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M.D. v. Abbott

United States District Court, S.D. Texas, Corpus Christi Division

January 9, 2017

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


          Janis Graham Jack Senior United States District Judge.

         Before the Court are the Special Masters' Recommendations (docket entry #471)(the “Recommendations”) prepared at the Court's direction by Kevin Ryan and Francis McGovern (the “Special Masters”), the Objections filed by the State of Texas (the “State” or “DFPS”), and the Responses filed by the Plaintiffs. At the outset, the Court acknowledges the tireless and extraordinary work of the Special Masters in preparing the Recommendations and expresses gratitude for their service. The Court commends all parties to the litigation for their cooperation with the Special Masters. In particular, the State of Texas is acknowledged for its many efforts to furnish information, studies and data to the Special Masters. The Court is unable to enter a final order as further explained herein and therefore enters this interim order.

         I. Initial Statement

         The Court is aware of the numerous concerns expressed by the public regarding children in temporary managing conservatorship (“TMC”) and recognizes that more may be done to place these children back with their families. This class-action suit deals only with the children in permanent managing conservatorship (“PMC”), who are those children who have transitioned after 12 to 18 months from temporary managing conservatorship into permanent managing conservatorship. The history of PMC children is outlined in the Memorandum Opinion and Verdict of the Court entered December 17, 2015. (D.E. #368) (the “2015 Order”). A final order cannot be entered because all required information is not yet available nor have measures to correct previous constitutional deficiencies found by the Court been implemented as discussed below. Further studies and consultations between the Special Masters, the Court, and the State are necessary before a final order can be entered.

         II. Background and Procedural History

         Plaintiffs are minor children in the Permanent Management Conservatorship (“PMC”) of the Texas Department of Family and Protective Services (“DFPS”). Plaintiffs filed suit through their next friends on March 29, 2011, seeking injunctive relief against Rick Perry, Governor of Texas; Thomas Suehs, Executive Commissioner of the Texas Health and Human Services Commission;[1] and Anne Heiligenstein, Commissioner of DFPS (collectively “Defendants”), in their official capacities.[2] (D.E. 1). Shortly thereafter, Plaintiffs filed a Motion for Class Certification. The Court granted their motion, holding that the requirements of Fed.R.Civ.P. 23 had been met. (D.E. 49).

         Defendants filed an interlocutory appeal of the class certification to the Fifth Circuit Court of Appeals pursuant to Fed.R.Civ.P. 23(f). (D.E. 63). While the appeal was pending, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). In light of Wal-Mart, the Fifth Circuit vacated the class certification order and remanded the case. M.D. ex rel. Stukenberg v. Perry (M.D. I), 675 F.3d 832 (5th Cir. 2012). Plaintiffs filed a second Motion for Class Certification in October 2012. (D.E. 160). After a three-day hearing in January 2013, the Court found that the requirements of Fed.R.Civ.P. 23(a), as explained in Wal-Mart, were satisfied. The Court certified a General Class and three subclasses on August 27, 2013. M.D. v. Perry (M.D. II), 294 F.R.D. 7 (S.D. Tex. 2013). The certified classes are defined as follows:

a. General Class: all children now, or in the future, in the Permanent Managing Conservatorship of the State of Texas;
b. Licensed Foster Care Subclass: all members of the General Class who are now or will be in a licensed or verified foster care placement, excluding verified kinship placements;
c. Foster Group Home Subclass: all members of the General Class who are now or will be in a foster group home; and
d. Basic Care General Residential Operation Subclass: all members of the General Class who are now or will be in a general residential operation and who are or will be receiving solely non-emergency, basic childcare services.

Id. at 67. The Court denied certification of a fourth subclass for children in unverified kinship placements because it lacked adequate representation. Id. at 63. Defendants filed an untimely Petition for Permission to Appeal the Class Certification Order, which the Fifth Circuit dismissed on November 19, 2013. M.D. ex rel. Stukenberg v. Perry, 547 F. App'x 543 (5th Cir. 2013).

         The Court entered its Memorandum Opinion and Verdict of the Court on December 17, 2015. (D.E. #368) (the “2015 Order”). The State of Texas appealed the Court's Original Order and requested a stay pending appeal. This Court denied the State's request for a stay pending appeal. On March 21, 2016, The Fifth Circuit Court of Appeals also denied a stay pending appeal. The parties did not agree on a special master and therefore, on March 21, 2016, the Court held a hearing to appoint a Special Master. On that same date the Court entered its Appointment Order (D.E. #379) naming co-Special Masters Francis McGovern and Kevin Ryan pursuant to Rule 53, F.R.Civ.P. Thereafter, the Court conducted numerous telephonic status conferences with counsel for Plaintiffs, the State of Texas, and the Special Masters. On November 4, 2016, the Special Masters filed their Report and Recommendations (docket #471)(the “Recommendations”).

