Filed Date: March 29, 2011
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This class action (previously, M.D. v. Perry) involving long-term foster care in Texas was filed on March 29, 2011, in the U.S. District Court for the Southern District of Texas. The plaintiff class of children in long-term foster care was represented by private counsel and Children's Rights, Inc.; they sought declaratory and injunctive relief, claiming that the state failed to protect foster children from systemic harm.
The complaint alleged that defendants' frequent moves of the foster care children between placements was harmful; that the state placed kids in inappropriate congregate settings, failed to protect them from abuse and neglect in state custody, denied them necessary services, separated them unnecessarily from their siblings and deprived them of family visitation, and generally failed to find them permanent families or to raise them appropriately so that they were equipped to live independently once they aged out of foster care. All this, the plaintiffs said, was due to understaffing and mismanagement, and violated Substantive Due Process, Procedural Due Process, and the First Amendment associational rights of the plaintiff class.
The requested relief included regulation of caseloads, imposition of professional licensing standards, and the like. The plaintiffs also sought appointment of a monitor.
The plaintiffs filed their class certification motion a week after the complaint. On June 5, 2011, the District Court (Judge Janis Graham Jack) granted the motion for class certification. The state appealed.
On March 23, 2012, citing the intervening Supreme Court precedent of Wal-Mart v. Dukes, the Court of Appeals for the Fifth Circuit (Garza, J.) held that the district court had erred by failing to conduct the "rigorous analysis" required by Fed. R. Civ. P. 23(a)(2), and that the district court abused its discretion by certifying a class that lacked cohesiveness under Rule 23(b)(2). The case was remanded for reconsideration of the class application under the appropriate standard. 675 F.3d 832 (5th Cir. 2012).
The plaintiffs filed a second motion for class certification in October 2012. After a three-day hearing in January 2013, the court found that the requirements of Rule 23(a), as explained in Dukes, were satisfied. On August 27, 2013, the court certified a general class (all children in the "permanent managing conservatorship" in Texas) and three subclasses (children in a licensed foster care placement; children in foster group homes; and children receiving basic childcare services). 294 F.R.D. 7 (S.D. Tex. 2013). Defendants appealed, but the Fifth Circuit dismissed their appeal as untimely on November 19, 2013, because defendants filed a day too late. 547 F. App'x 543 (5th Cir. 2013).
The case proceeded to trial in December 2014. For two weeks, the parties presented evidence to the district court. Following the trial, on December 17, 2015, the district court ruled for the plaintiffs, declaring that Texas must make targeted changes to its foster care system. The court found that the state put kids at risk because of high caseloads, dangerous foster group homes, inadequate investigations into abuse and neglect reports and a lack of placement options. The court mandated an immediate end to the "unsafe placement" of children, including ceasing assigning children to foster group homes that lacked 24-hour awake-night supervision. The court retained jurisdiction to issue orders as necessary to remedy the constitutional violations described in the order and opinion. 2015 WL 9244873 (S.D. Tex. Dec. 17, 2015).
The state asked the court to stay the order, but the court denied this request. The state appealed to the Fifth Circuit, which also denied the state's request on March 21, 2016.
Also on March 21, 2016, the district court appointed two experts as special masters, charged with overseeing the reform of Texas' foster care system. After receiving the special masters' recommendations and subsequent objections to those recommendations, the court entered an interim order on January 9, 2017. The court found that further research was needed before it could issue a final order. The interim order required the special masters to work with the state so as to implement plans relating to monthly visits between caseworkers and children, a centralized database with key information about the children, a 24-hour hotline for calls reporting child abuse or neglect, recommendations for children who age out of the system, appointment of attorneys for the children, the availability of children's healthcare records, a reduction in caseloads for caseworkers and in caseworker turnover, identifying single-child homes, reporting and monitoring child abuse and neglect, and placement.
On January 19, 2018, the court adopted in part the special masters' implementation plan, finding that the state had done little to assist the special masters in devising recommendations or to reform the foster care system. The recommendations focused on the aforementioned categories, providing specific policies and practices for the state to implement. The state immediately appealed, and the Fifth Circuit granted an administrative stay while the appeal was pending.
