STIPULATION and ORDER by Judge Rudolph T. Randa: for protective order with respect to confidential information regarding non−class members (cc: all counsel) (jll, )

04/23/2001

360 LETTER from plaintiffs correcting a citation error in their memorandum in support of plaintiffs' Rule 15(d) motion for leave to file plaintiffs' amended supplemental complaint. The citation on p.6 to Pub.L.No. 105−89, Section 301(c), should have read Section 103(c) instead. (jll, ) (Entered: 04/24/2001)

04/25/2001 361 MOTION by defendant Governor WI, defendant Health & Family Svc to stay time for defendants to disclose expert witnesses (jll, )

04/25/2001 362 CERTIFICATE of service by defendants (jll, )

04/27/2001 363 Plaintifs' BRIEF in opposition to motion for order limiting plaintiffs' calling of expert witnesses [354−1]; and . . . (jll, ) (Entered: 04/30/2001)

04/27/2001 363 . . . plaintiffs' REPLY BRIEF in support of motion to amend scheduling order [347−1] with attached certificate of service (jll, ) (Entered: 04/30/2001)

04/27/2001 364 AFFIDAVIT of Sarah Hechtman in support of opposition to defendants' motion for order limiting plaintiffs' calling of expert witnesses and in further support of plaintiffs' motion for modification of scheduling order (jll, ) (Entered: 04/30/2001)

04/27/2001

365 AFFIDAVIT of Eric Thompson in support of opposition to defendants' motion for order limiting plaintiffs' calling of expert witnesses and in further support of plaintiffs' motion for modification of scheduling order with attached exhibits (jll, ) (Entered: 04/30/2001)

04/30/2001 366 LETTER from plaintiffs requesting that the Court reschedule the 5/3/01 hearing date for the week of 7/16/01. (jll, ) (Entered: 05/01/2001)

05/02/2001 367 LETTER from plaintiffs re scheduling of the hearing on plaintiffs' motion for preliminary injunction (jll, )

05/08/2001 368 Plaintiffs' BRIEF in opposition to defendants' Rule 6.07 motion to stay time for defendants to disclose expert witnesses [361−1] (jll, )

05/08/2001 369 Plaintiffs' CERTIFICATE of service (jll, )

05/14/2001 370 REPLY BRIEF by defendants in support of their motion for order limiting plaintiffs' ability to call expert witnesses [354−1] (jll, )

05/14/2001 371 AFFIDAVIT of Corey F. Finkelmeyer with attached exhibit (jll, )

05/14/2001 372 CERTIFICATE of service by defendants (jll, )

05/16/2001

373 HEARING MINUTES: by Mag Judge Patricia J. Gorence court discusses discovery issue raised by defendant. Attorney Loeffler will not question witness Martha Johnson at her deposition but will be able to attend the deposition. He will abide by a confidentiality order entered. Parties will submit signed documents regarding confidentiality. Court Reporter: Tape AB 668, 1160−3290 (cms, )

06/01/2001 374 Plaintiffs' MOTION to seal with attached order and attached SEALED documents. (jll, ) (Entered: 06/04/2001)

06/04/2001

375 ORDER by Judge Rudolph T. Randa granting motion to seal [374−1] plaintiffs' Rule 6.07 Motion for court−ordered clinical evaluations of named plaintiffs, affidavit of Edward Barkowski and Sealed Order Regarding Evaluations (cc: all counsel) (jll, ) (Entered: 06/05/2001)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 47 of 57

06/08/2001 376 BRIEF by defendants in opposition plaintiffs' Rule 7.4 motion (denominated Rule 6.07 Motion) for court−ordered clinical evaluations of proposed plaintiffs Diana M. and Julie R. (jll, ) (Entered: 06/11/2001)

06/08/2001 377 CERTIFICATE of service by defendants (jll, ) (Entered: 06/11/2001)

06/11/2001 378 LETTER from plaintiffs regarding plaintiffs' motion for modification of the scheduling order submitted on 4/2/01 with attached SEALED Exhibits. (jll, ) (Entered: 06/12/2001)

06/11/2001 379 LETTER from plaintiffs re: plaintiffs' Rule 6.07 Motion for Court−Ordered Clinical Evaluations (jll, ) (Entered: 06/12/2001)

06/11/2001 380 Memorandum in further support of Plaintiffs' Rule 6.07 motion for court−ordered clinical evaluations with attached certificate of service (jll, ) (Entered: 06/12/2001)

06/19/2001

381 DECISION AND ORDER by Judge Rudolph T. Randa granting motion for leave to file plaintiffs' amended supplemental complaint [312−1] & formally entering 12/15/00 proposed amended supplemental complaint on the docket but striking the jury demand on the caption page (cc: all counsel) (vlh, ) (Entered: 06/20/2001)

06/19/2001 382 AMENDED SUPPLEMENTAL COMPLAINT re: [274−1] (vlh, ) (Entered: 06/20/2001)

06/22/2001 383 Rule 7.4 MOTION by defendants to stay time for defendants to produce expert witness reports with attached certificate of service (jll, ) (Entered: 06/25/2001)

06/26/2001 384 DOCUMENTS received from MPS SEALED (jll, ) Modified on 06/27/2001

06/28/2001 385 ORDER by Judge Rudolph T. Randa SEALED (cc: all counsel) (jll, ) (Entered: 06/29/2001)

07/05/2001 386 SEALED DOCUMENTS received from MPS (vlh, )

07/06/2001 387 LETTER from plaintiffs' counsel regarding education records SEALED (jll, ) (Entered: 07/09/2001)

07/10/2001 388 Plaintiffs' BRIEF in opposition to defendants' Rule 7.04 motion to stay time for defendants to produce expert witness reports [383−1] (jll, ) (Entered: 07/11/2001)

07/11/2001 389 LETTER from defendants objecting that prior notice of the subject subpoena was not served on defendants and suggesting that plaintiffs are misinterpreting the word "guardian"; with attached certificate of service (jll, ) Modified on 07/20/2001

07/16/2001 390 LETTER from plaintiffs re confirmation of plaintiffs' decision to withdraw its motion for preliminary injunction with attachment (jll, )

07/20/2001 391 Follow−up LETTER from plaintiffs regarding the subpoenas for education records of the newly named plaintiffs served by plaintiffs' counsel. (jll, ) (Entered: 07/23/2001)

08/07/2001 392 ORDER by Judge Rudolph T. Randa; Children's Hospital of Wisconsin is authorized to examine Julie R. for the purpose of preparing medical and psychological evaluations as part of this litigation. (cc: all counsel) (jll, ) (Entered: 08/08/2001)

08/09/2001 393 ORDER by Judge Rudolph T. Randa ; telephone status conference set for 3:30 on 8/23/01 (cc: all counsel) (jll, ) (Entered: 08/10/2001)

08/24/2001

396 STIPULATION and CONFIDENTIALITY ORDER by Judge Rudolph T. Randa: the names, addresses, and any other personal identifying information disclosed pursuant to paragraph 1 shall not be submitted or disclosed in any judicial proceeding, except under seal or by pseudonym. (cc: all counsel) (jll, ) (Entered: 08/29/2001)

08/27/2001 394 LETTER from plaintiffs regarding the telephone conference with the Court set for 8/23/01 at 3:30 (jll, ) (Entered: 08/28/2001)

08/28/2001 395 LETTER from defendants in response to plaintiffs' 8/23/01 letter to the Court. (jll, )

08/30/2001

397 LETTER from plaintiffs advising the Court that Kellie Nealon, Kristin Westgard and Heather Klaas of Dorsey & Whitney, and Cindy Kasak formerly of Dorsey & Whitney, are no longer attorneys of record in this case. James K. Langdon II will be the attorney of record from Dorsey & Whitney. Jean Holloway, formerly of Dorsey &

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 48 of 57

09/10/2001 10/12/2001 10/15/2001 10/16/2001 10/16/2001
10/26/2001 11/06/2001 11/06/2001 11/21/2001 11/21/2001 11/28/2001 11/29/2001 11/29/2001
12/13/2001 12/13/2001 12/13/2001 12/13/2001 12/31/2001 01/07/2002
01/10/2002

Whitney, can now be reached at 6600 Kenney Place, Edina, MN 55439 (952−943−8116) (jll, ) Modified on 09/05/2001 (Entered: 08/31/2001)
398 LETTER from defendants re experts' report deadline − should be completed in October (jll, ) (Entered: 09/12/2001)
399 LETTER from plaintiffs re present status of the case and defendants' delay of the completion of expert discovery (jll, ) (Entered: 10/16/2001)
400 LETTER from defendants in response to plaintiffs' counsel's letter to the Court dated 10/10/01 re schedule and completion of expert discovery. (jll, ) (Entered: 10/16/2001)
401 LETTER from defendants on the issue of expert witness deadlines and disclosures. (jll, ) (Entered: 10/17/2001)
402 DECISION AND ORDER by Judge Rudolph T. Randa granting defendants' motions of 4/25/01 and 6/22/01 seeking a stay of their expert disclosure obligations; [361−1][383−1], denying defendants' motion for order limiting plaintiffs' calling of expert witnesses [354−1] (see Order for details), granting in part and denying in part plaintiffs' motion to amend scheduling order [347−1] ; the scheduling order of 9/29/00 is vacated; the Court will initiate and conduct a telephonic conference with counsel for the purpose of establishing new dates, date to be announced shortly (cc: all counsel) (jll, ) (Entered: 10/17/2001)
403 NOTICE of hearing by the Court ; telephonic scheduling conference set for 10:00 on 10/21/01 (cc: all counsel) (jll, ) (Entered: 10/29/2001)
404 Amended ATTORNEY APPEARANCE for defendants by Paul L Barnett, Corey Finkelmeyer (jll, ) Modified on 11/06/2001
405 CERTIFICATE of service by defendants (jll, )
406 HEARING MINUTES: by Judge Rudolph T. Randa ; telephonic scheduling conference set for 3:30 on 11/29/01 Court Reporter: na (jll, ) (Entered: 11/23/2001)
407 NOTICE of hearing by the Court telephonic conference set for 11/29/01 at 3:30 (cc: all counsel) (jll, ) (Entered: 11/23/2001)
408 PROPOSED scheduling order submitted by defendants (jll, ) (Entered: 11/29/2001)
409 LETTER from plaintiff's re trial schedule (jll, ) (Entered: 12/03/2001)
410 Amended Scheduling ORDER by Judge Rudolph T. Randa ; telephonic status hearing held 11/29/01; defendants' expert report ddl: 6/1/02; plaintiffs' rebuttal expert report ddl: 7/1/20; discovery ddl set for 8/1/02; motion filing ddl set for 10/1/02; pretrial conference set for 10:00 on 1/31/03; trial set for 9:00 on 3/31/03 (cc: all counsel) (jll, ) (Entered: 12/03/2001)
411 PETITION by defendants for attorneys' fees and costs pursuant to this Court's 10/16/01 decision and order (jll, ) (Entered: 12/14/2001)
412 AFFIDAVIT of Paul L. Barnett in support of defendants' claim for attorneys fees with attachments (jll, ) Modified on 12/14/2001 (Entered: 12/14/2001)
413 AFFIDAVIT of Peter C. Anderson in support of defendants' claim for attorneys fees (jll, ) (Entered: 12/14/2001)
414 CERTIFICATE of service by defendants (jll, ) (Entered: 12/14/2001)
415 LETTER from plaintiffs re attorney's fees and costs pursuant to the Court's 10/16/01 decision and order (jll, )
416 LETTER from plaintiffs informing the Court that plaintiffs and defendants have successfully negotiated a resolution to the petition of defendants for attorneys' fees and costs pursuant to the Court's 10/16/01 Order. (jll, ) (Entered: 01/08/2002)
417 ATTORNEY APPEARANCE for defendant Governor WI, defendant Health & Family Svc by Mary E Burke (jll, ) (Entered: 01/14/2002)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 49 of 57

