United States District Court, S.D. Texas, Corpus Christi Division
Graham Jack Senior United States District Judge
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, 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
"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).
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
1133 N. Shoreline Blvd., Ste. 208
Corpus Christi, TX 78401
The Defendants are to be fined until they follow and satisfy
the Court's Order.
Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Factual and Procedural History
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.
Findings of Fact and Conclusions of Law
Legal Standards for Civil Contempt
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.
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.
Failure to Provide 24-Hour Awake-Night Supervision
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.
24-Hour Awake Night Supervision Order Is in
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.
24-Hour Awake Night Supervision Required Certain
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.
Defendants Have Failed To Comply With This Court's
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
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
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.
Defendants testified at trial that all group facilities
except for foster group homes have 24-hour
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
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.
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?
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?
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?
Id. (Emphasis Added).
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.
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.
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
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:
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
• 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