         The State filed its Objections to Special Masters Recommendations on November 21, 2016 (docket #479). The Plaintiffs did not object to the Recommendations (see, D.E. #478). On December 8, 2016, Plaintiffs filed their Response to Defendants' Objections to Special Master Recommendations (D.E. #484). The Court conducted a telephone conference on December 21, 2016, to hear discussion and clarification on several issues raised by the responses to the Recommendations. Thereafter, Defendants filed their Advisory on December 29, 2016 (D.E. #492), to which Plaintiffs responded on January 3, 2017 (D.E. #494). An additional Advisory was filed by the Special Masters on January 4, 2017. (D.E. #496)

         III. The State's Recognition of a Broken System

         The State objected to every recommendation of the Special Masters. The Court is aware and respects the State's inherent right to protect its legal objections to actions taken by this Court. Moreover, the Court has been made aware through various public statements by State actors that many good-faith attempts are being made to improve services to children in permanent managing conservatorship. Further, the Court is aware that the State has expressed many of the same concerns that were expressed in the Court's Original Order, making it clear that the State has a firm understanding of the dire straits of children in the foster care system. For instance, the Court takes judicial notice[3] that on September 6, 2016, Defendant Commissioner Whitman submitted a Legislative Appropriation Request for the next two fiscal years. In his opening Administrator's Statement, he admits the inadequacy of available placements:

“For a variety of reasons, including population growth, a shift in the needs of children who are entering the foster care system, and ever-increasing health care costs, Texas lacks adequate, high-quality foster care capacity, particularly for highneeds children. Many children suffer from trauma and mental illness, emotional/behavioral health problems, or are medically fragile from what they have experienced. Our system must be strengthened to take special care of these children who through no fault of their own are now the state's responsibility.”

--Legislative Appropriations Request, Submitted to The Governor's Office of Budget, Planning & Policy & the Legislative Budget Board, for Fiscal Years 2018 and 2019 (“LAR 2018-19”), Administrator's Statement at 5 (p. 16/837 of the pdf), available at DFPS/Financial and Budget Information/LAR/FY18-19/documents/18-19 LAR.pdf.

         The Court takes judicial notice[4] that on October 12, 2016, Defendant Governor Abbott, along with Lt. Governor Patrick and Speaker Straus, wrote to Commissioner Whitman complaining of serious problems at DFPS. “We would be remiss if we did not acknowledge that quality capacity should be a high priority. It is unacceptable that children are sleeping in Child Protective Services offices. We also will not tolerate inferior residential foster care operations.

         The state's residential providers must be held to the highest standards while caring for our most vulnerable or no longer operate in our system.” Letter from Gov. Abbott, et al., Oct. 12, 2016, at 2, available at Whitman 10122016.pdf. On October 20, 2016, Defendant Whitman replied to the joint letter from Defendant Abbott, Lt. Governor Patrick, and Speaker Straus, noting that “CPS has seen an increase in the number of children without placement.” He continued:

“The result of this capacity issue is that the agency must enter into expensive child-specific contracts with providers that are not the best setting for children's needs, or have children spend extended time sleeping in CPS offices, hotels, or emergency shelters.”

--Letter from Commissioner Hank Whitman to Gov. Abbott, et al., Oct. 20, 2016, at 5, available at

         Further, the Court takes judicial notice[5] that on October 26, 2016, Commissioner Whitman testified before the Senate Committee on Finance: “Like face-to-face visits, the Agency has struggled to find placements for some of our higher needs children.” Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 3:05:42-3:06:00, available at http://www.senate. /commit/c540/c540.htm. He further conceded, “[b]ecause of this, some children have had to spend the night in CPS offices, ” and he passionately exclaimed: “This is unacceptable to me.” Id. at 3:05:51-3:05:54.

         The Court takes judicial notice[6] that on November 24, 2016, Department of Family & Protective Services spokesperson Shari Pulliam wrote, “[w]e are desperate for foster parents all across the state.” And “Children are being placed outside the county they are removed from every day, because we just don't have the foster care placements in their own counties, ” she continued. G. Evans, “Local, State Officials Say Placement Need For Foster Care Rises, ” Longview News-Journal, Nov. 27, 2016 (quoting email received from Ms. Pulliam), available at On September 6, 2016, in a Legislative Appropriations Request, Commissioner Whitman conceded that DFPS needs to hire hundreds of additional conservatorship caseworkers. LAR 2018-19, Administrator's Statement, at 4 (p. 15/837 of pdf), available at DFPS/Financial and Budget Information/LAR/FY18-19/documents/18-19 LAR.pdf. He submitted that the additional caseworkers are needed to allow caseworkers to see children “timely” and “more often.” Id. Unfortunately, his request is still inadequate as it would leave caseloads at a level far in excess of that which is needed to ensure that children do not face an unreasonable risk of harm. Id. (noting that if his request for additional funds is fulfilled, average caseloads per worker would be reduced to 25.47).