01/10/2002 02/07/2002
02/12/2002
02/12/2002 02/15/2002 02/15/2002
02/19/2002
02/19/2002 02/21/2002 02/27/2002 02/27/2002 03/25/2002
04/10/2002 04/10/2002 04/10/2002 04/10/2002 04/10/2002 04/10/2002 04/11/2002 04/12/2002 04/16/2002 04/16/2002 04/17/2002 04/17/2002 04/18/2002

418 CERTIFICATE of service by defendant Governor WI, defendant Health & Family Svc (jll, ) (Entered: 01/14/2002)
419 MOTION by plaintiffs to compel discovery necessary for plaintiffs' expert rebuttal report with attachments, and attached certificate of service (jll, ) Modified on 02/25/2002 (Entered: 02/08/2002)
420 MOTION by defendants to amend briefing schedule and issue an order that provides that defendants must file their responsive brief and supporting papers no later than 2/19/02, and that the brief be no more than 10 pages. (jll, )
421 CERTIFICATE of service by defendants (jll, )
422 LETTER from plaintiffs stating they have no objection to defendants' request to extend time to file a response to 2/19/02. (jll, ) (Entered: 02/20/2002)
423 ORDER by Judge Rudolph T. Randa granting motion to amend briefing schedule [420−1]; defts' ddl for filing brief in opposition to plts' motion to compel is 2/19/02; pltfs' reply brief due 3/7/02. (cc: all counsel) (jll, ) (Entered: 02/20/2002)
425 BRIEF by defendants in opposition to plaintiffs' motion to compel discovery necessary for plaitniffs' expert rebuttal report [419−1] with attachments (jll, ) (Entered: 02/25/2002)
426 CERTIFICATE of service by defendants (jll, ) (Entered: 02/25/2002)
424 LETTER from defendants withdrawing their petition for attorneys' fees. (jll, ) (Entered: 02/22/2002)
427 Plaintiffs' REPLY BRIEF in further support of their motion to compel discovery [419−1] necessary for plaintiffs' expert rebuttal report with attachment (jll, )
428 CERTIFICATE of service (jll, )
429 DECISION AND ORDER by Judge Rudolph T. Randa granting plaintiffs' motion to compel discovery [419−1]; defendants must produce documents responsive to Request Nos. 4 & 5 of plaintiffs' Eighth Supplemental Request for Production of Documents by 4/15/02. (cc: all counsel) (jll, ) (Entered: 03/26/2002)
430 MOTION by defendants for protective order (jll, )
431 AFFIDAVIT of Melvyn Krc (jll, )
432 AFFIDAVIT of Paul L. Barnett (jll, )
433 AFFIDAVIT of Mary E. Burke (jll, )
434 EXHIBITS and index to exhibits by defendants (jll, )
435 CERTIFICATE of service by defendants (jll, )
436 LETTER from defendants advising the Court of matters relating to plaintiffs' upcoming rebuttal case reading (jll, ) (Entered: 04/12/2002)
437 LETTER from plaintiffs requesting a conference with the Court to resolve a discovery dispute (jll, )
438 Plaintiffs' BRIEF in opposition to defendants' motion for protective order [430−1] with attached Exhibits (jll, ) Modified on 04/17/2002 (Entered: 04/17/2002)
439 Plaintiffs' CERTIFICATE of service (jll, ) (Entered: 04/17/2002)
440 ORIGINAL affidavit of S. Christopher Baird, filed as Exhibit B to plaintiffs' brief in opposition, Re: [438−1], filed 4/16/02. (jll, )
441 OBJECTIONS by defendants to plaintiffs' fifth supplemental set of interrogatories (jll, )
442 DECISION AND ORDER by Judge Rudolph T. Randa granting motion for protective order [430−1] (see Order for details) (cc: all counsel) (jll, ) (Entered: 04/19/2002)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 50 of 57

04/22/2002 04/22/2002 04/22/2002 04/22/2002 05/15/2002 05/15/2002 05/15/2002 05/17/2002 05/17/2002 05/22/2002 05/22/2002 06/03/2002
06/03/2002 06/13/2002
07/02/2002
09/18/2002 09/24/2002 09/24/2002
09/24/2002 09/24/2002
09/24/2002 09/24/2002
09/26/2002 09/26/2002

443 REPLY by defendants to plaintiffs' opposition to defendants' motion for protective order with attachments (jll, )
444 AFFIDAVIT of Paul L. Barnett (jll, )
445 AFFIDAVIT of David S. Hergert (jll, )
446 CERTIFICATE of service by defendants (jll, )
447 MOTION by defendants for relief from disclosure requirements regarding hybrid witnesses pursuant to Civil L.R. 26.1(b) with attachments (jll, )
448 AFFIDAVIT of Christine P. Freeland with attachment (jll, )
449 CERTIFICATE of service by defendants (jll, )
450 Plaintiffs' BRIEF in opposition to defendants' motion for relief from disclosure requirements regarding hybrid witnesses [447−1] (jll, ) (Entered: 05/21/2002)
451 CERTIFICATE of service by plaintiffs (jll, ) (Entered: 05/21/2002)
452 REPLY BRIEF by defendants in support of motion for relief from disclosure requirements regarding hybrid witnesses [447−1] (kah, )
453 CERTIFICATE OF SERVICE BY MAIL by defendants (kah, )
454 STIPULATION and ORDER by Judge Rudolph T. Randa ; discovery ddl reset for 10/1/02 ; all other terms of 11/29/01 amended scheduling order shall remain in place (see order for details) (cc: all counsel) (jll, ) (Entered: 06/04/2002)
455 CERTIFICATE of service by defendants (jll, ) (Entered: 06/04/2002)
456 MOTION by plaintiff Roxanne F, plaintiff James B for order for the substitution of two next friends with attached certificate of service (jll, ) Modified on 07/03/2002 (Entered: 07/03/2002)
457 ORDER by Judge Rudolph T. Randa granting motion for order for the substitution of two next friends [456−1]; Michael Vruno is substituted for both Julia Vosper as next friend for Roxanne F., and for Mary Protz as next friend for James B. (cc: all counsel) (jll, ) (Entered: 07/03/2002)
458 HEARING MINUTES: by Chief Judge Rudolph T. Randa ; hearing set for 1:00 on 11/15/02 (jll, ) (Entered: 09/19/2002)
459 LETTER from defendants re notice of proposed settlement agreement (jll, ) (Entered: 09/27/2002)
460 JOINT MOTION by plaintiffs & defendants for preliminary and final approval of settlement agreement, order directing distribution of notice of proposed settlement agreement and order scheduling fairness hearing ; attachments (jll, ) Modified on 09/27/2002 (Entered: 09/27/2002)
461 NOTICE from Chief Judge Randa of proposed settlement agreement (jll, ) (Entered: 09/27/2002)
462 ORDER by Chief Judge Rudolph T. Randa directing distribution of notice of proposed settlement agreement and related matters [460−1] (cc: all counsel) (jll, ) (Entered: 09/27/2002)
463 CERTIFICATE of service by defendants (jll, ) (Entered: 09/27/2002)
464 LETTER from Chief Judge Randa to counsel re: the Court has signed the orders having found that the proposed Settlement Agreement is within the range of possible approval and that there is good reason to notify the class members of the proposed Settlement Agreement. (jll, ) (Entered: 09/27/2002)
465 MOTION by defendants for for order for approval of revised notice of proposed settlement agreement (jll, ) (Entered: 09/27/2002)
466 CERTIFICATE of service by defendants (jll, ) (Entered: 09/27/2002)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 51 of 57

09/26/2002 10/08/2002 10/08/2002 10/08/2002 10/15/2002 10/17/2002 10/29/2002 10/30/2002 10/31/2002
10/31/2002 10/31/2002 10/31/2002 10/31/2002 11/07/2002
11/08/2002
11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002

467 ORDER by Chief Judge Rudolph T. Randa approving revised notice of proposed settlement agreement [465−1] (cc: all counsel) (jll, ) (Entered: 09/27/2002)
468 AFFIDAVIT of Juan B. Colas; attachments (jll, ) (Entered: 10/09/2002)
469 AFFIDAVIT of Micabil Diaz−Martinez; attachments (jll, ) (Entered: 10/09/2002)
470 CERTIFICATE of service from plaintiffs (jll, ) (Entered: 10/09/2002)
471 REQUEST by plaintiffs for hearing (jll, ) (Entered: 10/16/2002)
472 NOTICE of hearing by the Court conference call set for 11/7/02 at 9:30 a.m. (cc: all counsel) (jll, ) (Entered: 10/18/2002)
473 OBJECTION to the proposed class action settlement by Honorable Michael Skwierawski & Honorable Christopher R. Foley (jll, ) (Entered: 10/30/2002)
475 LETTER from Jaci Blaszak in support of the proposed settlement agreement (jll, ) (Entered: 11/01/2002)
474 LETTER from E. Michael McCann, Milwaukee County District Attorney in support of the proposed settlement agreement (jll, ) Modified on 11/01/2002 (Entered: 11/01/2002)
476 LETTER from Mary Jane Proft re proposed settlement agreement (jll, ) (Entered: 11/01/2002)
477 LETTER from Vincent Vukelich & Susan Conwell re proposed settlement agreement (jll, ) (Entered: 11/01/2002)
478 LETTER from Magdalia J. Proft re proposed settlement agreement (jll, ) (Entered: 11/01/2002)
479 LETTER from Karen Jick, Director Milwaukee CASA re proposed settlement agreement (jll, ) (Entered: 11/01/2002)
498 Minute Entry for proceedings held before Judge Rudolph T Randa : Status Conference Call held on 11/7/2002. Class action settlement. Hearing for 11/15/02 discussed.. (Court Reporter n/a) (bdr, ) (Entered: 11/18/2002)
480 DECISION AND ORDER by Chief Judge Rudolph T. Randa; re procedure to be followed at the 11/15/02 hearing on settlement; the Court will not reach a decision from the bench on 11/15/02, but anticipates submitting a decision within 10 days thereafter. (cc: all counsel) (jll, ) (Entered: 11/12/2002)
481 BRIEF by plaintiffs in support of joint motion for final approval of settlement agreement; attachments (jll, ) (Entered: 11/13/2002)
482 MOTION by defendants to file named plaintiffs' updates under seal (jll, ) SEALED as of 11/14/02 Order. (Entered: 11/13/2002)
483 PROPOSED findings of fact & conclusions of law in respect to the proposed settlement agreement submitted by defendants (jll, ) (Entered: 11/13/2002)
484 AFFIDAVIT of Amy Korpady (jll, ) (Entered: 11/13/2002)
485 AFFIDAVIT of Christine P. Freeland (jll, ) (Entered: 11/13/2002)
486 AFFIDAVIT of Mary E. Burke (jll, ) (Entered: 11/13/2002)
487 AFFIDAVIT of Linda Ashley (jll, ) (Entered: 11/13/2002)
488 AFFIDAVIT of Mary C. Protz; attachments (jll, ) (Entered: 11/13/2002)
489 AFFIDAVIT of Denise Revels Robinson (faxed copy) (jll, ) (Entered: 11/13/2002)
490 AFFIDAVIT of Kelly V. Scott (jll, ) (Entered: 11/13/2002)
491 AFFIDAVIT of Daniel D. Stier (jll, ) SEALED as of 11/14/02 Order. (Entered: 11/13/2002)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 52 of 57