A three-judge panel consisting of Judges Higginbotham, Smith, and Clement heard the case for the Fifth Circuit. They issued an opinion on October 18, 2018 affirming in part, reversing in part, and remanding. 907 F.3d 237. The central issue on remand stemmed from the district court's permanent injunction being overly broad, and they were instructed to modify it to be consistent with their opinion.
On November 20, 2018, after parties had been given the opportunity to submit briefs addressing the issues on remand, the court issued its amended injunctive order. The state appealed the modified injunction to the Fifth Circuit on November 28, 2018.
On appeal, the same three judge panel was assigned to the case. On July 8, 2019, after reviewing the modified injunction, they affirmed in part, reversed in part, and vacated the order. 929 F.3d 272. They provided their own modifications to the injunction, and remanded to the district court for implementation without further changes. Monitoring and reporting resumed in compliance with the amended injunction.
The implementation of the injunction resulted in continuous litigation between the parties regarding monitoring requirements, attorneys' fees, and contempt of court. On November 5, 2019, the district court issued an order reaffirming 24-hour awake-night supervision for placements with more than six children, and prohibited the state from moving any child from their current placement unless an application was made to the court prior to the proposed discharge. After a clarification hearing on November 6, 2019, the court issued another order holding defendants in civil contempt of court for violating this court's order to provide 24-hour awake-night supervision. 418 F.Supp.3d 169. The court ordered a sanction of $50,000 per day starting November 8, 2019 for seven business days, then $100,000 per day until defendants reach compliance.
A month later, on December 5, 2019, defendants appealed once more to the Fifth Circuit for review of the order prohibiting a change in placement, as well as the sanctions stemming from that order. (USCA No. 19-41015). Litigation progressed as the parties prepared for the appeal to be heard.
In July of 2020, the plaintiffs filed a motion in the district court for an order to show cause as to why defendants should not be held in contempt. The defendants filed a motion in opposition with supporting supplements, but their filings were struck from the record for being untimely. On July 29, the plaintiffs’ motion for the Order to Show Cause was granted, and a hearing was scheduled for September 3, where the court ordered that the State and Department of Family and Protective Services (DFPS) were to be held in contempt.
Circuit Judges Barksdale, Elrod and Ho heard the December 2019 appeal for the Fifth Circuit, and in an order issued on November 9, 2020, reversed the district court’s orders and remanded for proceedings consistent with the Fifth Circuit’s opinion issued in July 2019. 977 F.3d 479. They found that the district court’s prohibition on placement alterations constituted a modification of the amended injunction, in violation of the July 2019 appellate order. The opinion did not address the November 2019 order holding defendants in contempt, nor did it address the sanctions levied against them as a consequence.
On December 18, 2020, the district court issued an opinion detailing the September order holding defendants in contempt. 509 F.Supp.3d 683. Defendants were held in contempt on Remedial Orders 2, 3, 5, 7, 10, 22, 25, 26, 27, 29, 31, 37, and B5. Defendants were ordered to file sworn certification of compliance with Order 22 within fifteen days and the remaining orders within thirty days. If defendants failed to certify compliance with Order 22 within the allotted time frame, they were to pay a fine of $75,000.00 per day beginning the sixteenth day, until such time they certified compliance.
The process of implementing reforms remained contentious and proceedings continued. On January 11, 2022, after a hearing, the district court ordered DFPS and the Health and Human Services Commission (HHSC) to form an interagency committee. HHSC and DFPS were ordered to develop a plan within 90 days to expand mental health care services to children and bring back children placed out-of-state. The agencies were also ordered to provide a cost analysis of placement in Texas for high needs children.
As litigation continued, the district court held another hearing on March 30, 2022 to address incidents at a state-licensed shelter for sex trafficking victims. A former employee was accused of selling nude pictures of two girls residing at the shelter. Judge Jack announced that she would ask the court-appointed monitors to make a criminal referral to the U.S. Attorney of the Western District of Texas for an investigation into the possible production and distribution of child pornography and sex trafficking at the shelter in question.