         The Court takes judicial notice[7] that on October 26, 2016, Commissioner Whitman admitted to a Senate Committee that “when caseworkers are overworked, mistakes will happen.” Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 3:04:15, available at http://www .senate.state.tx. us/75r/senate /commit/c540 /c540.htm. He went on to say that conservatorship caseworkers are “stretched…with increasing need.” Id. at 3:05:26-3:05:31. He added with detailed emphasis: “I know these caseworkers have a tough job.... The pay is not worth beans.... And, they are overworked. Something has got to give.” Id. at 3:35:50, 3:36:01-3:36:19.

         Further, the Court takes judicial notice[8] that on October 27, Commissioner Whitman wrote to Chair Jane Nelson of the Senate Finance Committee: “A glaring cause of this crisis is that our workers are outnumbered by the opponent -child abuse and neglect.” Letter from Commissioner Whitman, Oct. 27, 2016, available at http://www. /scanned/archive /2016/33026.pdf. Because “Texas children cannot wait for the next biennium to begin, in recent weeks, Governor Abbott, Lt. Governor Patrick, and Speaker Straus directed me to identify staffing needs necessary on an urgent basis to address the most critical needs. In response, I submitted to you last week a request to hire a portion of those workers now.” Id. In the same letter, he said “bringing in new staff” was “one component of ensuring child safety, ” but “I also want to make clear that bringing in new staff is just one component of ensuring child safety. The agency must continue efforts to retain our caseworkers.” Id. He pointed out that improved program training would help, but “will not end the high turnover at CPS.” Id. Among other reforms, “providing a salary increase will have a positive impact on retention, ” which in turn could help save the agency money in the long run. Id. (a salary increase “may reduce our staffing exceptional item in the FY2018-19 [LAR]”).

         The Court takes judicial notice[9] that Commissioner Whitman's letter was consistent with his testimony, given the day before, to the Senate Committee on Finance. He emphasized, among other key points, that there was a turnover emergency at DFPS. Hearing before the Texas Senate Committee on Finance, Oct. 26, 2016, at 4:07:22 - 4:09:12. He acknowledged, in reply to a question from Senator West regarding caseworker turnover, that there is “an emergency in [DFPS] surrounding compensating caseworkers” and that the State has “to do something about that today”. Id.

         The Court takes judicial notice[10] that DFPS's most recent Legislative Appropriations Request reflects that if the agency's request for additional funding is fulfilled, average caseloads per worker would be reduced to 25.47. LAR 2018-19, Administrator's Statement, at 4 (p. 15/837 of the pdf), available at DFPS/Financial and Budget Information/LAR/FY18-19/documents/18-19 LAR.pdf. On April 11, 2016, Defendant Abbott issued an official statement addressing foster care. “The status quo at CPS is unacceptable. Our children are too important to suffer through the challenges they've faced. I've insisted on overhauling a broken system….” Governor Abbott, Press Release, Apr. 11, 2016, available at

         Further, the Court takes judicial notice[11] that on October 12, 2016, Governor Abbott, Lt. Governor Patrick, and Speaker Straus wrote to Commissioner Whitman. In their letter, in which they addressed numerous systemic deficiencies, they expressed deep “concerns” that children at risk of abuse and neglect are not being seen in a timely manner and that this “exacerbates backlogs throughout the entire system, ” leaving children in dangerous situations. Letter from Gov. Abbott, et al., Oct. 12, 2016, available at Whitman 10122016.pdf. The letter went on to say: The “increasing number of reports of abuse and neglect are beyond what the agency's current workforce can support, ” they continued, noting that “additional resources are required ... to protect our children who are in harm's way.” Id. They directed Whitman to “immediately” undertake numerous actions, including hiring and training more special investigators, and “a strategic hiring and training schedule, which will ensure DFPS is staffing an increased number of the necessary caseworkers to account for the increase in workload and system backlog of serving children and families.” Id. “Quality capacity should be a high priority, ” they continued, emphasizing that it is “unacceptable” for children to be sleeping in CPS offices, and that “inferior” residential foster care operations continue to exist. Id. Finally, they concluded on a somber note that underlined the urgency of the situation: “We have much work to do; and while we wish we could give you and your team more time to do so, too much is at stake. We must act now.” Id.

         The Court takes judicial notice[12] that on October 20, 2016, Defendant Whitman responded by letter to Defendant Abbott, noting the shortage of CVS caseworkers and inadequate placement array: “Texas children remain at risk. This is unacceptable.” Letter from Commissioner Whitman, Oct. 20, 2016, at 1, available at /2016/32952.pdf. On October 26, 2016, while Commissioner Whitman was testifying before the Senate Committee on Finance, Senator Kirk Watson asked: “[a]re you going to fight what the Special Masters say you should do?” After some back and forth, Commissioner Whitman answered: “I am personally not going to fight it.” Hearing Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at 4:23:16 - 4:25:10, available at /c540.htm. At the hearing, DFPS General Counsel Trevor Woodruff testified that DFPS would attempt to address all the foster care issues “with all due speed.” Id. at 4:35:00 - 4:36:30. Speaking more generally of the risks children face, he continued: “To this point, Senators, the children of this state are at risk.” Id. at 3:07:32. For emphasis, he added: “When I walked into the whole system, it stunk bad.” Id. at 3:31:49. On October 27, 2016, Defendant Whitman wrote to Chair Jane Nelson of the Senate Finance Committee: “I have been on the job as commissioner of DFPS for almost six months. In that time, I have discovered a crisis in the making for the past decade or more.” Letter from Commissioner Whitman, Oct. 27, 2016, available at http://www.lrl.state. /2016/33026.pdf.

         The Court takes judicial notice[13] that on November 22, 2016, literally the day after Defendants filed their Objections, Defendant Abbott issued a public statement in which he spoke, in no uncertain terms, of the risk that all children in the state's custody face:

“Texas children in the child protective system continue to be at risk, and we must not delay providing the critical resources and support that CPS urgently needs.”

--Julie Chang, “State Rejects Court-Ordered Proposal to Fix Foster Care System, ” Austin American-Statesman, Nov. 22, 2016 (quoting Statement of the Governor), available at

         The Court recognizes the importance of State intervention in abusive family situations which results in the State assuming custody of children. Yet how much more tragic is it for those same children to be further abused while in State custody. Despite the State's recognition of the problems as recited above, the State objected to every recommendation proposed by the Special Masters.

         IV. The State's Objections to the Recommendations

         In the State's Objections to the Recommendations, it reiterates prior arguments previously raised. For instance, the State objects that many of the Recommendations are already in place as policies. However, policies not practiced are insufficient to address the constitutional deficiencies found in the Court's 2015 Order. Even if the State has policies in place which could remedy the constitutional deficiencies, Plaintiffs' claims are not mooted and the Court is not deprived of its remedial power. See, e.g. Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 189 (2000)(“a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”). The burden on a party to show that their voluntary conduct has mooted the case is strict. U.S. v. W.T. Grant Co., 345 U.S. 629, 633 (1953)(“the burden which lies on the party asserting mootness “is a heavy one”). The Court cannot rely on the State's representation that it has policies in place because to do so would leave the State free to return to its old ways. Friends of the Earth, supra at 189.

         The Fifth Circuit Court of Appeals likewise recognizes the heavy burden defendants must carry to establish mootness based on their purported voluntary cessation of illegal conduct. See, e.g. Pederson v. Louisiana State University, 213 F.3d 858, 875 (5th Cir. 2000)(“We will not second-guess the district court's reasoned judgment by declaring this issue moot when Appellees have failed to demonstrate that their Title IX effective accommodation violations will not recur.”); K.P. v. Le Blanc, 729 F.3d 427, 438-39 (5th Cir. 2013)(rejecting defendants' contention of no ‘ongoing' violation of federal law and finding defendants' challenged action reasonably subject to recurrence). The State's long history of conducting and commissioning studies without any measurable improvement to the well-being of children in foster care belies their argument that they have plans in place to address the constitutional deficiencies found by the Court.

         The State generally objects to the Recommendations that DFPS create plans to address constitutional deficiencies as shifting the burden to the State. This objection is overruled. The crux of this case is that the burden has always been on the State to provide constitutional safeguards to children over whom they have custody. The refusal by the State to accept this burden despite over 20 years of studies conducted by the State or commissioned by the State, all of which found these same deficiencies, brought us to this point. DFPS has the burden to protect the children in its care and custody from unreasonable risk of harm. (See, 2015 Order at p. 15) For over 20 years all studies conducted or commissioned by DFPS or by other State actors recommended many of the same reforms based on the same deficiencies found by this Court, yet the problems still exist. The Court's Original Order made it clear that Plaintiffs proved their case as to constitutional deficiencies. All other objections are not yet ripe or are more properly addressed in the Court's final order.

         V. The Special Masters' ...

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