11/12/2002 11/12/2002 11/12/2002 11/14/2002 11/14/2002 11/14/2002 11/14/2002
11/14/2002 11/14/2002 11/15/2002 11/15/2002 11/15/2002 11/15/2002
11/15/2002 11/19/2002 12/02/2002
12/03/2002 04/11/2003 04/11/2003 04/11/2003
04/15/2003
04/17/2003
11/14/2003 11/14/2003

492 MOTION by defendants to file named plaintiffs' updates under seal ; updates SEALED (original only − in chambers) (jll, ) (Entered: 11/13/2002)
493 EXHIBITS 1−31 in support of the parties' joint motion to approve settlement agreement by defendants − (orginal only − in chambers). (jll, ) (Entered: 11/13/2002)
494 CERTIFICATE of service by defendants (jll, ) (Entered: 11/13/2002)
495 BRIEF by defendants in support of joint motion for approval of settlement agreement; certificate of service. (jll, )
496 MOTION by defendants to seal affidavit of Daniel D. Stier filed 11/12/02 (jll, )
497 Amended BRIEF by defendants in support of joint motion for approval of settlement agreement (jll, )
504 ORDER signed by Judge Rudolph T Randa on 11/14/02granting 482 Motion to Seal, granting 492 Motion to Seal named plaintiffs' updates under seal. (cc: all counsel) (jll, ) (Entered: 11/19/2002)
505 ORDER signed by Judge Rudolph T Randa on 11/14/02granting 496 Motion to Seal affidavit of Daniel D. Stier filed 11/12/02. (cc: all counsel) (jll, ) (Entered: 11/19/2002)
506 AFFIDAVIT of Daniel D. Stier SEALED (jll, ) (Entered: 11/19/2002)
499 AFFIDAVIT of Mary C Protz (bdr, ) (Entered: 11/18/2002)
500 AFFIDAVIT of Linda Ashley (bdr, ) (Entered: 11/18/2002)
501 AFFIDAVIT of Denise Revels Robinson (bdr, ) (Entered: 11/18/2002)
502 Minute Entry for proceedings held before Judge Rudolph T Randa : Class Action Settlement Conference held on 11/15/2002 . (Court Reporter Heidi Trapp) (bdr, ) (Entered: 11/18/2002)
503 Proposed Findings of Fact by Plaintiffs regarding the proposed settlement agreement.(bdr, ) (Entered: 11/18/2002)
507 REPLY filed by Defendants to plaintiffs' proposed findings of fact and conclusions of law regarding the proposed settlement agreement. (jll, ) (Entered: 11/20/2002)
508 DECISION AND ORDER CLOSING CASE for statistical purposes subject to the continued monitoring of the terms of the agreement; the proposed settlement agreement is approved by the Court & the parties' joint motion for final approval of the settlement agreement is granted. signed by Judge Rudolph T Randa on 12/2/02. (cc: all counsel)(jll, ) (Entered: 12/06/2002)
509 SETTLEMENT AGREEMENT by all parties; signed by Chief Judge Randa on 12/3/02 (jll, ) (Entered: 12/06/2002)
510 MOTION to Substitute Named Defendant by Defendants. (jll, )
511 CERTIFICATE OF SERVICE by Defendants (jll, )
512 ORDER signed by Judge Rudolph T Randa on 4/11/03granting 510 defendants' Motion to Substitute Party; James E. Doyle is substitued for defendant Scott McCallum in the captioned case. (cc: all counsel) (jll, ) (Entered: 04/15/2003)
514 LETTER from Eric Thompson requesting the Court to remove the following counsel from the case; Attorneys Moloney, Merz, Wittrock, Langdon, Holloway & Diaz−Martinez (jll, ) (Entered: 04/21/2003)
513 CONSENT ORDER signed by Judge Rudolph T Randa on 4/17/03 that the discharge report for Corey H.'s 2/20/03 CATC discharge be released to plaintiffs' counsel by the Bureau. (cc: all counsel)(cms, ) (Entered: 04/18/2003)
515 Joint MOTION for modification of 12/3/03 approved settlement agreement by all parties. (jll, ) (Entered: 11/18/2003)
516 ORDER modifying 12/3/02 settlement agreement; that Section I.B.3 of the 12/3/02 approved settlement agreement is modified by striking the provision therein that: "The

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 53 of 57

11/14/2003 11/14/2003 11/22/2004 11/22/2004 11/22/2004 11/29/2004 11/29/2004 11/29/2004 01/18/2005
01/18/2005 01/18/2005
01/31/2005 02/08/2005 05/23/2005 05/23/2005 05/23/2005 05/23/2005
12/19/2005 12/20/2005

percentages shall be calculated against a baseline of 1146 children." signed by Judge Rudolph T Randa on 11/14/03granting 515 Joint Motion to Modify settlement agreement of 12/3/02. (cc: all counsel) (jll, ) (Entered: 11/18/2003)
517 MODIFIED SETTLEMENT AGREEMENT (jll, ) (Entered: 11/18/2003)
518 CERTIFICATE OF SERVICE by the State of Wisconsin (jll, ) (Entered: 11/18/2003)
519 Unopposed MOTION for Attorney Fees and expenses per stipulated agreement by all plaintiffs. (jld, )
520 BRIEF in Support re 519 unopposed MOTION for Attorney Fees and expenses per stipulated agreement filed by all plaintiffs. (jld, )
521 AFFIDAVIT of Marcia Robinson Lowry (jld, )
522 Minute Entry for proceedings held before Judge Rudolph T Randa : Conference Call as to attorney's fees and expenses and notification to the class, held on 11/29/2004 ; order and notice to class executed. (jld, ) (Entered: 11/30/2004)
523 ORDER directing distribution of notice of unopposed motion for plaintiffs' attorneys' fees and expenses per stipulated agreement and related matters, signed by Judge Rudolph T Randa on 11/29/04 (cc: all counsel) (jld, ) (Entered: 11/30/2004)
524 NOTICE of unopposed motion for plaintiffs' attorneys' fees and expenses per stipulated agreement, by the Court (jld, ) (Entered: 11/30/2004)
525 LETTER from Asst. A.G. Mary E. Burke informing the court that plaintiffs rest on previous filings in this matter & also advising court that parties agree there exists sufficient grounds for entry of previously−provided proposed order and they request it be entered (vlh, ) (Entered: 01/19/2005)
526 AFFIDAVIT of Linda Ashley with attached exhibits (vlh, ) (Entered: 01/19/2005)
527 ORDER by Judge Rudolph T Randa granting plaintiffs' unopposed 519 motion for attorneys' fees and expenses & ordering that partial final judgment be entered in favor of plaintiffs against defendants in the sum of $58,000.00, pursuant to the stipulated agreement of the parties, in full & complete satisfaction of plaintiffs' claims for attorneys' fees & expenses for the period 12/4/02 through 5/31/04 (cc: all counsel)(vlh, ) (Entered: 01/20/2005)
Mail Returned as Undeliverable. 1/18/05 Order sent to Ann K. Bloodhart (jld, ) (Entered: 02/01/2005)
Mail Returned as Undeliverable. 1/18/05 Order sent to Christopher Dunn (jld, ) (Entered: 02/09/2005)
528 Unopposed MOTION for attorney fees & expenses by plaintiffs. (vlh, )
529 BRIEF in Support of 528 MOTION for attorney fees & expenses by plaintiffs. (vlh, )
530 AFFIDAVIT of Marcia Robinson Lowry with attached exhibits A through I (vlh, )
531 ORDER signed by Judge Rudolph T Randa on May 23, 2005 granting 528 Plaintiffs' Unopposed Motion for Attorney Fees and Expenses Per Stipulated Agreement; notice to the Class is waived. Partial final judgment is entered in favor of the plaintiffs, against the defendants, in the sum of $33,000, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs' claims for attorneys' fees and expenses for the period June 1, 2004 through December 31, 2004. (cc: via US Mail to Eric Thompson, Marcia Robinson Lowry and Mary Burke)(Randa, Rudolph) (Entered: 05/24/2005)
532 ORDER that Plaintiffs' Unopposed Motion is Granted, and further notice to the Class is waived, signed by Judge Rudolph T Randa on December 19, 2005. (cc: all counsel)(Randa, Rudolph) Modified on 12/22/2005 (jld, ). (Entered: 12/20/2005)
533 Unopposed MOTION for plaintiffs' Attorney Fees and expenses per stipulated agreement; certificate of service, by plaintiffs. (jld, ) (Entered: 12/21/2005)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 54 of 57

12/20/2005 07/21/2006 07/21/2006 07/26/2006 11/20/2006 04/25/2007
04/25/2007 04/30/2007 05/03/2007 12/11/2007 12/17/2007 04/17/2008 04/18/2008 05/19/2008 05/22/2008
12/01/2008 12/01/2008 05/04/2009 05/05/2009

534 BRIEF in Support re 533 MOTION for Attorney Fees; Exhibits A, B & C, filed by all plaintiffs. (jld, ) document(s) added on 12/14/2006 (JD). (Entered: 12/21/2005)
535 Unopposed MOTION for Attorney Fees and Expenses per Stipulated Agreement; certificate of service, by plaintiffs. (Attachments: # 1 Cover Letter)(jld, )
536 BRIEF in Support re 535 MOTION for Attorney Fees and Expenses Per Stipulated Agreement, filed by plaintiffs . (jld, ) Exhibits(A, B & C) added on 12/14/2006 (JD).
537 ORDER signed by Judge Rudolph T Randa on July 26, 2006 granting 535 Motion for Attorney Fees. (cc: via US Mail all counsel) (Randa, Rudolph)
538 LETTER with attached arbitration decision, from Janine P. Geske. (Attachments: # 1 Decision and Order)(jld)
539 Consent MOTION for Attorney Fees For January 1, 2006 Through June 30, 2006 by all plaintiffs. (Attachments: # 1 Memorandum in Support# 2 Exhibit Stipulated Agreement# 3 Exhibit Fees and Expenses# 4 Exhibit May 23, 2005 Order# 5 Text of Proposed Order)(Thompson, Eric)
540 MOTION to Withdraw as Attorney Various Plaintiffs' Counsel by all plaintiffs. (Thompson, Eric)
MARGIN ORDER approving 540 MOTION to Withdraw as Attorney Various Plaintiffs' Counsel. Signed by Judge Rudolph T Randa on April 30, 2007. (cc: all counsel)(Randa, Rudolph) (Entered: 05/01/2007)
541 ORDER signed by Judge Rudolph T Randa on May 3, 2007 granting 539 Motion for Attorney Fees. (cc: all counsel) (Randa, Rudolph)
542 MOTION for Attorney Fees Per Stipulated Agreement by all plaintiffs. (Attachments: # 1 Text of Proposed Order # 2 Memo in Support# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C)(Thompson, Eric)
543 ORDER signed by Judge Rudolph T Randa on December 17, 2007 granting 542 Motion for Attorney Fees. (cc: all counsel) (Randa, Rudolph) (Entered: 12/18/2007)
544 Joint MOTION for Order by all parties. (Attachments: # 1 Text of Proposed Order Consent)(Thompson, Eric)
545 CONSENT ORDER signed by Chief Judge Rudolph T Randa on April 18, 2008. (cc: all counsel)(Koll, J) (Entered: 04/21/2008)
546 Consent MOTION for Attorney Fees by all plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Memo in Support, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Thompson, Eric)
547 ORDER signed by Chief Judge Rudolph T Randa on May 22, 2008 granting 546 Motion for Attorney Fees and further notice to the Class is WAIVED. It is hereby further ORDERED THAT partial final judgment be entered in favor of the plaintiffs, JEANINE B., et al. against the defendants, JAMES DOYLE, et al., in the sum of $25,000.00, pursuant to the Stipulated Agreement of the parties, in full and complete satisfaction of plaintiffs claims for attorneys fees and expenses for the period July 1, 2007, through December 31, 2008. (cc: all counsel) (Koll, J) (Entered: 05/27/2008)
548 MOTION for Attorney Fees Per Stipulated Agreement by all plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(Thompson, Eric)
549 ORDER signed by Chief Judge Rudolph T Randa on 12/01/2008 granting 548 Motion for Attorney Fees. (cc: all counsel) (Koll, J) (Entered: 12/02/2008)
550 Consent MOTION for Attorney Fees Per Stipulated Agreement by all plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Thompson, Eric)
551 ORDER signed by Chief Judge Rudolph T Randa on 05/05/2009 granting 550 Motion for Attorney Fees and Expenses Per Stipulated Agreement. (cc: all counsel) (Koll, J)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 55 of 57

01/20/2010

552 Consent MOTION for Attorney Fees by Alan A, James B, Jeanine B, Danny C, Darren C, Carolyn D, Mindy D, Roxanne F, Aline H, Corey H, Diana H, Frank M, Karen M, Douglas R, Julie R, Maurice R, Alissa S, Patricia S, Derrick Z, Jocelyn Z. (Attachments: # 1 Text of Proposed Order, # 2 Memo in Support, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Thompson, Eric)

01/20/2010 553 ORDER signed by Judge Rudolph T Randa on 01/20/2010 granting 552 Motion for Attorney Fees. (cc: all counsel) (Koll, J) (Entered: 01/21/2010)

12/06/2010 554 Interim MOTION for Attorney Fees (Unopposed) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Thompson, Eric)

12/07/2010 555 ORDER signed by Judge Rudolph T Randa on 12/07/2010 granting 554 Unopposed Motion for Plaintiffs' Attorneys' Fees and Expenses Per Stipulated Agreement. (cc: all counsel) (Koll, J) (Entered: 12/08/2010)

02/04/2011 556 LETTER from AAG Mary Burke re: Substitute Scott Walker for James Doyle. (Burke, Mary)

11/30/2011 557 Consent MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(Thompson, Eric)

11/30/2011

NOTICE of Electronic Filing Error re 557 Consent MOTION for Attorney Fees ; The Memorandum in Support should have been filed as a separate entry. This document does not need to be re−filed; Please refer to the policies and procedures for electronic case filing found at www.wied.uscourts.gov (blr) (Entered: 12/01/2011)

12/01/2011 558 ORDER signed by Judge Rudolph T Randa on 12/01/2011 granting 557 Motion for Attorneys' Fees and Expenses Per Stipulated Agreement. (cc: all counsel) (Koll, J) (Entered: 12/02/2011)

04/02/2012

Set Hearings: Telephone Conference set for 4/6/2012 09:30 AM (CT) before Judge Rudolph T Randa. The Court will initiate the call. (Zik, Linda)

04/06/2012 559 Minute Entry for proceedings held before Judge Rudolph T Randa: Telephone Conference held on 4/6/2012. Parties to file a Rule 60(b)(6) motion. (Zik, Linda)

04/12/2012

560 Unopposed MOTION to Modify Section I.D.9. of the Modified Settlement Agreement, Approve the Proposed Notice to the Class, and Approve the Proposed Plan for Dissemination of the Notice and Submission of Comments by Governor State of Wisconsin, Wisconsin Department of Health and Family Services. (Attachments: # 1 Exhibit Agreement to Amend Section I.D.9., # 2 Exhibit Second Modified Settlement Agreement, # 3 Exhibit Notice of Proposed Modification of Section I.D.9., # 4 Exhibit Proposed Plan for Dissemination of Notice and Submission of Comments, # 5 Exhibit Order Approving and Directing Distribution of the Notice, # 6 Certificate of Service)(Burke, Mary)

04/12/2012

561 BRIEF in Support filed by Governor State of Wisconsin, Wisconsin Department of Health and Family Services re 560 Unopposed MOTION to Modify Section I.D.9. of the Modified Settlement Agreement, Approve the Proposed Notice to the Class, and Approve the Proposed Plan for Dissemination of the Notice and Submission of Comments . (Burke, Mary)

04/15/2012 562 ORDER signed by Judge Rudolph T Randa on 04/15/2012 granting 560 Motion to Modify Settlement Agreement. (cc: all counsel) (Koll, J) (Entered: 04/16/2012)

04/16/2012

563 ORDER that the Court has reviewed and approves for distribution the contents of this Notice of Proposed Modification of Section I.D.9. of the Modified Settlement Agreement. Signed by Judge Rudolph T Randa on 04/16/2012. (cc: all counsel)(Koll, J)

05/30/2012

564 BRIEF in Support filed by Governor State of Wisconsin, Wisconsin Department of Health and Family Services re 560 Unopposed MOTION to Modify Section I.D.9. of the Modified Settlement Agreement, Approve the Proposed Notice to the Class, and Approve the Proposed Plan for Dissemination of the Notice and Submission of Comments . (Attachments: # 1 Text of Proposed Order Approving Modification of Section I.D.9. of the Modified Settlement Agreement)(Burke, Mary)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 56 of 57

05/30/2012 05/30/2012 05/30/2012
05/31/2012
05/31/2012 08/17/2012 08/17/2012 08/20/2012
11/27/2012 11/27/2012
12/04/2012
05/13/2013 05/13/2013
05/14/2013 01/21/2014 01/21/2014 01/21/2014 06/28/2016 01/29/2019 01/29/2019

565 AFFIDAVIT of Mary E. Burke . (Attachments: # 1 Exhibit Susan Conwell email)(Burke, Mary)
566 AFFIDAVIT of Arlene Happach . (Burke, Mary)
567 AFFIDAVIT of Rebecca Prudhomme . (Attachments: # 1 Exhibit Memorandum to Site Managers and Contractor Agencies, # 2 Exhibit Memorandum to Children's Court, # 3 Exhibit Memorandum to Guardians ad Litem, # 4 Exhibit Memorandum to Adversary Counsel, # 5 Exhibit Email from Martha Johnson, # 6 Exhibit Email from Lee Jaimes Jr., # 7 Exhibit Email from Lorrie Kessler, # 8 Exhibit Email from Michael Boeder, # 9 Exhibit Email from Liz Finn−Gorski)(Burke, Mary)
568 ORDER signed by Judge Rudolph T. Randa on 5/31/2012 APPROVING modification of Section I.D.9 of the Modified Settlement Agreement. Effective date for this modification is 7/1/2012. (cc: all counsel)(cb) (Entered: 06/04/2012)
569 SECOND MODIFIED SETTLEMENT AGREEMENT (cb) (Entered: 06/04/2012)
570 Consent MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Thompson, Eric)
571 BRIEF in Support filed by All Plaintiffs re 570 Consent MOTION for Attorney Fees . (Thompson, Eric)
572 ORDER signed by Judge Rudolph T Randa on 8/20/2012 GRANTING 570 Motion for Attorneys' Fees and Expenses Per Stipulated Agreement. (cc: all counsel) (cb) (Entered: 08/21/2012)
573 Unopposed MOTION for Attorney Fees Per Stipulated Agreement by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Thompson, Eric)
574 BRIEF in Support filed by All Plaintiffs re 573 Unopposed MOTION for Attorney Fees Per Stipulated Agreement . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thompson, Eric)
575 ORDER signed by Judge Rudolph T. Randa on 12/4/2012 GRANTING 573 Motion for Attorneys' Fees and Expenses Per Stipulated Agreement. (cc: all counsel) (cb) (Entered: 12/05/2012)
576 Unopposed MOTION for Attorney Fees Per Stipulated Agreement by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Thompson, Eric)
577 BRIEF in Support filed by All Plaintiffs re 576 Unopposed MOTION for Attorney Fees Per Stipulated Agreement . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thompson, Eric)
578 ORDER signed by Judge Rudolph T. Randa on 5/14/2013 GRANTING 576 Motion for Attorneys' Fees and Expenses Per Stipulated Agreement. (cc: all counsel) (cb)
579 Unopposed MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Thompson, Eric)
580 BRIEF in Support filed by All Plaintiffs re 579 Unopposed MOTION for Attorney Fees . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thompson, Eric)
581 ORDER signed by Judge Rudolph T. Randa on 1/21/2014 GRANTING 579 Motion for Attorney's Fees and Expenses per Stipulated Agreement. (cc: all counsel) (cb)
582 NOTICE of Change of Address by Eric E Thompson (Thompson, Eric)
583 LETTER from AAG Ann Peacock requesting caption update. (Peacock, Ann)
Docket Annotation − Caption of docket for Governor Scott Walker replaced with Governor Tony Evers pursuant to ECF No 583 . (lz)

Case: 2:93-cv-547 As of: 02/12/2019 11:29 AM CST 57 of 57