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M.D. v. Abbott

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

November 7, 2019

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

          ORDER

          Janis Graham Jack Senior United States District Judge

         On November 5th, 2019 the Court held a hearing for Defendant GREG ABBOTT, in his official capacity as Governor of the State of Texas, COURTNEY PHILLIPS, in her official capacity as Executive Commissioner of the Department of Family and Protective Services of the State of Texas, and TREVOR WOODRUFF[1], in his official capacity as Acting Commissioner of the Department of Family and Protective Services of the State of Texas, to Show Cause Why They Should not be Held in Contempt. (D.E. 695). The Court hereby holds the Defendants in contempt for failure to comply with the Court's Order affirmed by the 5th Circuit's Mandate on July 30, 2019, and effective the same day, as quoted below:

"The Defendants shall immediately cease placing PMC children in placements housing more than 6 children, inclusive of all foster, biological, and adoptive children, that lack continuous 24-hour awake-night supervision. The continuous 24-hour awake-night supervision shall be designed to alleviate any unreasonable risk of serious harm." (D.E. 606, p. 12).

         For this failure, the Court imposes a fine of $50, 000.00 a day beginning Friday, November 8, 2019, continuing for seven business days until November 20, 2019, when the fine shall increase to $100, 000.00 dollars a day payable to the Clerk of Court at:

Clerk, U.S. District Court
Attn: Finance
1133 N. Shoreline Blvd., Ste. 208
Corpus Christi, TX 78401[2]

         Further, The Defendants are to be fined until they follow and satisfy the Court's Order.

         I. Jurisdiction

         The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         II. Factual and Procedural History

         The procedural history of this case is adequately described in this Court's December 17, 2015 Memorandum Opinion and Verdict, January 2018 Order, and November 2018 Order. (D.E. 368; D.E. 559; D.E. 606). Subsequent to the November 2018 Order, Defendants appealed to the Fifth Circuit. (D.E. 607). On July 30, 2019, the Fifth Circuit remanded the Order for implementation, affirming in part and modifying in part the remedial orders of this Court. See generally, M.D. v. Abbott, No. 18-40057 (5th Cir. 2019). On October 18, 2019, the Plaintiffs filed a motion to show cause why defendants should not be held in contempt for failure to comply with certain Court orders. (D.E. 695). The Court granted this motion. (D.E. 697). A hearing on the matter was then held on November 5th, 2019.

         III. Findings of Fact and Conclusions of Law

         A. Legal Standards for Civil Contempt

         The elements of civil contempt are "(1) that a court order was in effect, and (2) that the order required certain conduct by the respondent, and (3) that the respondent failed to comply with the court's order." In re Bradley, 588 F.3d 254, 264 (5th Cir. 2009). "The power to punish for contempt is an inherent power of the federal courts and ... it includes the power to punish violations of their own orders." Id. "Contempt is committed only if a person violates a court order requiring in specific and definite language that a person do or refrain from doing an act." Martin v. Trinity Industries, Inc., 959 F.2d 45, 47 (5th Cir. 1992).

         If the Court finds a violation of its orders, it can issue a civil contempt sanction. "The district court has broad discretion in the assessment of damages in a civil contempt proceeding." Am. Airlines, Inc, 228 F.3d at 585 (internal quotation marks and citations omitted). The Court takes into account (1) "the character and magnitude of the harm threatened by the continued contumacy," (2) "the probable effectiveness of [the] suggested sanction in bringing about the result desired," and (3) "the amount of [the party in contempt's] financial resources and the consequent seriousness of the burden to that particular defendant." See United Mine Workers of Am., 330 U.S. at 303-04, 67 S.Ct. 677.

         B. Failure to Provide 24-Hour Awake-Night Supervision

         In this case, it is clear that: (1) a court order was in effect, (2) the order required certain conduct, and (3) the Defendants failed to comply with this court order. The Court finds that Defendants are to be held in contempt.

         1. 24-Hour Awake Night Supervision Order Is in Effect

         There is no dispute that this Court's order was in effect when the Fifth Circuit issued the mandate on July 30, 2019 and was to be implemented the same day, immediately per this Court's order. See Generally M.D. v. Abbott, No. 18-40057, p.3-5 (5th Cir. July 30, 2019). Therefore, the first element of civil contempt is satisfied.

         2. 24-Hour Awake Night Supervision Required Certain Conduct

         There is also no dispute that this Court's order clearly required certain conduct, namely, it directed the Defendants to "immediately cease placing PMC children in placements housing more than 6 children, inclusive of all foster, biological, and adoptive children, that lack continuous 24-hour awake-night supervision." (D.E. 606, p. 12). This order could not be more clear, direct, and urgent in its requirements. Throughout this litigation, especially after the July 30, 2019 mandate, not one of the Defendants have ever challenged this order's clarity. There has been no complaint found on the record for the Defendants' lack of ability to comply. But still, even today, they have not yet complied with this clear order. Thus, the second element of civil contempt is satisfied.

         3. Defendants Have Failed To Comply With This Court's Order

         Much like the first two elements of civil contempt, there is simply no dispute that the Defendants have failed to comply with this order. It is clear from the record that Defendants have admitted and confessed that they have not stopped placement of PMC children in facilities that lack continuous 24-hour awake-night supervision. On October 9, 2019, the Defendants confessed in a conference call that not all placements in Texas housing more than six children have 24-hour awake night supervision and did not have any requirements of 24-hour awake supervision at the time of trial for any PMC placement. (D.E. 679, pp.8-9). This admission came as a surprise and as a shock to everyone in that conference: the Court, Plaintiffs' counsel, and the Monitors. Id. Even at the show cause hearing, Ms. Kristene Blackstone, the associate commissioner for Child Protective Services ("CPS") who replaced Lisa Black, was unable to testify or certify that any GRO had 24-hour awake supervision. (D.E. 724, p. 18). She further testified that while she had notified the GROs after the July 2019 mandate issued to propose plans to implement 24-hour awake supervision, she had not verified they had done so. (D.E. 724, p. 17). Moreover, the Court-appointed Monitors report that during their unannounced visits to 15 Cottage Home campuses, a form of GRO, across Texas from October 14, 2019 to October 31, 2019, "Only one of the visited campuses has on-site 24-hour awake-night supervision staff, and that is only in one cottage." (D.E. 711, p.12). Time and again the Monitors, during their unannounced visits in October 2019, documented consensual and nonconsensual sexual activity in the GROs they investigated that were without 24-hour awake supervision. (D.E. 711, p. 14) ("Reviews of incident reports and investigations at Cottage Home campuses documented in CLASS reveal that the Jack-and-Jill bathrooms have allowed some children to access rooms at night, with reports of both consensual and non-consensual sexual contact between youth."). Therefore, the third element of civil contempt is clearly satisfied.

         i. Defendants' Misrepresentations Throughout This Case Before This Court and The Fifth Circuit Have Fueled Non-Compliance of This Order - Timeline of Events From Lisa Black's False Testimony To Defendants' Confession That Not AH GROs Have 24-Hour Awake-Night Supervision

         Equally significant in Defendants' noncompliance which satisfies the third element of civil contempt, is that throughout this litigation, the Defendants have misrepresented and continually relied on false testimony noting that only a certain type of foster care facilities, foster group homes, did not have 24-hour awake-night supervision at the time of trial, while all other GROs already had this. In their response to the Motion to Show Cause, Defendants alleged that "No one, including either defense or Basic GRO subclass counsel, caught the error and brought it to the attention of the Court" and by noting that the fact that "Ms. Black testified incorrectly first came to light for Defendants when the Court raised it in a telephone conference on October 9, 2019." (D.E. 712, p.10). The Court did indeed first raised the issue of Ms. Black's false testimony on the October 9, 2019 telephone conference. (D.E. 679, pp.7-8). The Court finds, given the timeline of events discussed below, that this statement strains credulity.

         a. Defendants testified at trial that all group facilities except for foster group homes have 24-hour supervision

         On December 2, 2014, Defendants' witness, Lisa Black, then assistant commissioner of CPS, testified that all group facilities except foster group homes have 24-hour awake-night supervision. (D.E. 300, pp.60-62). The below is the actual quotation from her testimony:

Q All the other group homes in the State of Texas, 13 and above, have special protections, don't they, for group settings?
A The minimum standards are different.
Q And those group protections in the State of Texas require 24/7 supervision, in other words, caretakers that are awake all the time.
A Yes.
Q It doesn't mean you have to have a caretaker that's awake for 24 hours, but you have to have one caretaker that's awake at any one time, true?
A Yes.
Q And the reason ~ that's what all the other group settings in the State of Texas have. But you don't have that for foster group homes, do you, Ms. Black?
A No.
Q So you can have 12 children in a foster group home and have the caregivers sound asleep every night of the week, can't you?
A Yes.
Id. (Emphasis Added).

         What is more egregious is that when Lisa Black made this statement, not one of Defendants' counsel, then-DFPS Commissioner John Specia, or any of the DFPS staff members present in the courtroom sought to correct this false testimony. Id. at 23-29, 43, 48. The Court even had a colloquy with the Commissioner about this issue, yet the false testimony was never corrected. Id. at 27-28.

         Further the Defendants' attorney Mr. Albright further explained to the Court that "the State has drawn that line at 12" children in regard to 24-hour awake-night supervision. (D.E. 322, p.96). This essentially meant that all relevant foster group homes with 12 or more children did have 24-hour awake-night supervision while foster group homes, homes containing 6-12 children did not have this.

         b. After trial, defendants represented to this Court and to the Fifth Circuit that they have complied with the 24-hour awake-night order as to foster group homes and cottage homes, and to an extension, to all relevant foster care facilities

         Ever since this false trial testimony, the Defendants continually relied on and asserted to both this Court and the Fifth Circuit that it now had 24-hour awake-night supervision. The following is an enumeration of these misrepresentations:

         Representations Before This Court After Trial

• On December 29, 2016, the Defendants assured this Court that there were 58 foster group homes with seven or more children, and all but one had 24-hour awake-night supervision in place. See (Dkt. 492, p. 2).
• On January 19, 2018, the Defendants before this Court promised that the state is operating foster group homes "with the addition of 24-hour supervision" (D.E. 561, p. 16).
Representations to the 5th Circuit After Trial
• On February 5, 2018, Defendants represented to the Fifth Circuit that they "obeyed the district court's orders," and neither the Special Masters nor the Court had "complained at any point before 2018 that Defendants were violating the court's 2015 order." Reply in ...

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