Monitors continued to provide reports as part of the agreed upon reforms. A hearing was held on January 27, 2023, following the monitors’ fifth report. The monitors found that children in the state's care were still being exposed to harm, and that the department still wasn’t adequately responding to abuse allegations. There was an increase in dropped calls for calls coming in to report suspected neglect or abuse, and not a high enough percentage of cases involving kids in high-priority situations being opened within 24 hours of the report, standards set by the November 2018 amended injunctive order. Another area of discussion included Children Without Placements (severe cases that create a barrier to providing placement). The court said if the department did not drop to zero cases of children without placements by June, the court would entertain a contempt of court motion from the plaintiff. Additional problems the court highlighted were a low percentage of children in custody with access to phones, and a lower percentage of children who were both familiar with the Foster Care Bill of Rights and had a known point of contact if they needed to report an incident. These issues had been left pending far too long, the court stated, as they were supposed to have been addressed within 30 days of an order issued almost five years ago. The court also demanded a list, within 30 days, of all children in permanent custody who were pregnant, their ages and whether they became pregnant while in foster care.
Another status conference was held on April 12, 2023. The hearing centered around the monitors' reports on site inspections that they made at 14 residential facilities between December 2021 and December 2022. The inspections revealed a pattern of staff mismanagement of how medications and psychotropic drugs were administered. According to the monitors' reports, children were given prescriptions that violated the state’s guidelines for using drugs for foster children. In several instances, medication was prescribed that wasn’t recommended for children. And when children were prescribed four or more psychotropic drugs at the same time, what should have been mandatory review of the children’s clinical status wasn’t completed in 28% of cases. The monitors also identified errors in medication logs, failures to refill medications in a timely manner, missed doses, miscounted medications and unfollowed psychiatric orders. The court demanded a specific remedy for the administration of these drugs.
Per the monitors' reports, there were also several instances in which children who suffered sexual abuse were placed in bedrooms with youth that had a history of sexual aggression. The monitors also raised concerns about the intake of and investigations into reports of abuse, neglect and exploitation. The monitors reported a discrepancy in the information staff, witnesses and victims shared with DFPS investigators, and the summaries of the interviews in state records. The agency opened investigations into several of the facilities following the monitors’ reports, but neither the DFPS commissioner nor her staff cited any disciplinary action that had been taken thus far.
On May 1, 2023, the court held a virtual status conference after DFPS requested more details regarding the monitors’ invoice and what they had billed for. An attorney for DFPS said the department was concerned about the number of hours the monitors were billing, and whether they were using the hours to do work outside of investigating the specific remedial orders they were assigned to investigate. The court highlighted a number of points in the monitors' reports where the team reopened investigations the department had closed, uncovered new information the department had not previously disclosed and even shut down multiple facilities for issues that had persisted under the state's watch. During the second portion of the hearing, the court addressed the state's separate filing objecting to the medication mistreatment findings in the monitor's report. After going through multiple examples and reviewing the language of specific remedial orders, the court found that discrepancies and mishandling of medication for children in the state's care fell in the "abuse and neglect" category of the remedial orders, and any attempt from the state to avoid providing that information to the monitors would be rejected.
As of May 2023, the monitors were due to submit another report in June 2023, and another hearing had been set for June 27, 2023.
Alice Liu (9/27/2012)
Jessica Kincaid (4/19/2016)
Virginia Weeks (3/16/2018)
Alex Moody (4/17/2020)
Simran Takhar (3/20/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4398545/parties/md-v-abbott/
Almonrode, Patrick S. (New York)
Annino, Paolo G. (Texas)
Barber, Philip (New York)
Bartosz, Michael [Sara Michelle] K. (New York)
Albright, Thomas A. (Texas)
Clement, Edith Brown (Louisiana)
Higginbotham, Patrick Errol (Texas)
Jack, Janis Graham (Texas)
Smith, Jerry Edwin (Texas)
See docket on RECAP: https://www.courtlistener.com/docket/4398545/md-v-abbott/
Last updated Nov. 17, 2023, 10:59 a.m.
State / Territory: Texas
Filing Date: March 29, 2011
Case Ongoing: Yes
Plaintiffs are the class of Texas children in long-term foster care. Subclasses involve kids in licensed foster care, foster group homes, larger-scale institutions, and in kinship foster care.
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2015 - None
Content of Injunction:
Jails, Prisons, Detention Centers, and Other Institutions:
Affected Sex or Gender: