M. D. Ex Rel. Stukenberg v. Abbott , 907 F.3d 237 ( 2018 )

Case: 18-40057 Document: 00514688349 Page: 1 Date Filed: 10/18/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 18, 2018
No. 18-40057
Lyle W. Cayce
Clerk
M. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B.
Morrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer
Talley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J.
Ricker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela
C. Vasquez; A. R., by next friend Tom McKenzie, individually and on behalf
of all other similarly situated,
Plaintiffs - Appellees
v.
GREG ABBOTT, in his official capacity as Governor of the State of Texas;
COURTNEY PHILLIPS, in her official capacity as Executive Commissioner
of the Health and Human Services Commission of Texas; HENRY
WHITMAN, JR., in his official capacity as Commissioner of the Department
of Family and Protective Services of the State of Texas,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Plaintiffs, a certified class of minor children in the Permanent Managing
Conservatorship of the Department of Family Protective Services (“DFPS”) in
Texas, filed suit under 42 U.S.C. § 1983 seeking injunctive relief against the
Governor of Texas, the Executive Commissioner of the Texas Health and
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Human Services Commission, and the Commissioner of DFPS (collectively “the
State”). They allege that the State’s maintenance of its foster care system
exposes them to a serious risk of abuse, neglect, and harm to their physical and
psychological well-being. The district court held that the State’s policies and
practices violated plaintiffs’ constitutional right to be free from an
unreasonable risk of harm, and granted plaintiffs a permanent injunction
requiring sweeping changes to Texas’s foster care system. The State appeals
both the liability determination and the injunctive order. For the reasons
stated below, we AFFIRM in part, REVERSE in part, VACATE, and REMAND
for modification of the injunction.
I. Facts and Proceedings
The Texas Department of Family and Protective Services 1 is responsible
for roughly 29,000 children. When DFPS’s Child Protective Services (“CPS”)
division determines that it is not safe for a child to remain with his legal
guardian as a result of abuse and/or neglect, CPS petitions the court to remove
the child to the Temporary Management Conservatorship (“TMC”). TMC is
intended to be a nonpermanent custody arrangement. CPS places the TMC
child with a relative or a certified caregiver while CPS attempts to reunify the
child with his legal guardian, permanently place him with a relative, or
arrange for him to be adopted. There are approximately 17,000 children in
TMC, which lasts for one year unless the court extends it by six months. If CPS
cannot achieve permanency 2 for the child at the end of the TMC period, the
child enters the Permanent Managing Conservatorship (“PMC”). There are
approximately 12,000 children in PMC.
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1 DFPS is overseen by Texas’s Health and Human Services Commission. See Tex.
Gov’t Code Ann. § 531.0055.
2 “Permanency” is the term used to refer to a child’s exiting from DFPS care into an
appropriate, permanent setting. It is the ultimate goal for children in State custody.
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Many things change when a child is moved to PMC. As a general matter,
PMC children get less attention from their caseworkers and other advocates
than do TMC children. For example, according to requirements set by the state
legislature, PMC children are entitled to fewer permanency review hearings,
planning meetings, and status hearings per year. TMC children receive four
service plan reviews in their first year, but PMC children receive only two
reviews per year. Unlike TMC children, PMC children are not entitled to an
attorney ad litem, and they are far less likely to have Court Appointed Special
Advocate (“CASA”) volunteers. As one state court-commissioned report put it,
“[t]hough the State’s responsibility for the child’s life and well-being does not
change—and arguably increases—the attention paid to the child’s cases
diminishes drastically.” There is a sense among CPS staff that when a child
transitions into PMC, “the clock stops ticking.”
Children receive one of four “service level” designations upon entering
state custody—Basic, Moderate, Specialized, or Intense—based on their
physical and psychological needs. Placements must be licensed to care for
children at specific service levels. DFPS has access to a variety of placement
settings, though it directly manages only about 10% of them. The remaining
90% are managed by private child-placing agencies (“CPAs”) contracting with
the State. Relevant placement setting options, listed from least to most
restrictive, include: 1) foster family homes that contain 1 to 6 children; 2) foster
group homes that contain 7 to 12 children (“FGHs”); 3) general residential
operations that contain 13 or more children (“GROs”); and 4) residential
treatment centers (“RTCs”), which provide therapeutic treatment for children
with more severe emotional or mental-health issues.
It is DFPS policy to find the most appropriate placement for foster
children and to try to keep children in their home counties. Policy also specifies
that children should be placed with their siblings whenever possible and in
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family-like settings as opposed to group homes if it is feasible and in the child’s
best interest. Because of practical limitations on placement availability,
roughly 40% of children are placed “out of region.” 3 Approximately 64.7% of
sibling groups are placed together. Just under 14% of PMC children under 12
are placed in FGHs, GROs, or RCLs. DFPS does not have a policy against
mixing children of different ages, sexes, and service levels in FGHs, though
girls and boys may not share the same bedroom.
Primary conservatorship caseworkers (“CVS caseworkers” or
“caseworkers”) are a foster child’s most important point of contact within
DFPS, and they are critical to the provision of safety for foster children. CVS
caseworkers are responsible for, among other things, assessing children’s
placement needs, finding appropriate placement, monitoring the children to
make sure they are safe, ensuring that they receive needed services, developing
and implementing permanency plans, attending court hearings and plan
meetings, updating the children’s medical records, and conducting monthly
face-to-face visits with the children and their foster families. 4 Given
caseworkers’ sweeping responsibilities, the Child Welfare League of America
(“CWLA”) recommends that they carry a caseload that includes no more than
12 to 15 children. 5 DFPS does not place any limits on the number of cases CVS
caseworkers can carry. As of June 2014, nearly half of CVS caseworkers carried
caseloads of 21 children or more, 22% carried caseloads of 26 or more, and
nearly 10% carried caseloads of 31 children or more. 6 Caseworkers report that
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3 “Out of region” generally means outside of the child’s home county.
4 CVS caseworkers’ caseloads include both TMC and PMC children.
5 The Texas legislature recognizes the CWLA guidelines as a relevant, but not binding,
benchmark. See Tex. Gov’t Code Ann. § 531.001(5).
6 There is reason to doubt that these calculations capture the full scale of the caseload
burden. The problems associated with the DFPS-provided data is discussed more fully in
Section IV, infra.
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they are overworked, and DFPS experiences a high rate of caseworker
turnover.
Because placement availability is limited, it is often impracticable for
caseworkers to make their monthly face-to-face visits with their children.
DFPS often uses secondary workers to fill this gap. In some cases, when
caseworkers are too busy or too far away, secondary “I See You” (“ISY”) workers
will take on the home visits. Caseworkers then rely on ISY workers’ notes in
case planning. ISY workers typically carry a large caseload, and their
responsibilities are significantly more limited than are those of primary
caseworkers. They are not required to follow up on a child’s needs, and they
are not involved in any aspect of a child’s permanency plan outside of providing
relevant information to the child’s primary caseworker. ISY workers’ primary
responsibility is to see the child and confirm that the child “is still there.”
Testimony at trial strongly suggests that ISY visits are perfunctory and that
the information they generate from the foster child is often superficial and
unhelpful. Children do not feel comfortable sharing their problems with their
revolving roster of ISY workers, who often fail to meet with them in private as
required by DFPS policy.
With respect to recordkeeping, DFPS’s methods are shockingly
haphazard and inefficient. A significant portion of children’s records are kept
in DFPS’s electronic IMPACT casework system. Data on abuse and neglect
investigations are maintained by the Residential Child Care Licensing
(“RCCL”) division in its CLASS database. Caseworkers have access to CLASS,
but the data is not merged with IMPACT files. RCCL allows CPAs to keep their
own records. Medical records and related information is accessible via the
STAR Health Passport, which is not synced with IMPACT, though IMPACT is
supposed to include children’s comprehensive medical information. Neither
IMPACT nor STAR can “store” many requisite documents electronically, so
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documents such as medical assessments and birth certificates are maintained
in paper files. Some children’s files are maintained entirely in paper form, and
casefiles are often inordinately long. 7
The task of inspecting, investigating, and licensing placements is
managed by RCCL. The Performance Management Unit (“PMU”) is
responsible for internal quality control for all of DFPS, including RCCL. RCCL
investigates any reports of neglect and abuse. When RCCL investigates an
allegation, it ascribes one of four outcomes upon completion: 1) Reason to
Believe (“RTB”); 2) Ruled Out (“RO”); 3) Unable to Determine (“UTD”) 8; or 4)
Administrative Closure. 9 Two PMU studies of a random sample of UTD
dispositions revealed a high rate of disposition errors.
RCCL investigates incidents of child-on-child abuse, but does not
formally track or aggregate those statistics; rather, it labels child-on-child
incident investigations “negligent supervision” cases. The only place RCCL
records a child’s history of abusing other children is in the perpetrating child’s
individual casefile. This means that this information is not easily accessible to
caseworkers when they are evaluating whether a placement is appropriate for
one of their children. 10 It also means that incidents of child-on-child abuse are
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7 The district court noted that the records for the 20 children it had access to totaled
over 350,000 pages. Case file length is also inconsistent. For example, J.S.’s case file was
40,000 pages long, but the case files for an eight-sibling group comprised a total of 16,500
pages.
8 UTD is a final disposition and does not mandate RCCL follow-up.
9 RTB and RO dispositions mean a “preponderance of the evidence” indicates abuse
did or did not occur. “Administrative Closure” means “The operation is not subject to
regulation; or the allegations do not meet the definition of abuse, neglect, or exploitation.”
10 Essentially, this information is not “searchable” for a caseworker. As a result,
caseworkers may miss it. For example, named plaintiff D.I. was placed in a home with a 16-
year-old boy who had sexually abused a young boy several years earlier; D.I. was ultimately
sexually abused by this same 16-year-old boy. The boy’s abuse history was not accessible to
D.I.’s caseworker, and thus it was overlooked when making the placement decision.
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not included in the abuse rate/data DFPS provides to the federal government
or the data that was provided to the district court.
Children “age out” of foster care when they reach the age of 18. Roughly
1,300–1,400 foster children “age-out” of the foster system annually. Of these,
approximately 25–30% go back into extended foster care. Another small
percentage with intellectual and developmental disabilities go into the
guardianship of a separate program not maintained by DFPS. The rest,
presumably, though it’s not clear from the record, find a permanent living
arrangement, make use of shelters and other non-profit programs for youths
aging-out of foster care, or end up homeless. DFPS offers independent living
classes to foster children over the age of 16, though DFPS apparently does not
know what percentage of children actually utilize the program.
Plaintiffs, minor children in the PMC, filed suit through next friends in
March 2011, alleging that the State violated their substantive rights under the
Due Process Clause of the Fourteenth Amendment. They sought injunctive
relief against the Governor of Texas, the Executive Commissioner of the Texas
Health and Human Services Commission, and the Commissioner of DFPS. The
district court granted their motion for class certification under Federal Rule of
Civil Procedure 23. Following the Supreme Court’s opinion in Walmart v.
Dukes, 564 U.S. 338 (2011), this court vacated and remanded the certification.
M.D. ex rel. Stukenberg v. Perry (M.D. I), 675 F.3d 832 (5th Cir. 2012). After a
three-day hearing, the district court concluded that the requirements of Rule
23(a) had been met, and certified a general class—all children now, or in the
future, in the PMC in Texas—and three subclasses: 1) Licensed Foster Care
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Subclass (“LFC”) 11; 2) FGH subclass; and 3) Basic care GRO subclass 12. The
State’s interlocutory appeal of the certification order was dismissed as
untimely. M.D. ex rel. Stukenberg v. Perry, 547 F. App’x 543 (5th Cir. 2013).
Following a two-week bench trial, the conscientious district court issued
its liability opinion in December 2015. The district court ultimately found that
DFPS’s policies and practices with respect to caseloads, monitoring and
oversight, placement array, and foster group homes violated plaintiffs’
substantive due process rights. It ordered the State to “establish and
implement policies and procedures to ensure . . . PMC foster children are free
from an unreasonable risk of harm” and enjoined DFPS from placing children
in FGHs that lack 24-hour awake-night supervision.
Over the course of the trial, the court heard from twenty-eight fact
witnesses: 1) six next friends and attorneys ad litem, who have roughly 80
years of experience in the child welfare system between them and who have
dealt extensively with PMC children and CVS caseworkers; 2) five former PMC
foster children; 3) a non-profit leader who runs a shelter and transitional living
program for youths aging-out of foster care in Texas and who has personally
fostered 65 children over the last 16 years; 4) two former CVS caseworkers;
and 5) 14 current DFPS officers 13. The district court also heard testimony from
twelve expert witnesses proffered by the plaintiffs and the State. It gave
various weight to the experts’ testimony according to the district court’s
credibility determinations. Ultimately, the district court disregarded the
testimony of two proffered experts in their entirety as unreliable.
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11 LFC includes all members of the General Class in licensed or verified foster care
placements, excluding verified kinship placements.
12 The Basic Care GRO subclass was later decertified as without adequate
representatives.
13 Some of these officers have since left the agency.
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The court considered several reports detailing both independent and
internal reviews of the Texas foster care system, including multiple reports
that were commissioned by DFPS itself. The reports date back to 2004, and
several of them reference earlier agency reviews and internal audits, most
notably a report authored by the Governor’s Committee to Promote Adoption
(“GCPA”) in 1996. Additionally, the district court considered national child
welfare standards provided by the CWLA and the Council on Accreditation,
and Child and Family Service Reviews (“CFSR”) performed by the United
States Department of Health and Human Services.
This court denied the State a stay pending appeal. The district court
appointed Special Masters to address specific constitutional shortcomings at
DFPS, and this court denied defendants’ petition for writ of mandamus
requesting the court vacate the appointment. The Special Masters studied
DFPS and its policies for nearly two years and submitted a final list of findings
and recommendations to the district court. The district court entered a final
order granting plaintiffs a permanent injunction in January 2018 and
appointed a Special Monitor.
The State appealed, and this court granted an administrative stay of the
injunction, which was converted to a stay pending appeal by our panel on
March 21. The State raises three primary objections to the district court’s
liability determination and the injunctive order: 1) the district court erred in
concluding that DFPS policies affecting the PMC class violate plaintiffs’
substantive due process right and, as such, plaintiffs are not entitled to
injunctive relief; 2) the district court abused its discretion in certifying the
general class and various subclasses; and 3) the scope of the district court’s
injunction is improper.
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II. Standard of Review
Following a bench trial, this court reviews the district court’s conclusions
of law de novo and its factual findings for clear error. Cerda v. 2004–EQR1
L.L.C., 612 F.3d 781, 786 (5th Cir. 2010). “The predicate findings of a
substantial risk of serious harm and officials’ deliberate indifference to the risk
are factual findings reviewed for clear error.” Ball v. LeBlanc, 792 F.3d 584,
592 (5th Cir. 2015); Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004); cf. Farmer
v. Brennan, 511 U.S. 825, 842 (1994). 14 Such findings are erroneous only if
“[they are] without substantial evidence to support [them], the court
misinterpreted the effect of the evidence, or this court is convinced that the
findings are against the preponderance of credible testimony.” Ball, 792 F.3d
at 592 (quoting Petrohawk Props., L.P. v. Chesapeake La., L.P., 689 F.3d 380,
388 (5th Cir. 2012)). Whether the facts as found establish a violation of the Due
Process Clause is a “legal conclusion based on factual inferences” subject to de
novo review. See Dalheim v. KDFW-TV, 918 F.2d 1220, 1226 (5th Cir. 1990).
The district court’s decision to certify a class is reviewed for abuse of
discretion. Yates v. Collier, 868 F.3d 354, 359 (5th Cir. 2017). This court
recognizes “the essentially factual basis of the certification inquiry and [] the
district court’s inherent power to manage and control pending litigation.” M.D.
I, 675 F.3d at 836. “Nonetheless, this broad discretion must operate ‘within the
framework of Rule 23,’ and we ‘review de novo whether the district court
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The State insists that the deliberate indifference finding is subject to de novo review.
14
This contention is contradicted by Supreme Court and Fifth Circuit precedent. Certainly, we
review the district court’s conclusions regarding the legal significance of the facts de novo.
See Barrett v. United States, 51 F.3d 475, 478 (5th Cir. 1995). But this court has made clear
that deliberate indifference is a factual finding reviewed only for clear error. See, e.g., Ball,
793 F.3d at 592; Gates, 376 F.3d at 333.
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applied the correct legal standards.’” Yates, 868 F.3d at 360 (quoting M.D. I,
675 F.3d at 836). 15
This court reviews the district court’s grant of a permanent injunction
for abuse of discretion. Ball, 792 F.3d at 598. The district court abuses its
discretion if it “(1) relies on clearly erroneous factual findings when deciding to
grant or deny the permanent injunction[,] (2) relies on erroneous conclusions
of law when deciding to grant or deny the permanent injunction, or (3)
misapplies the factual or legal conclusions when fashioning its injunctive
relief.” Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th
Cir. 2014) (internal quotation omitted).
III. Governing Law
We begin with an overview of the legal framework for evaluating
plaintiffs’ claims. In order to state a claim for a substantive due process
violation under § 1983, the plaintiffs must demonstrate: 1) they were deprived
of a cognizable constitutional right, see Rios v. City of Del Rio, 444 F.3d 417,
425 (5th Cir. 2006); 2) the State acted with “deliberate indifference” to the
protected right, see Hernandez v. Tex. Dep’t of Protective & Regulatory Servs.,
380 F.3d 872, 880 (5th Cir. 2004); and 3) the policies or practices complained
of were the direct cause of the constitutional deprivation, see Piotrowski v. City
of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
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We note that the State failed to timely appeal the final class certification order. See
15
M.D. ex rel. Stukenberg v. Perry, 547 F. App’x 543 (5th Cir. 2013). Consequently, this court
granted the plaintiffs’ motion to dismiss the State’s petition for permission to appeal as
untimely. See id. Nonetheless, because an interlocutory appeal is permissive rather than
mandatory, the State retains the right to challenge the class certification following the
ultimate disposition of the case on the merits. Cf. Hamilton Plaintiffs v. Williams Plantiffs,
147 F.3d 367, 381 (5th Cir. 1998); see also Yamamoto v. Omiya, 564 F.2d 1319, 1325 n.11 (9th
Cir. 1977). Our liability findings, however, will essentially dispose of the question of whether
the classes were properly certified in the first instance, and will obviate the need for a lengthy
analysis of the certification issue.
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1. The Substantive Due Process Right
As a general matter, the State is under no affirmative obligation to
protect its citizens from private harm. DeShaney v. Winnebago Cty. Dep’t of
Soc. Servs., 489 U.S. 189, 197 (1989). The Supreme Court has recognized,
however, that when the State assumes certain custodial roles with respect to
an individual, it creates a “special relationship” that imparts to the State a
limited duty to provide for that person’s safety and general well-being. See id.
As the Court explained:
The rationale for [these protections] is simple enough: when the
state by the affirmative exercise of its power so restrains an
individual’s liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic
human needs—e.g., food, clothing, shelter, medical care, and
reasonable safety—it transgresses the substantive limits on
state action set by the Eighth Amendment and the Due Process
Clause.
Id. at 200 (citing Estelle v. Gamble, 429 U.S. 97, 103–04 (1976); Youngberg v.
Romeo, 457 U.S. 307, 315–16 (1976)). The Court has found that a special
relationship exists between the State and prisoners, Gamble, 429 U.S. at 103–
04, involuntarily-committed mental patients, Youngberg, 457 U.S. at 315–16,
and suspected criminals injured in the course of being apprehended by police,
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
In DeShaney, the Supreme Court found that no “special relationship”
existed between the State and a child who had been placed in the temporary
custody of a local hospital by an emergency court order. See DeShaney, 489
U.S. at 192–203. But, in holding that the State had no affirmative duty to
intervene on the child’s behalf, the Court highlighted that “the harms [the
child] suffered occurred not while he was in the State’s custody, but while he
was in the custody of his natural father, who was in no sense a state actor.” Id.
at 201. It qualified that, “[h]ad the State by the affirmative exercise of its power
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removed [the child] from free society and placed him in a foster home operated
by its agents, we might have a situation sufficiently analogous to incarceration
or institutionalization to give rise to an affirmative duty to protect.” Id. at 201
n.9. 16
Following DeShaney, the Fifth Circuit held that a “special relationship”
exists between the State and children when the State “remove[s] them from
their natural home and place[s] them under state supervision.” Griffith v.
Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990). 17 Having taken custody of a
child, the State “assume[s] the responsibility to provide for constitutionally
adequate care.” Id.; see also Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 856 (5th Cir. 2012); Hernandez, 380 F.3d at 880.
This court has defined the substantive due process right enjoyed by
children in the custody of the State’s foster care system as a right to “personal
security and reasonably safe living conditions.” Hernandez, 380 F.3d at 880. 18
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It noted that “several Courts of Appeals have held, by analogy to Gamble and
16
Youngberg, that the State may be held liable under the Due Process Clause for failing to
protect children in foster homes from mistreatment at the hands of their foster parents.”
DeShaney, 489 U.S. at 201 n.9 (citing Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134, 141–
42 (2d Cir. 1981); Taylor ex. Rel. Walker v. Ledbetter, 818 F.2d 791, 794–97 (11th Cir. 1987)
(en banc)). Ultimately, the Court declined to express an opinion on “the validity of this
analogy,” as that precise question was not before it. DeShaney, 489 U.S. at 201, n.9.
17 Virtually every other circuit agrees. See, e.g., Tamas v. Dep’t of Soc. & Health Servs.,
630 F.3d 833, 842 (9th Cir. 2010); Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d
163, 175 (4th Cir. 2010); Lewis v. Anderson, 308 F.3d 768, 773 (7th Cir. 2002); Nicini v. Morra,
212 F.3d 798, 808 (3d Cir. 2000) (en banc); Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d
289, 293 (8th Cir. 1993); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 891–93
(10th Cir. 1992); Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir.); Taylor, 818
F.2d at 794–97; Doe, 649 F.2d at 141–42 (2d Cir. 1981).
18 The district court formulated the substantive right as “the right to be free from an
unreasonable risk of harm.” To the extent that formulation is merely “paraphrasing” the right
as articulated in Hernandez, it is not inconsistent with this court’s precedent. The State
contends that the district court’s formulation transforms the deliberate indifference
culpability standard into a mere negligence standard. As plaintiffs point out, however, the
district court’s use of the phrase “unreasonable risk of harm” pertains to the definition of the
substantive right conferred by the Due Process Clause—not the requisite level of culpability
necessary to hold the state liable for violating that right. (explaining that being exposed to
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Though the precise contours of “personal security” and “reasonably safe living
conditions” have yet to be fleshed-out at length, it is clear that foster children
are, at minimum, entitled to protection from physical abuse and violations of
bodily integrity. See, e.g., id. at 880–81. This court has not, however, required
the State to guarantee the individual’s betterment or unconditional stability. 19
But there is a significant amount of daylight between physical abuse and
maximum personal psychological development, optimal treatment, or the most
appropriate care. The district court held that the substantive right
encompasses a right to protection from psychological abuse. 20 We agree that
plaintiffs’ substantive right to “personal security and reasonably safe living
conditions” includes the very limited right to be free from severe psychological
abuse and emotional trauma—both of which are often inextricably related to
some form of physical mistreatment or deprivation. See DeShaney, 489 U.S. at
200; Youngberg, 457 U.S. at 317. Indeed, DeShaney notes that, in a custodial
setting, the State assumes at least “some responsibility” for both an
individual’s “safety” and his “general well-being.” Deshaney, 489 U.S. at 199–
200. Other courts have recognized that the State’s responsibility to protect
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an unreasonable risk of harm “is the legal injury”). The district court correctly identifies
deliberate indifference as the appropriate culpability standard.
19 See, e.g., Griffith, 899 F.2d at 1439 (rejecting the contention that the State has a
“responsibility to [] maximize[] [foster children’s] personal psychological development”);
Drummond v. Fulton Cty. Dep’t of Family and Children’s Servs., 563 F.2d 1200, 1208–09 (5th
Cir. 1977) (stating a child does not have a “right to a stable environment” or a right “not to
be moved from home to home,” notwithstanding the “significant literature which indicates a
traumatic effect of such moves on young children”); see also Feagley v. Waddill, 868 F.2d
1437, 1440 (5th Cir. 1989) (“[W]here the state does not provide treatment designed to improve
a mentally [handicapped] individual’s condition, it deprives the individual of nothing
guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it
is under no obligation to grant.”).
20 While we agree that a certain level of psychological harm is cognizable, the district
court took this principle too far in the direction of “optimal treatment” and the “right to a
stable environment” in some portions of its analysis. The overbroad interpretation of the right
is discussed more thoroughly in Section VI, infra.
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foster children’s “general well-being” requires it “to take steps to prevent
children in state institutions from deteriorating physically or psychologically.”
See, e.g., K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). 21
We stress, however, that there are significant limits on the scope of the
right to be free from certain forms of psychological harm. The Fourteenth
Amendment does not entitle plaintiffs to receive optimal treatment and
services, nor does it afford them the right to be free from any and all
psychological harm at the hands of the State. See, e.g., Griffith, 899 F.2d at
1439; Drummond, 563 F.2d at 1208–09; Feagley, 868 F.2d at 1441. Many
inherent features of the foster care system, such as the ambulatory nature of
children’s placements, have negative psychological consequences. Such
negative consequences are regrettable, but they are not the type of significant,
abuse-related psychological damage the Constitution prohibits. In sum,
egregious intrusions on a child’s emotional well-being—such as, for example,
persistent threats of bodily harm or aggressive verbal bullying—are
constitutionally cognizable. Incidental psychological injury that is the natural,
if unfortunate, consequence of being a ward of the state does not rise to the
level of a substantive due process violation.
________________________
21 District courts generally assume a right to be free from both physical and
psychological damage. See, e.g., Yvonne L., 959 F.2d at 892 (noting with approval the
language in K.H.); Connor B. ex rel. Vigurs v. Patrick, 985 F. Supp. 2d 129, 158–59 (D. Mass.
2013) (recognizing that the right to be free from psychological as well as physical
deterioration); R.G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006) (stating that the
liberty interest protected by the due process clause “encompasses a right to protection from
psychological as well as physical abuse”); Marisol A. by Forbes v. Giuliani, 929 F. Supp. 662,
675 (S.D.N.Y. 1996) (“custodial plaintiffs have a substantive due process right to be free from
unreasonable and unnecessary intrusions into their emotional well-being”); B.H. v. Johnson,
715 F. Supp. 1387, 1395 (N.D. Ill. 1989) (stating the same).
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2. Deliberate Indifference
In order to hold the State liable for violating plaintiffs’ substantive due
process rights, plaintiffs are required to demonstrate that the State’s conduct
“shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846
(1998). The Supreme Court has explained that the Due Process Clause protects
individual citizens from “arbitrary action of government,” and that under the
“shocks the conscience” standard, “only the most egregious official conduct can
be said to be arbitrary in the constitutional sense.” Id. at 845–46 (internal
quotations omitted). “While the measure of what is conscience shocking is no
calibrated yard stick,” id. at 847, it is not enough that the conduct “offend[s]
some fastidious squeamishness or private sentimentalism.” Rochin v.
California, 342 U.S. 165, 172 (1952). Most recently, the Court reiterated that
the “‘shocks the conscience’ standard is satisfied where the conduct was
‘intended to injure in some way unjustifiable by any government interest,’ or
in some circumstances if it resulted from deliberate indifference.” Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1906 (2018) (quoting Lewis, 523 U.S.
at 849–50). Furthermore, “liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due process.” Lewis, 523
U.S. at 849.
“Consistent with [these] principles,” this court has required plaintiffs to
show that the State “at a minimum acted with deliberate indifference toward
the plaintiff.” Hernandez, 380 F.3d at 880 (quoting McClendon v. City of
Columbia, 305 F.3d 314, 326 (5th Cir. 2002)). 22 Demonstrating that the State
________________________
22There is some debate between the parties as to whether deliberate indifference is
the appropriate standard of culpability in the foster care context. Both raise the possibility
that Youngberg’s “professional judgment” standard should apply. See Youngberg, 457 U.S. at
321–23. Under this standard, the State is liable for decisions that constitute “substantial
departure[s] from accepted professional judgment.” Id. at 323. “The compelling appeal of the
argument for the professional judgment standard is that foster children, like involuntarily
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acted with deliberate indifference is “a significantly high burden for plaintiffs
to overcome.” Id. at 882 (citing Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 218
(5th Cir. 1998)). “To act with deliberate indifference, a state actor must
consciously disregard a known and excessive risk to the victim’s health and
safety.” Id. at 880 (citing Farmer, 511 U.S. at 837). Stated differently, “the
[State] must be both aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and [it] must also draw that
inference.” Id. at 881 (quoting Farmer, 51 U.S. at 837). This is “a degree of
culpability beyond mere negligence or even gross negligence; it ‘must amount
to an intentional choice, not merely an unintentionally negligent oversight.’”
James v. Harris Cty., 577 F.3d 612, 617–18 (5th Cir. 2009) (quoting Rhyne v.
Henderson Cty., 973 F.2d 386, 392 (5th Cir. 1992)). Moreover, the State is not
deliberately indifferent to a substantial risk of serious harm if, aware of the
risk, it “respond[s] reasonably . . . even if the harm ultimately was not averted.”
Farmer, 511 U.S. at 844.
________________________
committed patients, are ‘entitled to more considerate treatment and conditions’ than
criminals.” Yvonne L., 959 F.2d at 894 (quoting Youngberg, 457 U.S. at 321–22). The Tenth
Circuit noted, however, that “[a]s applied to a foster care setting, we doubt there is much
difference” between the deliberate indifference and the professional judgment standards. Id.
The parties’ dispute is of no real consequence, as it is settled law in this circuit that
the court applies the deliberate indifference culpability standard to allegations that the State
violated plaintiffs’ substantive due process rights. See, e.g., Hernandez, 380 F.3d at 880; Doe,
675 F.3d at 863. Nearly every circuit to decide the question also identifies deliberate
indifference as the appropriate standard. See Tamas, 630 F.3d at 844 (9th Cir.); James ex rel.
James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006); J.H. ex rel. Higgin v. Johnson, 346 F.3d
788, 792 (7th Cir. 2003); Nicini, 212 F.3d at 810–11 (3d Cir.); Meador, 902 F.2d at 476 (6th
Cir.); Taylor, 818 F.2d at 794–97 (11th Cir.); Doe, 649 F.2d at 141 (2d Cir.). But see Connor
B., 774 F.3d at 162–63; Schwartz v. Booker, 702 F.3d 573, 583 (10th Cir. 2012). The State
also baldly claims—without any case law support—that the “professional judgment standard
is a “more stringent test.” This panel has found no cases indicating that professional
judgment is a higher standard. Indeed, case law universally indicates that the standards are
either roughly equal or that professional judgment is a more lenient culpability standard.
See, e.g., Yvonne L., 959 F.2d at 894; Connor B., 771 F. Supp. 2d at 162 n. 4. The district
court, out of an abundance of caution, analyzed the alleged violations under both the
deliberate indifference and the professional judgment standards.
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Though deliberate indifference is a subjective standard of recklessness
focusing on what the State actually knew, rather than what it should have
known, McClendon, 305 F.3d at 326, “this court has never required state
officials to be warned of a specific danger.” Hernandez, 380 F.3d at 881
(emphasis added). “[R]ather, it is enough that the [State] acted or failed to act
despite [its] knowledge of a substantial risk of serious harm”—the plaintiffs
need not show that the State anticipated the exact form the harm would take.
Id. This court in Hernandez explained: “as a state official may not escape
deliberate indifference liability by arguing that the risk of harm arises from a
source not contemplated, a defendant also cannot avoid such liability by
contending that the particular method of harm, i.e. how the abuse was carried
out, was not envisioned.” Id. at 882. Accordingly, to overcome the culpability
standard, the plaintiffs were required to demonstrate only that the State
“knew of the underlying facts indicating a sufficiently substantial danger and
that [it] did not believe that the risks to which the facts gave rise [were]
insubstantial or nonexistent.” Id. (citing Rosa H v. San Elizario Indep. Sch.
Dist., 106 F.3d 648, 659 (5th Cir. 1997)).
The Supreme Court has also explained that the deliberately indifferent
state of mind can be inferred “from the fact that the risk of harm is obvious.”
Hope v. Pelzer, 536 U.S. 730, 737 (2002); see also Farmer, 511 U.S. at 842. In
other words, if the risk of severe abuse is sufficiently apparent, a court is
entitled to find that the State was deliberately indifferent. See Hernandez, 380
F.3d at 881. Furthermore, plaintiffs may be protected against future harm not
yet realized through a prospective injunction. See Helling v. McKinney, 509
U.S. 25, 33 (1993) (stating that “[i]t would be odd to deny an injunction to
inmates who plainly proved an unsafe, life-threatening condition in their
prison on the ground that nothing yet had happened to them[,]” and “a remedy
for unsafe conditions need not await a tragic event”); see also Hoptowit v.
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Spellman, 753 F.2d 779, 783–84 (9th Cir. 1985) (Hoptowit II); Gates v. Collier,
501 F.2d 1291, 1304 (5th Cir. 1974).
3. Causation
In addition to establishing that they were deprived of a constitutional
right and that the State acted with the requisite level of culpability, plaintiffs
must show that the State is the “‘moving force’ behind the deprivation.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Monell v. N.Y.C. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Piotrowski, 237 F.3d at 578.
“[T]hus[] . . . the entity’s ‘policy or custom’ must have played a part in the
violation of federal law.” Graham, 473 U.S. at 166. This court has cautioned
that culpability and causation requirements “must not be diluted, for ‘[w]here
a court fails to adhere to rigorous requirements of culpability and causation,
[state entity] liability collapses into respondeat superior liability.’” Snyder v.
Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (quoting Bd. of Cty. Comm’rs of
Bryan Cty. v. Brown, 520 U.S. 397, 415 (1997)). Causation is, however, an
“intensely” fact-bound inquiry. Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir.
1999). “Because the district court is better positioned [ . . . ] to decide the issue,
our review of the . . . cause determination is deferential.” Brown v. Plata, 563
U.S. 493, 517 (2011) (internal quotations omitted).
Establishing a “direct causal link between the [State] policy and the
constitutional deprivation” is a “high threshold of proof.” Piotrowski, 237 F.3d
at 580. “This connection must be more than a mere ‘but for’ coupling between
cause and effect.” Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir.
1992) (citing City of Canton v. Harris, 489 U.S. 378, 388–89 (1989)). “It follows
that each and any policy [or practice] which allegedly caused constitutional
violations must be specifically identified by a plaintiff, and it must be
determined whether each one is facially constitutional or unconstitutional.”
Piotrowski, 237 F.3d at 579–80. Concerned with the distinction between an
19
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offending policy and isolated instances of violative conduct by individual bad
actors, the court in Piotrowski emphasized the need to “disaggregate[]” the
policies or customs causing the alleged constitutional deprivation. See id. at
581. Neither Piotrowski nor this court’s related precedent regarding the § 1983
causation requirement, however, suggests a plaintiff is required to
demonstrate that a challenged policy or practice is the exclusive cause of the
constitutional deprivation. See id.; Fraire, 957 F.2d at 1281; see also Graham,
473 U.S. at 166 (noting that the entity’s policy or practice “must have played a
part in the violation of federal law” (emphasis added)).
The district court stated that, with respect to causation, it “[understood]
Plaintiffs’ argument as saying that each policy and practice does not, on its
own, have to result in a constitutional violation.” It pointed to this court’s
opinion in Alberti v. Klevenhagen for the proposition that, “[i]n determining the
constitutional question, we need not separately weigh each of the challenged
institutional practices and conditions, for we instead look to ‘the totality of
conditions.’” 790 F.2d 1220, 1224 (5th Cir. 1986) (quoting Ruiz v. Estelle, 679
F.2d 1115, 1139 (5th Cir.) (Ruiz VII), modified on other grounds, 688 F.2d 266
(5th Cir.1982); see also Rhodes v. Chapman, 452 U.S. 337, 347 (1981)
(“Conditions . . . alone or in combination, may deprive inmates of the minimal
civilized measure of life’s necessities.”); Hutto v. Finney, 437 U.S. 678, 686–87
(1978) (stating that whether punitive isolation is unconstitutional will depend
on the conditions of confinement). Alberti, Ruiz, and the related Supreme Court
precedent stand for the logical proposition that, under the Eighth Amendment,
the question of whether a particular policy or practice causes a constitutional
violation necessarily depends on context—i.e., how that policy or practice is
interacting with other prison conditions. A certain condition could amount to a
constitutional violation in the Prison A environment, but not in the Prison B
environment. See, e.g., Finney, 437 U.S. at 686–87.
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Requiring plaintiffs to identify with specificity the policies they allege
directly cause constitutional harm is not irreconcilable with the idea that, in
assessing the harm caused by a particular policy, the court may consider how
other policies or practices exacerbate or ameliorate its effect. In an Eighth
Amendment case from the Ninth Circuit, the court explained that, in applying
the “totality of conditions” test, courts are not entitled to simply add together
a number of conditions, “each of which satisfy Eighth amendment
requirements,” and then “rely on a vague conclusion that the ‘totality of
conditions’ violates the Eighth Amendment.” Hoptowit v. Ray, 682 F.2d 1237,
1247 (9th Cir. 1982) (Hoptowit I), overruled on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995). Instead, courts must consider whether each
specific condition amounted to cruel and unusual punishment. See Hoptowit
II, 753 F.2d at 783–84. The court went on, however, to explain that “[e]ach
condition of confinement does not exist in isolation; the court must consider the
effect of each condition in the context of the prison environment, especially
when the ill-effects of particular conditions are exacerbated by other related
conditions.” Hoptowit I, 682 F.2d at 1247 (internal quotations omitted). This
does not absolve the reviewing court from having to identify individual,
deficient conditions. See id. It is merely “a recognition that a particular
violation may be the result of several contributing factors.” Id.
In sum, the § 1983 causation component requires that the plaintiffs
identify, with particularity, the policies or practices they allege cause the
constitutional violation, and demonstrate a “direct causal link.” See Piotrowski,
237 F.3d at 580. We do not, however, read our precedent to require the court
to consider each policy or practice in a vacuum. The court may properly
consider how individual policies or practices interact with one another within
the larger system. Though the district court apparently accepted the “totality
of conditions” approach, it did address each of the State’s specific policies and
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practices on an individual basis. It also considered how the harmful effects of
some policies are exacerbated by others. For example, the district court
explained that DFPS’s refusal to track child-on-child abuse—a policy related
to monitoring and oversight—compounded the problem with excessive
caseworker workloads.
The State’s overarching causation argument essentially boils down to the
contention that, since most children are already “damaged” upon entering
foster care, it would be nearly impossible to prove that it was the State’s
policies or practices, rather than their experiences prior to State custody, that
inflicted the damage. 23 It seems to argue that there is just no way to quantify
how much harm came before custody and how much harm was inflicted while
the children were in State care. But the State provides no support for the
proposition that in order to prove causation plaintiffs are required to measure
with absolute precision how much more damage was done before rather than
after children enter the foster system. 24
First, Plaintiffs do not dispute that many, if not most, children enter the
foster care system having already experienced significant physical or
emotional trauma that may have a lasting impact on their psychological well-
being. It cannot be the case, however, that because a child has experienced
________________________
23 The district court apparently recognized this potential problem, and instructed the
plaintiffs at an early stage in the litigation that “somebody is going to have to tell me that
they suffer[] more harm than what they had when they got there.”
24 The State also contends that plaintiffs cannot demonstrate causation because they
never conducted a full “case read.” It is correct that case reads are a common and effective
method of analyzing trends among a large representative sample of foster children. The State
does not, however, suggest that case reads are required for an accurate finding on causation,
and we have found no authority indicating that this method is mandatory. Moreover, the
district court’s factual findings regarding the abysmal state of PMC children’s case files and
CPS’s recordkeeping habits overwhelmingly support the plaintiffs’ contention that a full case
read “just was not feasible.” The district court itself reviewed 20 case files—all of them
incomplete—totaling 358,102 pages. This undertaking took 462 hours. Moreover, given that
case files are often woefully fragmentary and scattered across multiple recordkeeping
databases, it is unlikely that a case read would have been especially helpful or accurate.
22
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some form of abuse before the State intervenes, he is not capable of being
further harmed by additional abuse or neglect while in foster care. It is illogical
to argue that because a child comes in already “damaged” the State cannot be
held liable for inflicting further harm that compounds that damage—even if it
cannot be measured with mathematical certainty.
Furthermore, there was a wealth of evidence at trial establishing that
many children experience some degree of concrete harm after entering the
State’s care. For example, almost all of the named plaintiffs entered the system
at a “Basic” level of care. By DFPS’s own standards, a “Basic” child is the least
“damaged” an intake can be. Most saw their level of care increase markedly
over the course of their time in PMC as a result of abuse and continued lack of
permanency. Their experiences map the accounts of the former foster children
who were presented as fact witnesses at trial and are consistent with testimony
from attorneys ad litem, former DFPS caseworkers, and experts. Moreover, as
noted in Section III(2), supra, plaintiffs need not show that every member of
the class has actually been harmed while in State custody; they need only
demonstrate that they face a risk of serious harm as a result of the State’s
policies and that the State was deliberately indifferent to the risk. See Helling,
509 U.S. at 33.
Before examining the merits of the plaintiffs’ claims with respect to the
individually challenged policies, we note globally that the State relies heavily,
as it did in the district court, on its performance in a preliminary phase of the
Child and Family Services Review (“CFSR”) conducted by the federal
government in 2014 as evidence that foster children do not face significant
safety risks in the State’s care. It notes that it outperformed the national
standard on 6 of the 7 statewide safety and permanency indicators. But 2 of
the 6 indicators in which Texas exceeded the standard do not incorporate any
data for PMC children at all—they pertain only to children in TMC. The other
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4 contain both TMC and PMC data. The only indicator that uses exclusively
PMC data is the one that the State failed.
Moreover, the CFSR the State cites was preliminary and based entirely
on data the State provided to the federal regulators. In preparing its final
report, federal regulators conduct an independent, on-site review. The results
of that review were significantly less flattering. Texas failed all 7 outcome
measures pertaining to child safety, permanency, and well-being, and it failed
4 out of the 7 statewide indicators. The report also noted that the independent
review “raised numerous concerns regarding the quality of the state’s self-
assessment of its case practices and the accuracy of case ratings.”
IV. DFPS Policies and Practices
Plaintiffs’ claims regarding DFPS’s policies and practices fall into four
overarching categories. Specifically, plaintiffs contend that DFPS’s policies
and practices with respect to 1) caseload management, 2) monitoring and
oversight, 3) placement array, and 4) foster group homes, violate their right to
be free from an unreasonable risk of harm while in State custody. We will
examine each challenged policy area in turn.
1. Caseloads: General Class
DFPS concedes that caseworkers are critical to ensuring children’s
safety and that “almost every day these caseworkers can make life and death
decisions about the children in their care.” It also admits that “if [caseworkers]
really are too busy” to do their job, it would create a safety risk.
Notwithstanding that admission, DFPS does not impose any limit on
caseloads, and it has not conducted a workload study to determine how many
cases a caseworker can safely manage. Moreover, given the lack of reliable, up-
to date-statistics, it is not even clear from the record how many children, on
average, caseworkers are responsible for. As the district court lamented,
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“caseworker caseloads are still something of an open question despite years of
litigation and weeks of trial.”
Nonetheless, even by DFPS’s charitable estimates, most caseloads
exceed the maximum recommended by professional standards and experts. 25
The CWLA recommends a caseload range of 12 to 15 children, while the
Council on Accreditation recommends a range of 8 to 15 children. The most
recent, comprehensive count estimates that nearly half of CVS caseworkers
carry caseloads of 21 children or more, 22% carry caseloads of 26 children or
more, and nearly 10% carry caseloads of 31 children or more. And numbers
supplied by DFPS undersell the scope of the problem.
The data is problematic for a host of reasons. To begin with, DFPS
calculates caseloads in terms of “stages,” each representing a segment of a
child’s care plan, rather than by the number of individual children for whom
each caseworker is responsible. This makes it difficult to assess how many
children each caseworker actually has. DFPS claims that, by its calculation,
caseworkers are responsible for between 17 and 19 children. In calculating
caseload distribution, however, DFPS counted secondary workers—who are
not primary CVS caseworkers and some of whom never interact with the child
face-to-face—as well as part-time caseworkers and non-human workers
“created out of overtime.” Accordingly, the 17 to 19 estimate is exceedingly
generous. Indeed, it is internally inconsistent: DFPS represented to the Texas
Senate Committee on Finance in 2017 that additional caseworkers and salary
increases were necessary to bring the caseload down to 26 children per
________________________
25 The State objects to the use of professional standards to establish a constitutional
violation. Of course, professional standards “do not establish the constitutional minima;
rather, they establish goals.” Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979). They are,
however, a relevant “normative backdrop” against which to evaluate DFPS policies. See
Connor B., 985 F. Supp. 2d at 136.
25
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caseworker. The Assistant Commissioner of CPS, Lisa Black, stated at trial
that she believes caseworkers carry an average caseload of 28.1 children.
Caseload figures reported by neutral outside auditors demonstrate that
the numbers presented by the State at trial are artificially low. A report
commissioned by the Texas Supreme Court states that “CPS caseworkers are
routinely handling around 30 cases,” and “[i]n the larger urban jurisdictions,
caseworkers are commonly assigned 40-plus cases at a time, and the ‘cases’
often involve multiple children from the same family.” The Adoption Review
Committee estimated that caseloads were between 30 and 35 cases per
caseworker, “often twice what is deemed best practice.” Former DFPS
caseworker Beth Miller testified that she routinely carried 40 to 60 cases,
“sometimes higher.” Her former colleague, Katrina Voelkel, similarly testified
that she remembers regularly carrying between 30 and 50 cases. Significantly,
caseload averages “do not reflect spikes in caseloads that can occur when a co-
worker goes on extended leave or quits.” In short, the record amply supports
the district court’s finding that CVS caseloads are extremely high.
Oversized workloads are also the primary cause of the exceedingly high
rate of caseworker turnover. Indeed, the State’s own expert on child welfare
policy, Dr. Jane Burstain, authored an article in 2009 that stated there was “a
fairly direct relationship . . . between caseloads and voluntary turnover.” This
relationship has “remained consistent from year to year.” Over 25% of the
roughly 2,000 CVS caseworkers leave CPS annually. More than 25% of
caseworkers leave within their first year, and 43% leave within their first two
years. And Burstain has said that turnover rates are likely understated, as
they do not account for caseworkers who leave their positions for others within
the agency. To keep pace with the attrition rate, DFPS has to hire
approximately 500 new caseworkers every year just to maintain a full-capacity
26
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workforce of 1,000. 26 DFPS struggles to hire and train workers quickly enough
to fill all of the available positions. As a result, CPS has a high volume of
positions that remain vacant.
Turnover is also an enormous fiscal burden for DFPS. The Sunset
Commission estimated in 2014 that the loss of caseworkers over the prior year
resulted in a $72.7 million impact to the agency. Experts estimate that
retaining even a portion of lost workers for an extra year could save DFPS
roughly $25 million. Turnover is not only costly, “[i]t also creates a negative
environment that reduces productivity as well as feeds more turnover.”
Internal DFPS reviews consistently reveal the general sentiment within CPS
that management practices are “unfair, unsupportive, bullying, unreasonable,
and fear-driven.” Agency employees even expressed concern about retaliation
for their cooperation with an external review commissioned by the state
legislature. Caseworkers feel that agency supervisors are singularly focused
on ensuring that caseworkers meet arbitrary metrics rather than assessing
whether they are making meaningful progress with their cases and providing
quality services. The added stress of keeping up with the requirements of a
purely numbers-driven management approach contributes to caseworkers’
feelings of hopelessness and frustration and reduces overall productivity. The
vicious cycle is never-ending: unmanageable workloads and a caustic work
environment lead to high rates of caseworker turnover; turnover further
exacerbates caseworker burnout, low morale, and a negative agency culture,
which feeds more turnover.
High turnover compounds the workload problem, as caseloads have to be
redistributed as caseworkers leave. New caseworkers do not receive a full
________________________
26 Only 1,000 caseworkers are fully “up to speed” on their caseload. The remaining
1,000 caseworkers will have been at CPS less than two years.
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caseload for at least six months after joining CPS. Accordingly, the remaining
CVS caseworkers are forced to add additional cases to their already bloated
caseloads in the interim. Of the new hires, one out of every six leaves within
the first few months, and the process of hiring and training starts anew as
DFPS scrambles to fill those slots. This means that DFPS cannot relieve
veteran caseworkers of their additional “temporary” workload in a timely
manner. New caseworkers that remain after the training process is complete
face a daunting learning curve. Again, it took the district court 462 hours—
eleven uninterrupted workweeks—just to read the 358,102 pages of casefiles
for 20 PMC children. Reading the information containing in the casefile is, of
course, only the beginning. All in all, DFPS estimates it takes roughly two
years for a caseworker to get up to speed on a new case. The high rate of
turnover year after year means that this arduous process is duplicated many
times over.
The combination of unmanageable caseloads and high caseworker
turnover creates a “cycle of crisis” that allows children to “fall through the
cracks.” 27 A comprehensive agency analysis commissioned by DFPS found that
the workload level “is qualitatively reducing CPS caseworkers’ ability to keep
children safe.” This conclusion is unsurprising. A logical result of inconsistent
and perfunctory contact with caseworkers is that children don’t have material
________________________
27 We wish to make clear that we do not question that CVS caseworkers are incredibly
selfless, dedicated public servants. Caseworkers demonstrate unwavering commitment to the
children in their care on a daily basis, often at great personal cost. We recognize that
caseworkers’ jobs are often thankless. They are not in it for the money or the recognition—
there is too little of either to go around. Caseworkers do this work because they want to make
a difference in the lives of society’s most vulnerable children. We owe them an immense debt
of gratitude. Our discussion of the issues plaguing DFPS is not an indictment of the
individual men and women who do the hard work on the ground. The problems at DFPS are
systemic. Notwithstanding caseworkers’ devotion to their work, DFPS policies and practices
with respect to caseload management make it more difficult for caseworkers to do their jobs
successfully.
28
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No. 18-40057
access to an advocate when something goes wrong in their placement.
Attorneys ad litem and former foster children testified that caseworkers were
often too busy to answer or return phone calls—even after repeated attempts
to reach them. Former foster child Darryl Jackson testified that “it was just
hard to get in contact” with his caseworker, “to even have a conversation with
her, you know, tell her I needed things.” Colleen McCall, the Director of Field
Operations at CPS, stated in an Action Memorandum that “[d]ue to the
shortage of staff, required caseworker documentation, such as Child Service
Plans and documentation of children’s medicals and dentals, are not being
completed timely, if at all.” More than 55% of caseworkers report that “they do
not have adequate time during the workday to successfully do their job.”
Caseworkers are routinely unable to make regular, face-to-face contact
with their children; even when they are able to make visits, the contact is often
“cursory.” As a result of high caseloads and administrative burdens, both of
which are exacerbated by the abysmal state of DFPS’s recordkeeping systems,
CVS caseworkers spend only 26% of their work hours actually interacting with
foster children and families. “[T]his number is clear evidence that the agency
is doing more compliance than care.” John Specia, the DFPS Commissioner at
the time of trial, called this face-time figure “disturbing.”
Several named plaintiffs and former foster children testified that they
would often go months without seeing their primary caseworker. When
caseworkers do manage to visit their foster children in person, the interaction
is likely to be extremely brief. As a reference point, one foster parent of seven
years reported that caseworkers visiting the home typically spent no more than
five minutes with each child. Though caseworkers are required to conduct face-
to-face meetings with their children in private, foster children report that they
are frequently interviewed in the presence of their caregiver and other
children. As a result, reporting issues or abuse—already a difficult and
29
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No. 18-40057
intimidating task for vulnerable children—becomes near-impossible. Under
these conditions, it is entirely unsurprising that children struggle to establish
meaningful, productive relationships with their caseworkers. Children do not
trust their caseworkers to follow-up on problems or to keep them safe.
Moreover, because of turnover, children are cycled through multiple
caseworkers. 28 In some cases, children do not even know who their caseworker
is. This further inhibits the development of a trusting relationship in which
children feel safe communicating their needs or reporting abuse. Former foster
child Patricia Virgil, who had a total of 10 caseworkers throughout her seven
years in DFPS custody, explained that because her caseworkers changed so
frequently, “whenever I had issues in some of the homes, I didn’t know who to
go to, I didn’t know who to trust and so I just—most of the time I just kept my
mouth shut.” Though she attempted to report being sexually abused at one of
her foster homes—apparently through some sort of central DFPS phone line
rather than to her absent caseworker—no one from the agency ever followed
up on the investigation, and her caseworker never once visited her at that
placement.
In many instances, caseworkers lack the time to be thorough when
evaluating the safety or appropriateness of a placement on the front-end. This
means that important red flags may get overlooked. Even assuming that a “red
flag” regarding a placement has been documented, a caseworker would have to
navigate tens of thousands of pages of records that are scattered across
multiple databases and paper files that are not consistently maintained
chronologically in order to stumble upon it. And because records and case files
are outdated and woefully incomplete, there is no guarantee the information
________________________
28 Children exiting foster care in 2008 after spending three years or more in the PMC
had an average of 6.39 caseworkers. There is no evidence that this number has been
significantly reduced.
30
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No. 18-40057
caseworkers’ need was ever recorded in the first place. Caseworkers do not
have the time to perform fundamental aspects of their job; clearly, they do not
have the bandwidth to replicate a needle-in-a-haystack search several times
over for each individual child every time they have to move him. This limited
ability to rigorously evaluate placement choices and permanency plans
substantially increases the chance that a child will be exposed to serious safety
risks. The risk is further compounded by the fact that DFPS does not centrally
track child-on-child abuse and that RCCL investigations have an exceedingly
high error rate.
The evidence in the record establishes that the State is deliberately
indifferent to the risks posed by its policies and practices toward caseload
management. The State is well-aware that caseworkers have unmanageable
workloads. It also knows that high caseloads—which are a direct cause of high
turnover rates—have a negative impact on PMC children’s welfare. Numerous
reports, internal audits, and comprehensive studies of the system conducted
over several years—including some that were commissioned by DFPS itself—
have informed the agency that caseloads are too high and that, as a result,
children are at a greater risk of harm. The findings and recommendations have
been replicated repeatedly over the past two decades. Every single one of the
reports in the record identifies unmanageably high caseloads as one of the most
urgent problems DFPS faces and explicitly warns that high caseloads
compromise caseworkers’ ability to keep children safe.
DFPS has also been cautioned recurrently since 1996 that high turnover
rates exacerbate the caseload problem and contribute to the agency’s inability
to provide quality services to the children and families in its care. The reports
themselves acknowledge that they tend to merely reiterate the problems and
potential solutions that have been proffered to the agency time and time again.
31
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As the Texas Adoption Review Committee lamented, 29 “[s]adly . . . many of the
same problems identified in 1996 still exist in the current child welfare system
in Texas,” and, as a result, “[m]any of our recommendations are, sadly, ones
that have been made in prior years.”
DFPS has repeatedly acknowledged that high caseloads cause the
quality of casework to suffer and put foster children at an increased risk of
harm. Legislative appropriations requests regularly state that caseload
increases result in “significant” child safety issues. Top DFPS officials,
including former Commissioner Specia, admit that there is a causal connection
between high caseloads and negative safety outcomes for children. DFPS is
also aware that frequent turnover exacerbates the workload problem and
further threatens child safety and well-being. The State does not contend that
DFPS was unaware of the numerous reports in the record. Indeed, it cites two
of them several times in its brief on appeal. Many reports were directly
commissioned by the Texas legislature or the judiciary. Commissioner Specia
himself was on the policy development team for the 2010 Texas Appleseed
Report 30 before he was appointed to lead DFPS.
The State contends that DFPS is actively managing caseloads and
making improvements to its workforce. Reasonable steps to cure the problem,
even if ultimately ineffective, would negate the district court’s finding that the
State was deliberately indifferent to the risk of harm. See Farmer, 511 U.S. at
844. The State contends that DFPS has taken several steps to address the risks
associated with high caseloads, including hiring more caseworkers, employing
secondary workers and support staff, and initiating a new program to improve
________________________
29 The Texas Adoption Review Committee was created by former Governor Rick Perry
to take a “hard look” at the Texas foster care system.
30 Texas Appleseed is a nonprofit organization with a focus on child-welfare. The 2010
report was commissioned by the Supreme Court of Texas Permanent Judicial Commission
for Children, Youth, and Families.
32
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No. 18-40057
caseworker training. Under the circumstances, none of these steps constitute
a “reasonable” response to the systemic issues.
The most fundamental problem DFPS faces with respect to addressing
the caseload issue is the lack of informative workload data or internal agency
caseload standards. McCall—who is the individual tasked with ensuring that
CVS caseworkers have manageable caseloads—admitted at trial that she had
“no idea what size of child caseload [] conservatorship workers should have in
order to do their jobs properly.” She conceded that she had never even
attempted to count the number of children, on average, that each CVS
caseworker is responsible for. Indeed, at the time of trial, DFPS had not
performed a comprehensive workload study in over a decade. Despite being
explicitly informed by the State Auditor’s Office in 2009 that the 2004 study
was outdated and should be redone, “DFPS did not implement this
recommendation and continues to use the 2004 information.”
In response to the district court’s 2015 liability opinion, DFPS provided
the Special Masters with a limited workload survey conducted from August
2015 to March 2016 which purported only to estimate how much time was
actually spent on casework during that time period. It made no attempt to
quantify how much time caseworkers should be spending on casework or how
many cases a caseworker could safely manage. Despite being reprimanded by
the district court in 2015 for its inclusion of ISY workers in its workload
estimates, DFPS again included ISY workers in its 2016 study. The Special
Masters extrapolated from the data DFPS provided that an average
caseworker has adequate time to manage 14 PMC cases at one time, to the
exclusion of TMC cases. When the Special Masters asked DFPS to determine
how many additional caseworkers it would need to achieve workloads of 14
children per caseworker, DFPS declined to provide the information, responding
that it was “not feasible” to do so.
33
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No. 18-40057
The district court was prepared to consider caseload standards
promulgated by the agency, but DFPS did not have any. The Special Masters
were prepared to work with DFPS to develop standards, but DFPS declined to
do so. DFPS’s response to inquiries regarding appropriate workload levels is,
essentially, that the volume of cases an individual caseworker can shoulder is
dependent on a number of different variables, including the complexity of the
cases and the caseworker’s level of experience. This is undoubtedly true. But
the fact that caseworkers’ workload capacities will vary, on an individual basis,
according to the types of cases a caseworker is assigned does not obviate the
need for general guidelines that identify an appropriate caseload range. 31
The lack of agency standards colors the lens through which we view the
steps DFPS claims it has taken toward addressing the caseload management
problem. For example, the district court took judicial notice of the fact that the
legislature approved DFPS’s request for additional caseworkers and salary
increases. Considered in a vacuum, asking for more money to hire more people
seems logical. But DFPS has included a request for more money to hire
caseworkers in every appropriations request it has submitted to the legislature
in the past two decades—it is a standard, boilerplate request. And, of course,
DFPS has no choice but to continually hire more caseworkers every year. The
number of children in DFPS custody is steadily increasing. Moreover, because
of turnover, DFPS has to replenish roughly a quarter of its caseworker
________________________
31We agree with the State that DFPS should be afforded a fair amount of flexibility
to vary caseloads on an individual basis based on factors such as case complexity and
caseworker experience. For that reason, caseload caps are an ill-advised solution. Again,
however, the need for flexibility does not absolve DFPS of the responsibility to determine how
many cases, generally, an average caseworker is able to safely handle.
34
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No. 18-40057
workforce every year in addition to the staff necessary to accommodate the
influx of more children. 32
Simply adding more employees has continually proven ineffectual. High-
volume hiring is not a solution. Critically, because of the lack of internal
standards, DFPS does not even know how many caseworkers it actually needs
to reduce the caseloads to safe levels. Without a target number, the agency is
hiring blind. Lastly, while DFPS focuses primarily on high-volume hiring to
fill the gaps left by the mass exodus of caseworkers every year, it repeatedly
fails to address the internal management issues that motivate many
caseworkers to leave so quickly after joining CPS. Thus, not only is a portion
of DFPS’s yearly budget allocated by the state legislature to hire more workers
and reduce caseloads effectively wasted, but the underlying problem remains
unsolved.
The State points to DFPS’s use of secondary workers as evidence that it
has made a reasonable effort to alleviate the burden on caseworkers. The
district court was entitled to find that the risks associated with overburdened
caseworkers were not sufficiently mitigated by these secondary workers,
particularly ISY workers. 33 ISY workers are not nearly as intimately involved
with an individual child’s case as is a primary caseworker. They do not
participate in a child’s long-term placement plan nor are they required to do
any follow up on the child’s needs. Many primary caseworkers have never met
________________________
32 And DFPS generally requests the bare minimum: money for enough caseworkers to
maintain current caseloads and preserve the status quo.
33 The other secondary workers the State points to are akin to support staff. Most of
them have distinct roles within DFPS and perform some ancillary duties related to those
performed by caseworkers. That DFPS employs a single “developmental disability specialist,”
for example, may relieve the caseworker of the additional task of being a subject matter
expert on certain developmental disabilities, but that single employee is not shouldering an
appreciable portion of caseworkers’ workloads. Many secondary workers never interact with
foster children at all. They are not performing the same functions as caseworkers, and they
are an insufficient substitute.
35
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No. 18-40057
a single ISY worker face-to-face. Children will often have a different ISY
worker every visit, and their primary responsibility is to make sure that the
child “is still there.” Current and former foster children testified at trial that
ISY workers’ visits were rarely private and frequently cursory and superficial.
Rarely—if ever—do children establish a meaningful bond with an ISY worker.
Moreover, ISY workers typically have 60 to 70 children on their caseload per
month. Given this caseload volume, it’s a wonder ISY workers have time to
show up everywhere they need to be on a given day and check an attendance
box. It may be the case that ISY workers increase the odds that a foster child
will encounter a “live” individual associated with DFPS on a semi-regular
basis, but they are by no means an adequate or “reasonable” substitute for
primary caseworkers.
The State also cites an initiative called “Transformation” as evidence
that it has taken reasonable steps to address the problem associated with
excessive caseloads and caseworker burnout. The district court’s refusal to
credit Transformation as DFPS “action” negating deliberate indifference is
entirely understandable. To begin with, Transformation was conveniently
rolled out six weeks before trial—more than three years after this lawsuit was
initiated and almost two decades after the 1996 GCPA report identified
turnover and burnout as critical issues plaguing the agency. Unsurprisingly,
at the time of trial, DFPS was able to provide the district court only an outline
of its general plans for the program and could offer no data whatsoever on
actual or even expected impact. Critically, Transformation does not include
concrete plans for a comprehensive CVS workload study, nor does it
contemplate establishing guidelines with respect to appropriate caseload
ranges. Thus, Transformation self-consciously fails to address a fundamental
problem plaguing caseload management: the lack of adequate data and
standards.
36
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No. 18-40057
While Transformation apparently includes some sort of revamped
training programs for new caseworkers, testimony from DFPS personnel
intimately involved with the program indicates that the program was still in
an embryonic stage. 34 The CFSR final report that was issued a year after the
Transformation was initiated noted that “[g]iven the length of time the new
training has been in effect, there was limited data and information available”
regarding the program’s efficacy. It also stated, again after noting “numerous
concerns regarding the quality of the state’s self-assessment of its case
practices and the accuracy of its case ratings,” that “[c]rosscutting concerns . .
. include continued high rates of caseworker turnover.” When pressed by the
district court to explain why, when DFPS has had “internal reviews . . . for
years that have said the same thing and nothing was ever done,”
Transformation had suddenly appeared as an alleged magical solution, DFPS
was unable to provide a clear explanation. 35 Under the circumstances, the
district court’s skepticism was entirely warranted.
DFPS’s relative lack of responsiveness, which is well documented by the
district court, suggests it refuses to address a systemic deficiency in the way it
manages its caseworkers. Moreover, while it is aware merely adding more
caseworkers won’t treat the underlying issue, it wants to be able to point to a
________________________
34 We note that the panel gave both parties the opportunity to file additional pleadings,
including material regarding any progress DFPS has made toward remedying the district
court’s concerns. See M.D. v. Abbott, 18-40057, Doc. No. 00514395622 (Order dated March
21, 2018). Presumably, the State now has some data regarding Transformation’s continued
development. Neither party filed any new pleadings. M.D. v. Abbott, 18-40057, Doc. No.
00514395622 (Order dated March 21, 2018).
35 We note also that studies found DFPS’s approach to policy implementation highly
problematic as a general matter. New policies originate from various parts of the agency and
often lack adequate implementation instructions or a clear point of authority for overseeing
the changes. There is no front-end process to assist employees in evaluating the urgency of
implementing the new policy and no back-end process for evaluating its effectiveness. The
several layers of new policies implemented since 2004 actually complicate caseworkers’ jobs,
forcing them to navigate tangled and sometimes inconsistent compliance requirements.
37
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No. 18-40057
nominal fix. DFPS has repeatedly failed to adequately address the known
caseload management shortcomings over the last several decades. The district
court did not clearly err in concluding that DFPS’s response was not reasonable
given its knowledge of the extent of the problem and that it was deliberately
indifferent.
The State also contests the district court’s causation analysis, arguing
that the quality and volume of the evidence was insufficient to establish: 1)
that high caseloads cause an increased risk of serious harm; and 2) that DFPS
caseloads are, in fact, too high. These arguments are disposed of by our lengthy
discussion of the caseload management problems and their effects above. There
is ample evidence in the record establishing that caseloads are extremely high
and that there is a direct causal link between high caseloads and an increased
risk of serious harm to foster children.
The State asserts, however, that the district court failed to adequately
quantify the risk of harm. But the experiences of the named plaintiffs and
testimony from former foster children, caseworkers, attorneys ad litem, and
experts indicate that abuse is exceedingly common. 36 Several witnesses also
testified that because children don’t have meaningful, face-to-face access to
their caseworkers, abuse frequently goes unreported or uninvestigated. If
children face a legitimate risk of being abused in the system as a baseline
matter, and this risk is significantly exacerbated by overworked caseworkers,
unreliable abuse statistics, and high error rates for abuse investigations, the
risk becomes “objectively intolerable.” Farmer, 511 U.S. at 846.
The district court had a mountain of evidence at its disposal, and it
enjoys ample discretion to credit certain evidence and expert testimony. See,
________________________
36 Moreover, any abuse statistics provided by the State are likely to be artificially
low—after all, the rates do not account for the fact that abuse is underreported or for child-
on-child abuse.
38
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No. 18-40057
e.g., James, 577 F.3d at 619; Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581,
584 (5th Cir. 2003). That a policy or practice of maintaining overburdened
caseworkers directly causes all PMC children to be exposed to a serious risk of
physical and psychological harm is adequately supported by the facts in the
record. Moreover, the principle seems obvious: when workloads exceed
caseworker bandwidth, caseworkers are not able to effectively safeguard
children’s health and well-being. See Hope, 536 U.S. at 737. The State’s
inadequate response in the face of these problems was a violation of its duty to
the children in its care.
2. Monitoring and Oversight: LFC Subclass
There are three critical problems with DFPS’s policies and practices
regarding monitoring and oversight. First, deficient investigatory practices
have yielded a high error rate in abuse investigations. Second, DFPS does not
centrally track instances of child-on-child abuse. Lastly, RCCL maintains
inadequate enforcement policies. All three problems contribute to an increased
risk of serious harm to the LFC subclass.
The record establishes that RCCL has an alarmingly high investigatory
error rate. 37 In 2014, PMU reviewed a random sample of physical abuse
investigations that had occurred between 2012 and 2010 and that resulted in
a UTD disposition. It found that 64.6% of the reviewed abuse cases were
incorrectly determined to be UTD. Almost all of the dispositions had been
reviewed by a superior, but 66.7% had been incorrectly approved. 35.5% of the
incorrect UTD dispositions should have been RTB. A second review of a larger
random sample of UTD dispositions found the rate of error to be even higher—
________________________
37 Again, RCCL investigates any reports of neglect and abuse. The Performance
Management Unit (“PMU”) is responsible for internal quality control for all of DFPS. Abuse
investigations are ascribed one of four outcomes upon completion: 1) Reason to Believe
(“RTB”); 2) Ruled Out (“RO”); 3) Unable to Determine (“UTD”); or 4) Administrative Closure.
39
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No. 18-40057
roughly 75%. Many of the incorrect dispositions involved injuries that required
medical attention. Despite the fact that RCCL found several substantiated
cases of abuse buried in the random sample of UTD dispositions, DFPS took
no action to move any of the children, no penalties were enacted, and no
licenses were revoked. Children were left in homes and facilities where DFPS
knew there was a serious possibility they were being abused. Some of the
incorrect UTD dispositions were related to “negligent supervision”—which is
often DFPS code for an abuse allegation involving another child. 82% of these
negligent supervision UTDs were incorrect.
Nonwithstanding its discovery regarding the UTD determinations,
RCCL did not undertake to perform a similar audit of the investigations
resulting in an RO or an RTB disposition. The vast majority of RCCL abuse
investigations result in an RO disposition. As a comparator, during one
expert’s tenure as a quality control director for social services in Tennessee,
the percentage of investigations resulting in an RO disposition was between 20
and 30% lower than RCCL numbers. The State’s own licensing expert admitted
that RCCL’s very low abuse substantiation rate was concerning and that it
“raised questions” for her. The district court found the likelihood was high that
RO dispositions suffer from an error rate comparable to the UTD pool. The
Director of RCCL claimed that the RO dispositions are probably less worrisome
because “preponderance is a little more clear cut than it is for a UTD finding.”
As the district court correctly pointed out, however, “that explanation does not
account for the fact that the investigators in question were failing to interview
all of the necessary parties, ask pertinent questions, gather all evidence and
key information, and address risks.” 38 In other words, the main issue with the
________________________
38 The district court also noted that, like CVS caseworkers, RCCL investigators are
seriously overburdened. The number of investigators has steadily declined despite the fact
that the number of investigations has remained relatively constant. Though the primary
40
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No. 18-40057
investigations was not merely that there was competing evidence or that
reports were uncorroborated. Rather, the information gathering process was
fundamentally flawed. 39
Of course, the abuse investigation error statistics capture a problem that
plagues the subset of instances in which abuse is actually reported and—at
least nominally—investigated. But, again, the evidence in the record indicates
that abuse is underreported. Several former foster children testified that they
did not know how to report abuse or whom they should tell. Even if children
knew whom to call, many are so distrustful of the system that they are unlikely
to feel comfortable reporting abuse. Worse yet, reports of abuse may receive
only cursory RCCL follow-up, and some are never investigated at all. This
means that children could make an abuse outcry and then languish in the
offending placement indefinitely. As former foster child Kristopher Sharp
explained, “[w]e didn’t feel safe in placements and then nothing happened, and
so—I mean, why—why would you go through the process of even thinking that
something would happen if you were to report something like this?” Under
these circumstances, it is unsurprising that many children choose the path of
least resistance and stay silent.
The available abuse statistics are further warped by the fact that DFPS
does not track child-on-child abuse. If DFPS receives a report that a child has
been abused in some way by another foster child, the incident is investigated
as “negligent supervision” on the part of the caregiver. This means that there
________________________
cause of deficient investigations seems to be a substantial breakdown of the investigatory
process at the procedural level, excessive workload is undoubtedly a contributing factor.
39 Attorney ad litem Anna Ricker testified at trial that she twice reported a foster care
facility in Levelland, Texas for abuse and neglect after she observed several concerning
injuries on her client and other children, many of whom were nonverbal and intellectually
disabled. She also reported that the facility was filthy and ill-kept and that her client’s
personal hygiene was seriously deficient. RCCL ultimately Ruled Out abuse and neglect
without even contacting Ricker to follow-up on her observations.
41
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No. 18-40057
is no centralized record that tracks which children in DFPS custody have a
history of physical or sexual abuse. The only place this information would
potentially be recorded is in the casefile for that individual foster child. If
caseworkers want to find out whether a child will be safe from abuse by another
child in a particular home or facility, they would have to dig through thousands
of pages of individual records to confirm that no one else at that placement has
a history of abusing other children. And individual abuse records may be
incomplete. For example, named plaintiffs J.S. and D.I. were both sexually
abused by other children in their placements who had a history of perpetrating
abuse. A later investigation into the individual records for one of the abusers
revealed old notations of a previous, similar incident involving that child, but
the other’s casefile noted only that he had suffered parental abuse before
entering DFPS custody. In short, because the pertinent information was
inaccessible or entirely unavailable, both J.S. and D.I. were unwittingly placed
in foster homes in which there was a high probability that they would be
exposed to sexual abuse by another child.
RCCL enforcement practices are also problematic. RCCL issues
thousands of citations for violations per year. Of the 6,050 violations cited in
2013, however, only 12 resulted in a corrective action and only one resulted an
adverse action. Only one facility has been closed in the last five years—the
Daystar Facility, where four children had died. Between 1993 and 2002, there
were three deaths due to asphyxiation that resulted from physical restraints.
There were numerous reports of physical, sexual, and psychological abuse
associated with the facility. But its license was not revoked until 2011, several
months after a fourth child’s death was ruled a homicide by asphyxiation due
to physical restraints.
Daystar is a particularly tragic example. Nevertheless, studies and
reports that DFPS was indisputably aware of—the State cites them in its own
42
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No. 18-40057
briefing on multiple occasions—stated that its “collaborative” approach to
compliance was simply not working. This is evidenced by the fact that there is
a very high rate of repeat violations, as licensees do not perceive that they will
be held accountable for their malfeasance. Repeat violators are not a new
phenomenon. In 2011, PMU found that 65.6% of residential care facilities had
been cited for repeat deficiencies. By 2012, that number had leapt to 77.6%.
And the collaborative approach can take up to a year or longer to achieve
compliance. As a result, children are left in facilities that repeatedly violate
standards while the state attempts to “collaborate” with the facility. As the
Sunset Commission explained, “to go slow on enforcing regulations designed to
protect children from safety risks out of concern that some providers may have
trouble meeting such protective standards is essentially to accept a level of risk
to the children simply because the state needs providers, regardless of their
quality.” Most of the repeat violations occurred on the highest-risk standards,
such as criminal history check requirements.
The State had knowledge of these problems. Moreover, that high error
rates in abuse investigations and inadequate enforcement policies place
children at a substantial risk of serious harm seems painfully obvious. See
Hope, 536 U.S. at 737; Farmer, 511 U.S. at 842. Reports regarding RCCL’s
investigatory shortcomings date back over a decade. These deficiencies have
been periodically reiterated to the agency. The Director of RCCL participated
in the review of the UTD dispositions. The Assistant Commissioner of CCL
confirmed that the error findings were reported all the way up the chain of
command to Commissioner Specia. The State has elsewhere relied in part on
various reports that include critiques of its enforcement practices throughout
the litigation.
Yet DFPS has not done any significant work to improve on these
deficiencies. DFPS apparently held a mandatory one-day meeting to impress
43
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No. 18-40057
upon its staff the importance of maintaining high standards for investigations,
but RCCL policies and procedures apparently remained unchanged. Similarly,
reports have consistently flagged inadequate oversight in licensing and
enforcement as a critical problem area. But DFPS rarely heeds the advice of
risk analysts to impose administrative penalties and ignores recommendations
from the internal quality control experts at PMU to revoke licenses at non-
compliant facilities.
In short, DFPS is aware of the systemic deficiencies plaguing its
monitoring and oversight practices. It also knows that these deficiencies pose
a significant safety risk for foster children. Despite this knowledge, DFPS has
not taken reasonable steps to cure the problems. Indeed, it is not clear that it
has taken any steps at all. The district court correctly found that the State was
deliberately indifferent to a substantial risk of serious harm to the LFC
subclass as a result of its insufficient monitoring and oversight, and that these
deficiencies are a direct cause of the constitutional harm.
3. Placement Array: LFC Subclass
The district court noted that, because of what amounted to practical
limitations on placement availability, children are frequently placed out of
region or are separated from their siblings. Furthermore, children are placed
in facilities that are not necessarily appropriate for their service level or needs.
Sexually aggressive children are not always placed in single-child homes or
highly supervised environments. 40
________________________
40 The State is not constitutionally required to place every child that has been
sexualized through abuse or otherwise in a single family home. Indeed, many of them may
benefit from a structured GRO environment or from therapeutic treatment at an RCL. To the
extent children are being blindly placed with sexually aggressive children that pose a serious
risk to their bodily integrity because caseworkers don’t have the time or the information they
need to make an informed placement decision, the issue is more aptly addressed through
DFPS’s policies toward caseloads and caseworkers and the failure to flag child-on-child abuse
appropriately.
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Certainly, placing a child in-region, in a placement ideal for his service
level and personal needs, or with his siblings when appropriate would be good
practice. Plaintiffs have failed to demonstrate, however, that failing to do so in
most or all circumstances puts children at a risk of harm serious enough to
amount to a deprivation of their substantive due process rights. There is no
“responsibility to [] maximize[] [foster children’s] personal psychological
development,” Griffith, 899 F.2d at 1439, and children have no “right to a
stable environment” or a right “not to be moved from home to home,” despite
the “significant literature which indicates a traumatic effect of such moves on
young children.” Drummond, 563 F.2d at 1208. Even accepting the district
court’s—undoubtedly correct—finding that out-of-region placements and
suboptimal placement settings can have negative effects on a child’s
psychological health, those negative effects are not constitutionally cognizable
harms. See, e.g., Feagley, 868 F.2d at 1441. Unlike severely overburdened
caseworkers or inadequate investigations and placement licensing, inadequate
placement array does not unacceptably increase the risk that a child will be
exposed to serious physical or psychological harm.
Importantly, the availability of foster homes, particularly those that
provide the most “home-like,” “least-restrictive” environments, is something
uniquely out of the State’s control. Of course, an increase in funding that would
allow DFPS to pay more potential foster families and may improve recruitment
efforts, but DFPS cannot force people to volunteer. Regional availability in
particular is affected by the population sizes of the counties in that region, the
volume of children being removed from their homes in a particular county or
region, and the ratio of rural to urban communities. Moreover, as the district
court noted in Connor B., “neither bolstering the administrative ranks nor
obtaining the requisite number of foster homes will resolve the ongoing
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placement challenges related to ensuring a child’s unique fit with a prospective
placement.” 985 F. Supp. 2d at 144.
Even if the policies toward its placement array were somehow
constitutionally infirm, the district court erred in concluding that the State
was deliberately indifferent. Specifically, the State has evinced at least some
concerted effort to remedy the problem. “Foster Care Redesign” (“Redesign”),
which was initiated in 2010, does away with the “open enrollment” system
previously in place with DFPS’s private providers. While “open enrollment”
essentially allows private providers to run operations wherever they choose,
Redesign contracts with Single Source Continuum Contractors which provide
a full range of services tailored to meet the needs of a particular geographic
area. According to the State, Redesign will allow DFPS more control over the
geographic distribution of its placements, and will be responsive to service
needs in a specific region.
In finding that Redesign did not suffice to demonstrate that the State
responded reasonably to the risk, the district court stated that it was
“encouraged by the idea . . . but discouraged by its results.” It noted that, at
the time of the final order, Redesign was operating in less than 2% of Texas. It
is true that Redesign has taken a while to get off the ground, and the pilot
contract with the first service provider was unsuccessful. Since then, however,
the State has entered into new contracts that have adjusted for some of the
issues the State encountered in its pilot roll-out. The legislature recently
granted DFPS authorization to expand Redesign to three new regions.
Redesign is still a fairly new and innovative program. But slow roll-out
of an unprecedented style of managing private contractors makes sense for a
number of reasons. As the plaintiffs themselves noted in their comments
regarding the Special Master’s Implementation plan, it is difficult to know
whether the model—which increases reliance on private contractors—will
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maintain sufficient safeguards. Consequently, slow, measured,
implementation with adequate time to assess the program’s ability to properly
safeguard children’s welfare is prudent. Additionally, rolling out the program
in stages allows the agency to adapt to provider feedback and improve
implementation in other areas.
That Redesign has been met with limited success is of no moment. Cf.
Farmer, 511 U.S. at 844. Limited placement array is a uniquely complicated
problem. The State is thinking creatively and attempting to address the issue
with placement distribution. Redesign may not be the answer, but it’s hardly
what the district court called a “half-baked” attempt to remedy a complex
problem.
Accordingly, the district court erred in concluding that inadequate
placement array causes constitutionally cognizable harm to the LFC subclass
and that the State was deliberately indifferent to a substantial risk of serious
harm.
4. Foster Group Homes: FGH Subclass
The district court found that a combination of a lack of policies against
mixing children of various ages, sexes, and service levels and insufficient
oversight rendered FGHs intolerably unsafe. In many cases, FGHs contain
more children than traditional foster family homes and could be “hectic.” FGHs
generally have the same number of caregivers as foster family homes. The
district court found that the “most egregious problem” was that FGHs lacked
24-hour awake-night supervision. Essentially, the district court reasoned,
FGHs “simultaneously provide[] fewer benefits than foster family homes and
fewer safeguards than congregate care facilities.”
There are several issues with the district court’s analysis. To begin with,
there is a critical causal flaw. The district court does not, for example, identify
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how mixing ages, sexes, and service levels 41 in FGHs is significantly different
from doing so in foster family homes—other than that there were more children
to keep track of and the ratio of supervisors to children is lower in FGHs. It
notes that DFPS allows for young girls and teenage boys to be placed together,
but again does not explain how this is different from its policies toward foster
family homes, which are not constitutionally defective. Moreover, plaintiffs’
expert’s analysis was flawed. It focused on the risk present when a number of
unrelated children are placed together; indeed, this was a key qualifier of her
opinion on the risk of harm in FGHs. But the data she used did not indicate
whether some of the data on FGH age ranges could be accounted for by the fact
that sibling groups were placed together. Notably, it is undisputed that FGHs
are a critical placement option for large sibling groups DFPS is attempting to
keep together.
DFPS has also remedied what the district court called the “most
egregious” problem with FGHs. When the State appealed the district court’s
initial grant of injunctive relief, this court construed the district court’s
mandate narrowly to demand DFPS require 24-hour supervision in FGHs and
denied the stay. There is no dispute that the State appears to be complying
with that mandate. The emphasis on awake-night monitoring indicates that
the primary concern is not the “mixing” component; instead, lack of adequate
supervision makes the mixing of age, sex, and service levels a less safe practice.
In sum, plaintiffs’ have failed to articulate how and to what degree the
mixing of children of different ages and service levels—a policy that is
constitutionally tolerable in similar circumstances—amplifies the risk of harm
________________________
41Again, to the extent children are being blindly placed with sexually abusive children
that pose a serious risk to their bodily integrity because caseworkers don’t have the time or
the information they need to make an informed placement decision, that issue is more closely
related to DFPS’s policy toward caseloads and caseworkers, insufficient monitoring and
oversight, and the failure to flag child-on-child abuse appropriately.
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to children absent the corresponding problem regarding supervision. Though
there may be risks to combining children with different needs in a single living
space, doing so is not per se unconstitutional—all states do so in a variety of
different settings in a way that avoids violating children’s rights. To the extent
that the lack of awake-night supervision may have sustained a constitutional
claim under the circumstances, the remaining policies and their effects do not
cause FGH children an amplified risk of harm sufficient to overcome the
threshold hurdle.
V. Class Certification
The State devotes half a page in its nearly 100-page brief to its class
certification argument. It incorporates by reference its general claim that
plaintiffs have failed to demonstrate class-wide harm and thus that the district
court abused its discretion in certifying the General and Subclasses. The State
does not brief any other Rule 23-specific arguments. While the State mentions
in passing “the unavailability of appropriate single-stroke injunctive relief” it
references only prior sections in its brief that recount its unrelated objections
to the sufficiency of the evidence and the district court’s fact-finding.
Accordingly, this and other Rule 23-specific arguments are waived for failure
to adequately brief them. See United States v. Lindell, 881 F.2d 1313, 1325 (5th
Cir. 1989). 42
________________________
42 For example, the State does not contend that the named plaintiffs are no longer
viable class representatives. In any case, the district court did not abuse its discretion in
determining that the other requirements of Rule 23(b)(2) had been met. Its finding that
plaintiffs had satisfied commonality because their claims “depend[ed] upon a common
contention . . . that is capable of classwide resolution” is adequately supported by the record.
See M.D. I, 675 F.3d at 838 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).
Similarly, there was sufficient evidence establishing the individual plaintiffs’ claims were
“typical of the class claims.” Dukes, 564 U.S. at 353 (quoting Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 157–58 (1982)). Lastly, the district court correctly concluded that the named
plaintiffs were adequate representatives who would “take an active role in and control the
litigation to protect the interests of the absentees.” Stirman v. Exxon Corp., 280 F.3d 554,
563 (5th Cir. 2002).
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We understand the State to be primarily arguing that certification was
improper because the class members have not been “harmed in essentially the
same way.” Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir.
2007). Because we conclude that the State’s policies with respect to caseload
management, monitoring, and oversight violate plaintiffs’ right to be free from
a substantial risk of serious harm on a class-wide basis, we hold that the
General Class and the LFC subclass were properly certified. However, the
district court erred in concluding that foster group homes violate plaintiffs’ due
process right and that the FGH subclass suffers class-wide constitutional
harm. Accordingly, the FGH subclass must be decertified. Our liability
findings obviate the need for further discussion of the class certification issue.
VI. The Remedy
The district court entered an expansive injunction mandating dozens of
specific remedial measures. While the district court was entitled to grant the
plaintiffs injunctive relief, the injunction is significantly overbroad.
Accordingly, we VACATE the injunction and REMAND with instructions to
remove the remedial provisions related to placement array and FGHs, and to
strike provisions that are not necessary to achieve constitutional compliance.
It is axiomatic that “federal courts must vigilantly enforce federal law
and must not hesitate in awarding necessary relief.” Horne v. Flores, 557 U.S.
433, 450 (2009). This responsibility includes, when appropriate, issuing
permanent injunctions mandating institutional reform. See id. at 448–50. In
general, however, institutional reform injunctions are disfavored, as they
“often raise sensitive federalism concerns” and they “commonly involve[] areas
of core state responsibility.” Id. at 448. Indeed, a sweeping permanent
injunction here “commit[s] this Court to the near-perpetual oversight of an
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already-complex child-welfare regime.” Connor B., 985 F. Supp. 2d at 157. An
intrusion of this scale should not be taken lightly. 43
The Supreme Court has explained that remedies fashioned by the federal
courts to address constitutional infirmities “must directly address and relate
to the constitutional violation itself,” and “federal court decrees exceed
appropriate limits if they are aimed at eliminating a condition that does not
violate the Constitution or does not flow from such a violation.” Milliken v.
Bradley, 433 U.S. 267, 282 (1977). The district court may not, therefore,
“order[] relief beyond what [is] minimally required to comport with the
Constitution’s” prohibition on arbitrary deprivation of plaintiffs’ substantive
due process right. Gates, 501 F.2d at 1303. Accordingly, injunctions must be
“narrowly tailor[ed] . . . to remedy the specific action which gives rise to the
order.” Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d
579, 586 (5th Cir. 2013) (internal quotation omitted).
But “[i]t is well-settled that, under the fourteenth amendment, a court
may require remedial measures that the Constitution does not of its own force
initially require.” Ruiz VII, 679 F.2d at 1155. Moreover, an injunctive remedy
“does not fail narrow tailoring simply because it will have positive effects
beyond the plaintiff class.” Brown v. Plata, 563 U.S. 493, 531 (2011).
Accordingly, if certain mandated provisions are necessary to achieve
constitutional compliance, they are not per se improper on the basis that they
achieve “collateral” benefits not directly related to the appropriately identified
systemic defect. See id.
While courts are required to afford the State deference in administration
of its state systems and “the [first] opportunity to correct [its own] errors,”
Lewis v. Casey, 518 U.S. 343, 362 (1996), these principles are less applicable
________________________
43 Nor do we suggest the conscientious district judge took it lightly.
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where, as here, the State has had ample opportunity to cure the system’s
deficiencies. The State has been aware of the district court’s concerns for
several years, and the State cannot claim that the court’s mandate was
unclear. It has repeatedly refused to work with the court-appointed Special
Masters in creating corrective policies and largely ignored the district court’s
orders that it implement policies and procedures to minimize the risk of harm
to the PMC class. Moreover, the State has had a wealth of information at its
disposal detailing the structural deficiencies in its foster care system since long
before plaintiffs filed this lawsuit, and it has failed to take meaningful
remedial action. The district court was entitled to worry about the State’s
motivation to self-correct and was justified in doubting that it would achieve
compliance independently. 44
We understand the district court’s frustration, and we agree remedial
action is appropriate. The current injunction, however, goes well beyond what
is necessary to achieve constitutional compliance. Gates, 501 F.2d at 1303. And
it is far from narrowly tailored. Daniels Health, 710 F.3d at 586. Many of the
injunction provisions fail to address the specific problems giving rise to the
constitutional violation. Others, while more closely hewed to the violative
practices, aim too high. These provisions may reflect the “best practices” of the
child-welfare community or the policy preferences of the district court, but they
go far “beyond what [is] minimally required to comport with the Constitution’s”
prohibition on arbitrary deprivation of plaintiffs’ substantive due process right.
Gates, 501 F.2d at 1303.
For ease of reference, we will discuss the injunction in five “sections.”
The first two sections will review injunction provisions that are directly related
________________________
We note also that the State has been granted nearly one-billion dollars in additional
44
DFPS funding. This alleviates many funding-related concerns about the injunction.
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to the caseload management and the monitoring and oversight violations.
Some of these provisions are valid, but many constitute judicial overreach. The
next two sections will review provisions that target the alleged placement
array and foster group home violations. These provisions must be struck, as
we conclude that neither of these alleged deficiencies constitutes a due process
violation. The final section will discuss what can be described as “crossover”
provisions, which address more than one violation simultaneously or are aimed
at remedying other general ailments of the system that the district court
identified. Only those crossover provisions narrowly tailored to address the
caseload management and monitoring and oversight violations are proper.
Caseloads
The primary issue with DFPS’s management of its caseworker caseloads
is the lack of adequate data and standards. Accordingly, it is reasonable for an
injunctive remedy to require the agency to generate reliable data regarding
current caseloads and to establish internal guidelines that identify a flexible
range of caseloads that the agency determines caseworkers can safely manage.
DFPS should hire with the determined caseload range in mind. Additionally,
provisions that are calculated to remedy the caseworker turnover problem are
generally proper. The following provisions directly address the caseload
management violation and are therefore valid:
1. Effective immediately, DFPS shall track caseloads on a child-only
basis, as ordered by the Court in December 2015. Effective
immediately, DFPS shall report to the monitor(s), on a quarterly
basis, caseloads for all staff, including supervisors, who provide
primary case management services to children in the PMC class,
whether employed by a public or private entity, and whether full-time
or part-time. Data reports shall show all staff who provide case
management services to children in the PMC class and their
caseloads. In addition, DFPS’s quarterly reporting shall include the
number and percent of staff with caseloads within, below and over the
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range of 14 to 17 45 children, by office, by county, by agency (if private)
and statewide. Reports will include the identification number and
location of individual staff and the number of PMC children and, if
any, TMC children to whom they provide case management.
Caseloads for staff, as defined above, who spend part-time in caseload
carrying functions and part-time in other functions must be pro-rated
accordingly. The caseload range for staff with mixed caseloads, for
example caseworkers serving both PMC and TMC children, shall be
14 to 17 children’s cases, and each TMC child is to be afforded the
same weight as a PMC child. Reporting will be by office, by county, by
agency (if private) and statewide.
2. Effective May 2018, DFPS shall ensure statewide implementation of
the CPS Professional Development (CPD) training model, which
DFPS began to implement in November 2015.
3. Effective May 2018, DFPS shall ensure statewide implementation of
graduated caseloads for newly hired CVS caseworkers, and all other
newly hired staff with the responsibility for primary case
management services to children in the PMC class, whether employed
by a public or private entity.
One of the most controversial injunction items is the district court’s
designation of a “caseload cap.” Given the lack of internal DFPS standards and
the agency’s failure to supply the Special Masters with a caseload range it
deemed appropriate and safe, the district court essentially adopted national
caseload standards and imposed a mandatory caseload range of 14 to 17
children. While caseload caps strike at the heart of the workload problem, we
agree with the State that they are too blunt a remedy for a complex problem.
They constitute “relief beyond what [is] minimally required” to remedy the
constitutional violation. Gates, 501 F.2d at 1303
To begin with, caps would only exacerbate DFPS’s staffing crisis in the
short-term. Setting aside the fact that imposing a ceiling is logistically
impossible given the staffing constraints, it would also generate a deluge of
________________________
45For reasons that will be explained more thoroughly below, references to a caseload
cap or an enforced caseload range are improper. To the extent otherwise valid provisions
reference caseload caps, these caps shall be deleted from those provisions.
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paperwork and force DFPS to rapidly redistribute cases among its
caseworkers. This would undoubtedly be destabilizing for all of the parties
involved, including the children in DFPS’s care. Caps also fail to account for
the fact that two caseloads that each consist of, say, 16 children can generate
vastly different amounts of work. A more flexible method of distributing
caseloads that takes into account the complexity of the cases and the
experience of the caseworker (and taking into consideration, inter alia, a long
list of possible factors such as travel distances and language barriers) is, as a
general matter, a sound policy. DFPS absolutely should determine how many
cases, on average, caseworkers are able to safely carry. Based on its
determination, DFPS should establish generally applicable, internal caseload
standards. These standards should serve as a rough guide for supervisors who
are handling caseload distribution, and they should inform DFPS’s hiring
goals. But a hard cap on caseloads would completely hamstring DFPS’s ability
to approach caseload distribution in a holistic, nuanced way. In short,
mandatory caps are not only an extreme remedy, they are imprecise.
Several other caseload-specific injunction provisions are also improper,
as they either exceed what is required to achieve constitutional compliance or
do not directly address the problems giving rise to the caseload management
violation. Moreover, some provisions would unnecessarily add to the volume of
work for which caseworkers are responsible, and would increase the time spent
managing paperwork and compliance and administrative burdens. The
following provisions are invalid:
1. Effective June 2018, DFPS shall ensure that the full-time staff,
including supervisors, who provide case management services to
children in the PMC class, whether employed by a public or private
entity, have a caseload within or below the range of 14 to 17 children.
Caseloads for staff must be pro-rated for those who are less than full-
time. Caseloads for staff who spend part-time in caseload carrying
work and part-time in other functions must be pro-rated accordingly.
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The caseload range for staff with mixed caseloads, for example
caseworkers serving both PMC and TMC children, will also be 14 to
17 children’s cases, and each TMC child’s case will be afforded the
same weight in the caseload calculation as a PMC child.
2. Effective immediately, DFPS shall commence recruiting, hiring and
training staff, and ensuring any private entities that are charged by
DFPS to provide case management services to children in the PMC
class do the same, to ensure that staff who provide case management
services to children in the PMC class, whether employed by a public
or private entity, have a caseload within or below the range of14 to 17
children.
3. Effective May 2018, DFPS shall ensure that before any new CVS (or
private agency) caseworker assumes primary case management
responsibility for a full caseload range of 14 to 17 children, they
successfully complete a comprehensive training program for new
workers and pass a competency examination.
4. Effective immediately, DFPS shall ensure that monthly face-to-face
visits between caseworkers and children in the PMC class occur as
required. The caseworkers’ visits with children in the PMC class must
include time with the child separate from the caregiver(s) and other
children, if the child is verbal. Effective immediately, DFPS shall
ensure that caseworkers document monthly, private meetings with
eachverbal PMC child in their care, unless the reason for
noncompliance is fully documented in the child’s electronic case
record.
5. Effective immediately, DFPS shall ensure adequate training on its
child visitation policies for all caseworkers responsible for visiting
children in the PMC class.
6. Effective immediately, DFPS shall track caseworker-child visits and
report quarterly to the monitor(s) on the number of monthly
caseworker-child visits required and the percent and number that
occurred. 46 DFPS shall report for all referenced visits whether they
involved face-to-face time with the child separate from the
caregiver(s) and other children, if the child is verbal.
7. Effective immediately, DFPS shall ensure caseworkers who conduct
visits with PMC children follow the agency’s contact guidelines, which
they must document in the child’s electronic case record based on
monthly visits with a child. The guidelines must require caseworkers,
at least, to complete an assessment of the child’s safety, including an
________________________
46 Notably, it appears DFPS already tracks this statistic.
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assessment of the placement; a confirmation that the child was
interviewed individually, separately and privately from the caregiver
and other children, if the child is verbal; a discussion of the form(s) of
discipline being used in the placement; and a documented review of
the child’s medical, mental health, dental and educational progress
and needs.
8. DFPS shall ensure that supervisors who oversee caseworkers
managing the cases of children in the PMC class have no more than
seven workers assigned to them. Supervisory workloads must be pro-
rated for supervisors who are less than full-time. Workloads for
supervisors who spend part-time in supervisory work and part-time
in other functions, which includes carrying a case, must be pro-rated
accordingly.
9. Supervisors who oversee caseworkers serving PMC children shall not
directly carry a caseload unless there is a documented emergency
requiring the supervisor to do so.
10. Within 30 days of the Court’s Final Order date, DFPS shall eliminate
the use of I See You secondary workers and designate all secondary
workers as primary caseworkers. 47
Monitoring and Oversight
Most of the injunction provisions relating exclusively to the monitoring
and oversight violation are reasonably targeted toward remedying the
identified issues. The following provisions are valid:
1. DFPS shall ensure that reported allegations of child abuse and neglect
involving children in the PMC class are investigated; commenced and
completed on time consistent with the Court’s Final Order; and
conducted taking into account at all times the child’s safety needs.
The monitor(s) shall periodically review the statewide system for
appropriately receiving, screening and investigating reports of abuse
________________________
47 We do not understand the logic of this provision. The district court made clear that
secondary workers were inappropriate substitutes for caseworkers because they had
significantly less responsibilities and carried large caseloads. Furthermore, it is not clear
that all of these workers are equipped to be caseworkers (or even that they want to). It seems
somewhat bizarre to force DFPS to absorb all of its secondary caseworkers onto its primary
team.
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and neglect involving children in the PMC class to ensure the
investigations of all reports are commenced and completed on time
consistent with Items 9-16 of this Section of the Court’s Final Order
and conducted taking into account at all times the child’s safety
needs.
2. Effective May 2018, DFPS shall ensure that all caseworkers and
caregivers are trained to recognize and report sexual abuse, including
child on child sexual abuse.
3. Effective March 2018 and ongoing thereafter, DFPS shall, in
accordance with existing DFPS policies and administrative rules,
initiate Priority One child abuse and neglect investigations involving
children in the PMC class within 24 hours of intake. (A Priority One
is by current policy assigned to an intake in which the children appear
to face a safety threat of abuse or neglect that could result in death or
serious harm.)
4. Effective March 2018 and ongoing thereafter, DFPS shall, in
accordance with existing DFPS policies and administrative rules,
initiate Priority Two child abuse and neglect investigations involving
children in the PMC class within 72 hours of intake. (A Priority Two
is assigned by current policy to any CPS intake in which the children
appear to face a safety threat that could result in substantial harm.)
5. Effective March 2018 and ongoing thereafter, DFPS shall, in
accordance with DFPS policies and administrative rules, complete
required initial face-to-face contact with the alleged child victim(s) in
Priority One child abuse and neglect investigations involving PMC
children as soon as possible but no later than 24 hours after intake.
6. Effective March 2018 and ongoing thereafter, DFPS shall, in
accordance with DFPS policies and administrative rules, complete
required initial face-to-face contact with the alleged child victim(s) in
Priority Two child abuse and neglect investigations involving PMC
children as soon as possible but no later than 72 hours after intake.
7. Effective March 2018 and ongoing thereafter, DFPS shall track and
report all child abuse and neglect investigations that are not initiated
on time with face-to-face contacts with children in the PMC class,
factoring in and reporting to the monitors quarterly on all authorized
and approved extensions to the deadline required for initial face-to-
face contacts for child abuse and neglect investigations.
8. Effective March 2018, DFPS shall, in accordance with DFPS policies
and administrative rules, complete Priority One and Priority Two
child abuse and neglect investigations that involve children in the
PMC class within 30 days of intake, unless an extension has been
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approved for good cause and documented in the investigative record.
If an investigation has been extended more than once, all extensions
for good cause must be documented in the investigative record.
9. Effective March 2018 and ongoing thereafter, DFPS must track and
report monthly all child abuse and neglect investigations involving
children in the PMC class that are not completed on time according
to this Final Order. Approved extensions to the standard closure
timeframe, and the reason for the extension, must be documented and
tracked. If an investigation has been extended more than once, all
extensions for good cause must be documented in the investigative
record.
10. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, observe or interview the
alleged child victims in Priority One child abuse or neglect
investigations within 24 hours of intake.
11. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, observe or interview the
alleged child victims in Priority Two child abuse or neglect
investigations within 72 hours of intake.
12. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, complete Priority One and
Priority Two child abuse and neglect investigations within 30 days of
intake, consistent with DFPS policy.
13. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, complete Priority Three,
Priority Four and Priority Five investigations within 60 days of
intake, consistent with DFPS policy.
14. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, complete and submit
documentation in Priority One and Priority Two investigations on the
same day the investigation is completed.
15. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, complete and submit
documentation in Priority Three, Priority Four and Priority Five
investigations within 60 days of intake.
16. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, finalize and mail notification
letters to the referent and provider(s) in Priority One and Priority
Two investigations within five days of closing a child abuse and
neglect investigation or completing a standards investigation.
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17. Effective immediately, the State of Texas shall ensure RCCL
investigators, and any successor staff, finalize and mail notification
letters to the referent(s) and provider(s) in Priority Three, Priority
Four and Priority Five investigations within 60 days of intake.
18. By July 2018, RCCL, and/or any successor entity charged with
inspections of child care placements, will identify, track and address
concerns at facilities that show a pattern of contract or policy
violations. Such facilities must be subject to heightened monitoring
by DFPS and any successor entity charged with inspections of child
care placements and subject to more frequent inspections, corrective
actions and, as appropriate, other remedial actions under DFPS’
enforcement framework.
19. Effective immediately, RCCL and/or its successor entity, shall have
the right to directly suspend or revoke the license of a placement in
order to protect children in the PMC class.
20. Effective immediately, RCCL, and any successor entity charged with
inspections of child care placements, must consider during the
placement inspection all referrals of, and in addition all confirmed
findings of, child abuse/neglect and all confirmed findings of corporal
punishment occurring in the placements. During inspections, RCCL,
and any successor entity charged with inspections of child care
placements, must monitor placement agencies’ adherence to
obligations to report suspected child abuse/neglect. When RCCL, and
any successor entity charged with inspections of child care
placements, discovers a lapse in reporting, it shall refer the matter to
DFPS, which shall immediately investigate to determine appropriate
corrective action, up to and including termination or modification of a
contract.
21. Effective March 2018, DFPS shall implement within the child’s
electronic case record a profile characteristic option for caseworkers
or supervisors to designate PMC and TMC children as “sexually
abused” in the record if the child has been confirmed to be sexually
abused by an adult or another youth.
22. Effective March 2018, DFPS shall document in each child’s records
all confirmed allegations of sexual abuse in which the child is the
victim.
23. Effective immediately, all of a child’s caregivers must be apprised of
confirmed allegations at each present and subsequent placement.
24. Effective immediately, if a child has been sexually abused by an adult
or another youth, DFPS must ensure all information about sexual
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abuse is reflected in the child’s placement summary form, and
common application for placement.
25. Effective immediately, all of the child’s caregivers must be apprised
of confirmed allegations of sexual abuse of the child at each present
and subsequent placement.
26. Effective immediately, DFPS shall ensure a child’s electronic case
record documents “child sexual aggression” and “sexual behavior
problem” through the profile characteristic option when a youth has
sexually abused another child or is at high risk for perpetrating
sexual assault.
27. Effective immediately, if sexually aggressive behavior is identified
from a child, DFPS shall also ensure the information is reflected in
the child’s placement summary form, and common application for
placement.
28. Effective immediately, DFPS must also document in each child’s
records all confirmed allegations of sexual abuse involving the child
as the aggressor.
29. Effective immediately, all of the child’s caregivers must be apprised
at each present and subsequent placement of confirmed allegations of
sexual abuse involving the PMC child as the aggressor.
30. Within 90 days of the Court’s Final Order, DFPS shall create a clear
policy on what constitutes child on child sexual abuse. Within 6
months of the Court’s Final Order, DFPS shall ensure that all staff
who are responsible for making the determinations on what
constitutes child on child sexual abuse are trained on the policy.
31. Effective March 2018, DFPS shall ensure that all abuse and neglect
referrals to the 24-hour hotline 48 regarding a foster home where any
PMC child is placed, which are not referred for a child abuse and
neglect investigation, are shared with the PMC child’s caseworker
and the caseworker’s supervisor within 48 hours of DFPS receiving
the referral. Upon receipt of the information, the PMC child’s
caseworker will review the referral history of the home and assess if
there are any concerns for the child’s safety or well-being, and
document the same in the child’s electronic case record.
The monitoring and oversight provisions pertaining to the establishment
of the 24-hour hotline are in need of revision because they do not address the
________________________
48 The injunction provision requiring the establishment of a new 24-hour hotline is
invalid for reasons discussed below. It is, however, proper for the district court to require that
RCCL promptly communicate allegations of abuse to the child’s caseworker.
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discrete issues underlying the violation: the manner in which RCCL
documents and investigates allegations of abuse. To the extent that the court
is worried about underreporting, this can be remedied by mandating that
caseworkers provide children with the appropriate point of contact for
reporting issues. The problem with RCCL follow-up is sufficiently addressed
by other valid provisions.
Other hotline-related provisions unnecessarily increase the time spent
managing administrative burdens. Mandated RCCL caseload caps are
misguided for substantially the same reasons that caseload caps are ill-advised
in the primary caseworker context. Again, however, it would be reasonable for
the court to require a comprehensive workload study and the establishment of
internal guidelines for caseload ranges based on what DFPS determines RCCL
investigators can safely manage. Lastly, requiring the State to publish all
licensing inspections on its public website is not only unnecessary, but it also
implicates confidentiality concerns. Accordingly, the following provisions are
invalid:
1. Effective immediately, DFPS shall ensure that it maintains a
statewide, 24-hour hotline accessible by PMC children in DFPS
custody to report abuse and neglect. The hotline shall receive, screen
and assign for investigation reports of maltreatment of children in the
PMC class.
2. In order to ensure that PMC children have access to the 24-hour
hotline to report abuse and neglect, within 30 days of the Court’s
Final Order, DFPS shall either require all foster homes and
therapeutic foster homes housing PMC children to maintain a
landline phone accessible to the child in the home, with the toll-free
hotline number appended to the landline or, in the alternative, DFPS
shall present an alternative plan to the Court within 30 days of the
Court’s Final Order to ensure PMC children have access to the hotline
to report abuse and neglect.
3. Effective March 2018, and ongoing thereafter, DFPS shall ensure the
central case record of every child in the PMC class includes
documentation confirming the method(s) discussed with the child for
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notifying DFPS if the child needs to report abuse or neglect. For
children who are verbal, the documentation must include the date the
reporting methods were discussed with the child and confirmation of
their level of understanding. The discussion with the child must occur
within 48 hours of entering any new placement.
4. Within 60 days of the Court’s Final Order, all calls to the DFPS 24-
hour hotline shall be recorded. All recorded calls shall be stored for at
least two years using a call recording system. Recordings shall be
made available to the monitor(s) for monitoring and verification
purposes.
5. Effective March 2018, and ongoing thereafter, DFPS shall ensure that
a well trained, experienced and qualified supervisor reviews and
approves all screening decisions at the 24-hour hotline involving
children in the PMC class. The monitors will conduct routine audits
of screened-out reports involving children in the PMC class to confirm
that DFPS conducted a complete review of the available record
(including past intake reports involving the child and the placement)
and due consideration was given to the risks to children when
determining whether to assign a matter for investigation.
6. Effective immediately, DFPS shall ensure foster caregivers and other
placement providers immediately report all allegations of sexual
abuse by a child against another child to the 24-hour hotline
established by DFPS to screen referrals of abuse and neglect.
7. Effective March 2018, DFPS shall document, track and report
quarterly to the monitor(s) all referrals of child-on-child sexual abuse
involving children in DFPS custody made to the 24-hour hotline
established by DFPS to screen referrals of abuse and neglect.
8. Effective immediately and ongoing thereafter, DFPS shall report
quarterly to the monitor(s) and confirm that all reports of child on
child sexual abuse involving children in DFPS custody that have been
referred to the 24-hour hotline have been assigned for investigation
for, at minimum, neglectful supervision by the placement
caregiver(s).
9. Effective May 2018, the State of Texas shall ensure the staff who
investigate allegations of abuse and neglect of children in the PMC
class have caseloads of no more than 14 investigations, consistent
with the median caseload of investigations found in the Workload
Study. Although this is twice the number of investigations the
Workload Study concluded was reasonable for child abuse and neglect
investigators in light of the amount of time they expend on their cases,
14 investigations shall serve as the top of their workload range.
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10. Effective immediately, DFPS shall ensure that investigations of
abuse and neglect of PMC children while they are in licensed
placements are conducted by staff whose caseload is exclusively
focused on child maltreatment investigations.
11. Effective May 2018, the State of Texas shall ensure that the staff who
conduct licensing standards investigations for alleged violations
involving children in the PMC class have caseloads of no more than
14 standards investigations, consistent with the maximum caseload
of standards investigations found in the Workload Study. Although
this is nearly three times the number of standards investigations the
Workload Study concluded was reasonable for inspectors in light of
the amount of time they expend on their cases, 14 standards
investigations shall serve as the top of their workload range.
Caseloads for staff shall be pro-rated for those who are less than full-
time. Caseloads for staff who spend part-time in investigative work
and part-time in other functions must be pro-rated accordingly.
12. Effective March 2018 and ongoing thereafter, the State of Texas shall
publicly post on its website all licensing inspections by RCCL, and/or
its successor entity, redacting child identifying information and other
information deemed confidential under state and federal law and
regulation. The posted information shall include the full narrative
inspection report, the outcome of the inspection, inspection violations
and whether RCCL, and/or its successor entity, implemented
corrective or adverse action as a result of the violations. The posted
information shall also include all corrective action plans required by
RCCL and/or other successive entities and the dates RCCL and/or
other successive entities accepted corrective action plans submitted
by violating agencies and the status of those corrective action plans.
The injunction provisions aimed specifically at remedying the alleged
placement array and foster group home deficiencies must be struck, as the
court has determined that neither practice violates plaintiffs’ substantive due
process rights. The following provisions are invalid:
Placement Array
1. DFPS shall immediately implement a policy that establishes single-
child homes as the presumptive placement for all sexualized children,
either as the aggressor or the victim. The policy also will allow for
exceptions, including: placement in a therapeutic setting for
treatment; placement with siblings when the safety of all children
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involved can be closely monitored and secured; a thorough and
documented assessment certifies that it is in the child’s best interest
to be placed in a home with other children and the safety of all
children involved can be closely monitored and secured. Any
exceptions applied under this policy must be approved and
documented by a senior DFPS manager.
2. DFPS shall ensure it has at least as many foster home placements
for children, by catchment area, by the end of FY 18 as the agency
found it requires to meet the needs of children in its January 2017
Foster Care Needs Assessment, Table 5. DFPS shall report quarterly
to the monitor(s) on the available supply of foster homes for children
by catchment area as of the last date of the quarter.
3. By June 2018, DFPS shall complete and submit to the Court an
update of its January 2017 Foster Care Needs Assessment, and
include:
a. A review and assessment of the placement needs of sibling
groups that are separated into different placements and
children who have been identified as sexually aggressive or
whose IMPACT records document their having been sexually
abused.
b. Data on the number of foster homes in each county that could
be readily designated as single-child homes.
c. Data on the number of homes in each county available for the
placement of sibling groups of various sizes.
d. An analysis of the number of homes in each county and region
that have a deficit or surplus of single-child homes to meet the
needs of children from the same counties and regions who are
sexually aggressive or have been sexually abused.
e. An analysis of the number of homes in each county and region
that have a deficit or surplus of homes that can meet the
placement needs of sibling groups from the same counties and
regions or catchment areas.
4. Effective immediately, DFPS shall immediately establish a tracking
mechanism to identify how many children are in all placements where
a PMC child resides, including foster, biological, non-foster and
adoptive children, as well as each placement’s licensed capacity. By
May 2018, DFPS shall publish this information on its website and
update the information quarterly.
5. Effective June 2018, DFPS shall establish and implement a policy
that requires a transition plan of no less than two weeks to change a
PMC child’s placement if the disruption is due to a change in the
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child’s level of care. The policy shall require a documented assessment
to determine if the child should remain in the same placement for an
extended period if the assessment determines the child’s behavioral
or emotional challenges are likely to re-escalate if the placement is
changed.
6. Beginning in June 2018, DFPS shall report to the monitor(s) semi-
annually on PMC children's placement moves, and ensure that all
such moves, and the reasons for the placement moves, are
documented in the child’s electronic case record.
Foster Group Homes
1. Effective immediately and ongoing thereafter, no PMC child may
reside in a Foster Group Home placement.
2. Effective immediately and ongoing thereafter, no PMC child may
reside in any family-like placement that houses more than six
children, inclusive of biological, adoptive, non-foster and foster
children. Family-like placements include non-relative foster care,
tribal foster care, and therapeutic foster care.
The remaining injunction provisions are “crossover” provisions, which
address multiple violations or which target other alleged DFPS deficiencies.
Again, only those crossover provisions that are narrowly tailored to remedy the
caseload management and the monitoring and oversight violations are proper.
Specifically, the provisions mandating DFPS update and integrate its record-
keeping system are relevant to both violations. An improved record-keeping
practice will reduce caseworkers’ overall workloads. It would also centralize
and make accessible data that is critical to making safe placement decisions.
Lastly, access to comprehensive medical information, mental health records,
and placement history for individual children would assist RCCL in making an
informed assessment about abuse allegations. The following provisions are
valid:
1. Within four months of the Court’s Final Order, DFPS shall submit to
the Court a plan for an integrated computer system, with specific
timeframes, that contains each PMC child’s complete records,
including but not limited to a complete migration of all medical,
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dental, educational, placement recommendations, court records,
mental health and caseworker records. The mental health, dental and
medical information shall include all visits to the provider with
detailed examinations, diagnoses, test results, immunizations,
medications (including the reasons for each), history of abuse,
treatment plans, and any other information necessary for the safety
of the children. DFPS shall have this system fully functional within
one year of the Final Order date.
2. Within four months of the Court’s Final Order, DFPS shall submit to
the Court a plan for an integrated computer system, with specific
timeframes, that contains each PMC child’s complete records,
including but not limited to a complete migration of all medical,
dental, educational, placement recommendations, court records,
mental health and caseworker records. The mental health, dental and
medical information shall include all visits to the provider with
detailed examinations, diagnoses, test results, immunizations,
medications (including the reasons for each), history of abuse,
treatment plans, and any other information necessary for the safety
of the children. DFPS shall have this system fully functional within
one year of the Final Order date.
The crossover provisions related to placement array and foster group
homes must be struck. Additionally, provisions designed to remedy what the
district court believed to be additional, related problems with the foster care
system are improper. These provisions are not calculated to remedy an
identified constitutional violation. They may reflect “best practices” or the
personal policy preferences of the district court, but they are not necessary to
achieve constitutional compliance. Moreover, many of these provisions only
increase caseworkers’ administrative burdens. The following provisions are
invalid:
1. Effective immediately, the electronic case record of each child in the
PMC class must include the child’s photograph that is not more than
one year old, except as provided in paragraph three, below.
2. Effective immediately, when a child enters the PMC class, DFPS shall
ensure that a photograph is taken of the child within 48 hours and
uploaded into the child’s electronic case record promptly. DFPS shall
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ensure the date of the photograph is recorded in the child’s case
record.
3. Effective immediately, with respect to all PMC children under the age
of three years, DFPS shall ensure that photographs are taken and
uploaded to the child’s IMPACT case record at least semi-annually
and the date of the photograph must be recorded in the child’s case
record.
4. Effective immediately, DFPS shall ensure adequate training to all
caseworkers on how to use the appropriate technology to photograph
a child and upload the photograph to the child’s electronic case record.
5. Effective immediately, DFPS shall ensure and document that all
youth in the PMC class, aged 16 or older, receive copies of their birth
certificate and social security card upon turning 16.
6. Effective immediately, DFPS shall ensure and document that all
youth in the PMC class, prior to aging out of care, receive copies of
their birth certificate, social security card, most current high school
transcript, copies of their last physical health and dental
examinations, copies of their immunization record, and copies of
identifying information needed for Medicaid. DFPS must document
an acknowledgment of receipt, along with a short description of the
youth’s plan for safekeeping the documents, signed by the youth and
their caseworker in the electronic case record prior to the youth aging
out of care. Prior to the youth aging out of care, DFPS shall take all
reasonable steps, including the filing of an application, to assist the
youth in signing up for either Former Foster Care Children’s
Medicaid or Medicaid for Transitioning Foster Care Youth, and shall
document those steps in the child’s electronic record. Each of these
programs requires an affirmative act to change from the under-18
Medicaid to the over-18 previous foster care Medicaid.
7. Effective within three months of the Court’s Final Order and ongoing
thereafter, DFPS shall identify all PMC youth aged 14 and older who
have not yet received the following DFPS independent living
preparation services: the life skills assessment, a Circles of Support
(COS) or Transition Plan Meeting (TPM), and a recently updated
(within six months for youth 16 and older and one year for youth 14
and older) transition plan. DFPS shall ensure that all PMC youth who
have been identified immediately above receive these services and
that the PMC youth’s transition plan is developed.
8. Effective June 2018, DFPS shall ensure all 14- and 15-year-old youth
in the PMC class receive DFPS’ Preparation for Adult Living (PAL)
services.
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9. Effective June 2018, DFPS shall ensure that if a PMC youth’s
disability is a barrier to participation in PAL services or supports,
appropriate accommodations shall be identified that allow the youth
to meaningfully participate, and DFPS shall document any
accommodations in the child’s electronic case record.
10. Effective June 2018, DFPS shall ensure PMC youth receive a life-
skills assessment within 45 days of turning 14, and are reassessed
annually, and that the results of these assessments are documented
and available in the child’s electronic case record.
11. Effective June 2018, DFPS shall ensure that PMC youth receive
DFPS’s Circles of Support (COS) or Transition Planning Meeting
(TPM) within 45 days of turning 14 years old, and then receive either
COS or TPM in conjunction with the child’s permanency planning
meeting every four months, until the youth ages out or attains
permanency. The purpose of such meetings is to develop a youth’s
transition plan with an eye toward building skills to support a youth’s
specific strengths and address needs in preparation for independence.
12. Effective March 2018, DFPS shall ensure that primary caseworkers
assigned to PMC children develop a plan, in consultation with the
child’s attorney ad litem, to facilitate the sealing or expungement of
any eligible criminal or juvenile records for offenses for which the
youth was adjudicated or convicted prior to the youth aging out of
care. DFPS shall ensure the efforts to do so are documented in the
child’s electronic case record.
13. Effective March 2018, DFPS shall ensure that the caseworker puts a
plan in place prior to a PMC youth turning 18 years of age,
documented in the case record, detailing how the youth will access
benefits the youth is eligible to receive once they leave DFPS care,
including the DFPS transitional living allowance, Social Security
Disability Insurance benefits, the DFPS aftercare room and board
assistance, and DFPS’s Education and Training Vouchers.
14. Effective June 2018, DFPS shall ensure driver’s education classes are
provided to all PMC youth who are old enough to receive a learner’s
permit and choose to take driver’s education. DFPS may create
exceptions for PMC youths who are not developmentally or medically
able to safely participate in driver’s education.
15. Effective immediately, DFPS shall ensure that prior to exiting care,
each PMC youth age 14 and older is assisted in creating e-mail
accounts so that they may receive encrypted copies of personal
documents and records, in addition to receiving copies of originals.
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16. Effective immediately, DFPS shall request the appointment of an
Attorney ad litem for all PMC children from each court in which a suit
is pending in which a PMC child does not have Attorney ad litem
representation, citing the Court’s Final Order.
17. Within 30 days of the Court’s Final Order, DFPS shall present a plan
to the Court to ensure reimbursement to Attorneys ad litem in those
courts that do not currently provide Attorneys ad litem for PMC
children. If DFPS fails to present a plan, DFPS shall reimburse those
fees necessary to provide Attorneys ad litem in those courts that do
not currently provide Attorneys ad litem for PMC children.
18. DFPS shall institute and incorporate caseworker training (minimally
into the Conservatorship Specialty Track) about child health that
describes:
a. The health vulnerabilities of foster youth (pages 1 and 2 of the
American Academy of Pediatrics “Fostering Health: Healthcare
for Children and Adolescent in Foster Care”);
b. Specifically, how to use child and family visits to obtain and
update healthcare information;
c. The utility of children’s electronic case record, for improving the
health of foster youth.
19. Effective immediately, DFPS shall make every effort to obtain and
make available a child’s medical records within 24 hours of the child
entering the custody of DFPS. Caseworkers shall document their
efforts to obtain and make available children’s medical records within
48 hours of children entering DFPS custody.
20. Effective June 2018, DFPS will ensure that every PMC child has a
medical home. The medical home is a health care delivery model led
by a health care provider to provide comprehensive and continuous
medical care and care management to patients with a goal to obtain
positive health outcomes. The medical home shall be obliged (by policy
and contract):
a. To maintain and update all medical fields of the child’s central
electronic record;
b. To coordinate care for routine and emergency healthcare needs;
c. To ensure timely evaluations and assessments for all health
needs, including behavioral health (including psychotropic
oversight), dental care, and chronic health conditions.
21. Effective June 2018, DFPS shall ensure children in the PMC class
receive a specific developmental assessment of at least one of the
following screenings within 90 days of each child’s birthday:
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a. Birth to 10 years: Ages and Stages Questionnaire, Ages and
Stages Questionnaire: Second Edition, or the PEDS
developmental screening and assessment;
b. 11 years to 21 years: the Pediatric Symptom Checklist (PSC)-
35, the Youth Pediatric Symptom Checklist (Y-PSC), the
Patient Health Questionnaire-9 (PHQ-9), or the CRAFFT
screening test)
c. If DFPS does not believe any of these tests to be reliable, it may
propose its own developmental assessments to the Court within
30 days of the date of this Order. Screening results from the
developmental assessment, including follow-up/red flag items,
shall be inputted into the child’s electronic case record within
72 hours;
22. Effective June 2018, DFPS shall ensure the child’s central electronic
case record has functional internal (red flag) alerts notifying
caseworkers of:
a. Follow up needed;
b. Assessments/screening required or indicated;
c. Evaluations required or indicated;
d. Immunizations required or indicated; and
e. Appointments missed or cancelled.
23. Effective May 2018, DFPS shall institute a policy that uses the
caseworker visits to verify and report on health status by answering
and documenting in the PMC child’s electronic case record these
questions:
a. Are there outstanding red flag items for this child?
i. Greater than 20 days?
ii. Greater than 90 days?
b. Has this child visited a healthcare practitioner in the last 90
days?
c. Can this child (over 11) name his/her health care needs?
24. Effective March 2018, DFPS shall implement a policy that requires
that no unrelated children more than three years apart in age be
placed in the same room. The policy may also establish exceptions,
including a thorough and documented assessment that certifies it is
in the child’s best interest or that no risk of harm would result from
placing any unrelated children more than three years apart in the
same room. Any exceptions applied under this policy must be
approved and documented in the child’s electronic record by the DFPS
county director.
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25. Effective March 2018, DFPS shall implement a policy that requires
that no unrelated children with different service levels be placed in
the same room. The policy may also establish exceptions, including a
thorough and documented assessment by DFPS that certifies it is in
the child’s best interest or that no risk of harm would result from
placing any unrelated children of different service levels in the same
room. Any exceptions applied under this policy must be approved and
documented in the child’s electronic case record by the county
director.
26. Effective immediately, DFPS may not place a child in the PMC class
in an office overnight, and must track all instances if it does so, and
report the same to the monitor(s) monthly. If, under any
circumstance, a child in the PMC class spends the night in an office,
DFPS staff must document that fact, and the reason, in an
electronically available log maintained by DFPS in each county.
These logs shall be submitted on the first day of every month to a
designated senior manager in DFPS’ central office and to the
monitor(s). The designated DFPS senior manager shall review these
logs monthly and take immediate follow up action to identify and
address problems encountered at the county level with respect to
securing minimally adequate, safe placements for children in the
PMC class.
27. Within six months of the Court’s Final Order, all PMC children under
two years of age shall be placed in a family-like setting, including non-
relative foster care, tribal foster care, kinship foster care and
therapeutic foster care. DFPS may make exceptions to family-based
placements for sibling groups of four or more children who cannot
otherwise be placed together, children whose individual needs require
hospitalization, treatment and/or medical care or young children who
are placed with their minor parent in the PMC class and who may
require services provided in a non-family-like placement. All
exceptions must be approved by a supervisor and documented in the
child’s electronic case record.
28. Within 12 months of the Court’s Final Order, all PMC children under
six years of age shall be placed in a family-like setting, including non-
relative foster care, tribal foster care, kinship foster care and
therapeutic foster care. DFPS may make exceptions to family-based
placements for sibling groups of four or more children who cannot
otherwise be placed together, children whose individual needs require
hospitalization, treatment and/or medical care or young children who
are placed with their minor parent in the PMC class and who may
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require services provided in a non-family-like placement. All
exceptions must be approved by a supervisor and documented in the
child’s electronic case record.
29. Within 24 months of the Court’s Final Order, all PMC children under
the age of 13 shall be placed in a family-like setting, including non-
relative foster care, tribal foster care, kinship foster care and
therapeutic foster care. DFPS may make exceptions to family-based
placements for sibling groups of four or more children who cannot
otherwise be placed together, children whose individual needs require
inpatient psychiatric hospitalization, treatment and/or medical care
or young children who are placed with their minor parent in the PMC
class and who may require services provided in a non-family-like
placement. All exceptions must be approved by a supervisor and
documented in the child’s electronic case record.
VII. Conclusion
For the foregoing reasons, we AFFIRM in part and REVERSE in part
the district court’s findings on substantive due process liability, and VACATE
and REMAND the permanent injunction for modification consistent with this
opinion. This is a limited remand. Accordingly, should either party seek
appellate review following modification of the injunction by the district court,
the appeal will be assigned to this panel. See United States v. Cessa, 861 F.3d
121, 143 (5th Cir. 2017) (citing Wheeler v. City of Columbus, 686 F.2d 1144,
1154 (5th Cir. 1982)).
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PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring as to Parts I, II,
III, IV.1–2, and otherwise dissenting:
The care of our children has long been a concern of society and state,
with vivid images of Charles Loring Brace’s “orphan trains” shipping children
from the streets of New York to the Midwest in the 1850s, to the development
of the modern institutions of child welfare. Today, we add another page to that
ongoing narrative.
In 2011, PMC children challenged the constitutionality of their
conditions, and, after seven years of litigation, received ongoing relief in the
form of an injunction, ordering changes to remediate the denial of the
children’s constitutional rights. The majority disassembles that remedy,
scrapping elements it deems superfluous, along the way reversing the district
court’s liability determinations regarding Licensed Foster Care placement
arrays and Foster Group Home policies. I concur in the majority’s affirmance
of liability as to the general class’s claim and the Licensed Foster Care
subclass’s oversight claim, but cannot join its reversals of the liability rulings
regarding the placement-array and the Foster Group Home claims. Nor can I
join its disaggregation of the district court’s injunction and vacatur of
substantial portions of that remedy.
Underlying the doctrinal missteps in the majority’s evaluation of liability
and remedy is a refusal to abide by the standard of review of the district court,
replacing it with an indulgent deference to DFPS. This approach belies the
recognition—emphasized by the district court—that DFPS has, for two
decades, hobbled the capacity of its caseworkers to care for PMC children and
countenanced the abuse, physical endangerment, and permanent
psychological debilitation of thousands of children under its care. It is
significant that the panel is unanimous in affirming the finding of the district
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court that DFPS was deliberately indifferent to the liberty interests of PMC
children. We disagree over the remedial response to these ills.
I begin against the backdrop of an account of one child, which the district
court found to be typical of the thousands of PMC children—a factual account
that compelled the affirmance of the district court’s finding of liability. At
fourteen, Texas foster child S.A. “denied that any happy things [had] ever
happened to her.” At five, S.A. became a ward of the State when her mother
was arrested. Four months into foster care, S.A. reported being sexually
abused by an older child in her foster home. DFPS sent no agency staff to
interview S.A., and there is no record that anyone from the agency followed up
with the private company to which it had outsourced the investigation. When
she entered permanent conservatorship roughly half a year later, S.A.’s
behavior had changed: she was aggressive and self-abusive, and later suicidal.
DFPS eventually moved S.A. from her first foster home. Over the coming years
she was moved between thirty-three placements, attended sixteen different
schools, and was assigned to a “revolving door” of twenty-eight different
caseworkers. S.A. was diagnosed with a growing list of mental-health
problems, and received therapy for further instances of potential sexual abuse.
Her caseworkers failed to update her records, and, as a direct consequence of
these failures, S.A. missed at least two possible adoption opportunities—
opportunities of which S.A. was aware. At the time, she told a psychologist that
she “felt so sad that she no longer wanted to live.” On turning eighteen, S.A.
“aged out” of foster care. By then, her intellectual functioning had severely
deteriorated and she had regressed emotionally, unable to trust others or build
relationships. Indeed, S.A. appears to have lost basic elements of her identity
and individuality: she could no longer recount a chronology of her life or
remember where she had lived. The five-year-old girl DFPS had taken under
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its protection left the State’s care thirteen years later psychologically scarred,
deprived of capacities for citizenship and productive adult life.
S.A.’s experience is typical for PMC children. 1 She is but one of
thousands of children DFPS has “shuttled throughout a system where rape,
abuse, psychotropic medication and instability are the norm.” 2
I.
Within DFPS, frontline work with PMC children is primarily delegated
to caseworkers. “[C]aseworkers are foster children’s lifeline, their connection
to everything.” 3 Once a child enters permanent conservatorship, courts often
dismiss the child’s attorney ad litem and court-appointed advocates, leaving
the DFPS caseworker as the child’s sole advocate. 4 Caseworkers’ duties include
monitoring a foster child’s welfare within the foster-care system, intervening
to protect the child’s interests, and working towards the achievement of
permanency. PMC children are dependent upon their caseworkers. As amicus
National Association of Social Workers puts it, “[t]he effective caseworker
serves as a ‘smoke alarm’ for the child in care . . . sounding a warning when
________________________
1 M.D. v. Abbott, 152 F. Supp. 3d 684, 737 (S.D. Tex. 2015) (“S.A.’s experience is ‘typical
. . . of the entire foster care system in the State of Texas,’ especially in the PMC.”); see also
Brief of Disability Rights Texas as Amicus Curiae at 2 (“[B]ased on our experiences
representing over 800 PMC children in 46 counties, Plaintiffs’ tragic experiences are far too
typical.”).
2 M.D., 152 F. Supp. 3d at 828.
3 Id. at 776 (internal quotation marks omitted). As Amicus National Association of
Social Workers puts it, “[t]he State’s ability to provide the best of care for these children
pivots on the effectiveness of its caseworkers who fulfill a critical role in these children’s lives
and ultimate outcomes.” Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as
Amicus Curiae at 5.
4 M.D., 152 F. Supp. 3d at 782 (“[W]hen a child enters PMC, courts often dismiss the
child’s attorney ad litem and CASA, leaving the child with fewer stable relationships and
advocates. This makes the child’s relationship with his or her caseworker that much more
important.”).
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anything is amiss.” 5 To be effective, “each caseworker must have the time and
resources to devote to each child who forms a part of the caseworker’s
caseload.” 6 According to the Child Welfare League of America (CWLA), the
nation’s oldest and largest membership-based child welfare organization, 7 a
caseworker can handle up to 15 cases effectively—any more compromises the
effectiveness of the worker, and the welfare of the children under the worker’s
care. 8 The Council on Accreditation, another national child-welfare
professional organization, similarly recommends that caseloads not exceed 15
children per worker, not as an ideal, but as a minimum necessary protection—
protection that our Constitution guarantees.
The record demonstrates that DFPS has undermined caseworkers’
abilities to fulfill their duties. DFPS caseworkers handle, on average, 28
children’s cases at a time, with caseworkers at the upper end of the distribution
handling 40, sometimes 60. More than 55% of DFPS caseworkers lack the time
to do their jobs. With primary caseworkers unable to attend to PMC children,
DFPS created the role of “I See You” workers, secondary “caseworkers” whose
task is to confirm that children are still present at placements. 9 The district
court found that the cursory interactions “I See You” workers have with foster
children cannot substitute for the sustained and focused care of a primary
caseworker. “[C]hildren intuitively know that this person is just fulfilling a
________________________
5 Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as Amicus Curiae at 12.
6 Id. at 14.
7 M.D., 152 F. Supp. 3d at 701.
8 Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as Amicus Curiae at 14–
15.
9 Following trial, DFPS renamed the position “Local Permanency Specialist.”
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service or a requirement by looking in on them.” 10 Indeed, the district court
surmised that DFPS’s use of “I See You” workers served primarily to boost
rates of face-to-face meetings with children, a precondition to the agency
receiving millions of dollars in federal funds. 11
The record demonstrates that casework at DFPS takes place under
conditions of administrative chaos. The agency keeps voluminous records for
PMC children—so lengthy that, given their caseloads, caseworkers cannot
realistically familiarize themselves with them. In preparation for trial, the
district court read the case files of twenty PMC children, that is, 70% of a single
DFPS caseworker’s average caseload: it took the court 462 hours to read these
files, 358,102 pages in total. Notwithstanding their length, children’s records
are in many cases incomplete. They are also “incredibly disorganized,” 12
divided among several uncoordinated digital databases, and numerous paper
files, the latter spread across placement homes, placement-agency offices,
DFPS caseworker offices, and medical-service provider offices. Often files are
inaccurate, for example, including documentation of caseworker visits that
never occurred. Buried in this administrative morass, caseworkers spend only
26% of their time directly working with children and families. The balance is
devoted to administrative and clerical tasks.
DFPS is also characterized by a dysfunctional institutional culture.
Internally, the agency is anything but open to improvement. Caseworkers
described management practices as “unfair, unsupportive, bullying,
unreasonable, and fear-driven.” They do not “feel safe to raise concerns or make
________________________
10 M.D., 152 F. Supp. 3d at 783 (internal quotation marks omitted).
11 If fewer than 95% of foster children are visited by a caseworker, DFPS would not
qualify for tens of millions of dollars in federal aid.
12 M.D., 152 F. Supp. 3d at 781.
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complaints, fearing retaliation or punishment.” 13 The agency lacks a formal
system for anonymous complaints. To avoid accountability, caseworkers
unnecessarily pass decisions up to supervisors, exacerbating operational
paralysis. Where they cannot avoid accountability, caseworkers focus their
energy on tasks on which they are more easily judged by superiors, shifting
their efforts away from PMC children. 14 Unsurprisingly, DFPS experiences
extraordinary turnover among caseworkers. Around 16% of caseworkers leave
in their first six months, 25% in their first year, and 43% in their first two
years. These figures are likely understatements, only accounting for those
caseworkers who leave their jobs but stay within the agency. Turnover drains
the agency of institutional memory and strains the agency’s budget. 15 More
importantly, as DFPS concedes, turnover “threatens the well-being and safety
of clients,” that is, children. A PMC child has on average 6.39 caseworkers in
any three-year period. Many PMC children are unable to identify their
caseworker.
For PMC children, DFPS’s dysfunction has led to an “epidemic of
physical and sexual abuse.” Sexual abuse is not merely “too prevalent,” it is
“the norm.” An experienced attorney ad litem testified that almost all of the
over 150 PMC children she had represented were sexually abused under DFPS
care. A former PMC child testified from his experience that “abuse [is]
happening all of the time.” DFPS caseworkers often do not intervene to prevent
abuse, nor to mitigate consequences once abuse has occurred. The agency is
unable to isolate potential victims from sexual abusers, particularly in
________________________
13 Id. at 796-97.
14 Id. at 782 (“[O]verextended caseworkers prioritize TMC children who have more
deadlines and concretely tracked benchmarks.”).
15 Caseworker turnover costs Texas $72 million per year.
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connection with child-on-child abuse, in large part because it does not track
sexually abusive children. The agency frequently places PMC children within
the same home as potential abusers even where it is clear—and conceded by
DFPS officials—that abuse is likely to result. In Foster Group Homes, up to 12
foster children of all ages, genders, and service levels can be indiscriminately
mixed, without a requirement of 24-hour supervision. In 64% of these homes,
teenaged foster children shared homes, even bedrooms, with far younger
children. In such circumstances, abuse is to be expected. 16 Each incident of
sexual abuse begins a cascade of harm and suffering, because abuse can
“sexualize” victims, increasing the probability that they will become abusers. 17
DFPS’s inability to prevent abuse is exacerbated by its incompetence in
responding to incidents once they have occurred. Where DFPS had notice of
potential abuse, “children [we]re not timely (or ever) examined by doctors to
determine if they had been assaulted. . . . Injuries went untreated. Necessary
medical follow-up did not occur.” There is evidence that DFPS’s response is to
dampen the mental and emotional symptoms of trauma. The district court
found pervasive administration of psychotropic drugs to PMC children, a
marker of a “warehousing” approach to children. 18 In these circumstances,
________________________
M.D., 152 F. Supp. 3d at 819 (“Carpenter testified that, in foster group homes that
16
mix younger children with older children, sexual abuse ‘is usual rather than unusual.’ . . .
Beyond the examples cited, the record is full of physical abuse, sexual abuse, suicide
attempts, and poor supervision at foster group homes.”).
17 Id. at 732 (“Expert and fact witnesses for both parties testified that once children
are sexually abused, or ‘sexualized,’ that behavior is ongoing and destructive to themselves
as well as to the other children with whom they come in contact.”).
18The district court voiced “continuing concern over foster care children who enter
care at a Basic needs level and age out from a residential treatment center on multiple
psychotropic drugs, indicative of warehousing children.” Concerns about excessive
administration of psychotropic drugs to foster children go back at least to the Texas
Comptroller’s 2004 report.
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PMC children learn not to seek meaningful help from DFPS, because they
doubt that anyone will respond to their calls.
Where children have reported abuse or neglect to the agency,
investigations are inadequate. The typical error rate for child-welfare agency
investigations is 2% to 3%. DFPS’s error rate is 75%. 19 That is, three out of
every four cases of abuse are erroneously resolved—numbers that push beyond
deliberate indifference. DFPS investigators are not encouraged to complete
investigations quickly, leaving children in potentially dangerous situations.
Staff fail to interview parties, review evidence, or address continuing risks to
children. And failed investigations endanger PMC children by leaving them in
placements where abuse is ongoing; perpetrators are left to continue abuse
within the system with “nothing in their record indicating a risk.” As former
foster child Kristopher Sharp testified regarding his experience after being
sexually abused at a residential treatment center in Denton, Texas, “even if I
did get the chance to tell somebody . . . . [n]obody certainly would do anything.
I’d have to stay here . . . . We didn’t feel safe in placements and then nothing
happened and so—I mean, why—why would you go through to the process of
even thinking that something would happen if you were to report something
like this?” DFPS effectively teaches children that victimization is a tolerable
aspect of foster care, not to be redressed, let alone prevented.
Harms inflicted on PMC children “have widespread ripple effects
throughout society.” 20 Every year, on turning eighteen, around 1,300 to 1,400
________________________
19 M.D., 152 F. Supp. 3d at 799.
20 See Brief of Disability Rights Texas as Amicus Curiae at 4 (“The harms suffered—
while DFPS was entrusted with the children’s protection as the legal ‘parent’—cascade,
multiply, and manifest long into adulthood. . . . [T]hese harms have a ripple effect throughout
the child’s life, and how that exacts a steep toll both on the individual and on society.”).
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PMC children age out of foster care. These individuals leave without basic
skills to survive, often poorly educated. Though 70% of foster children aspire
to attend college, PMC children rarely age out with a high-school diploma, 21
and only 3% will receive a college degree. 22 “Statistically, they are at extreme
risk of poverty and homelessness, victimization and criminal involvement,
illness, early childbearing, and low educational attainment.” Around 27% end
up in the criminal-justice system. 23 About one third will be homeless. 24 Once
homeless, one out of three will become involved in prostitution. 25 Amicus curiae
Disability Rights Texas reports that “the Texas child welfare system is
effectively supplying the sex-trafficking industry with current and former
foster youth.” 26 Among female former-PMC children, 49% become pregnant
within a year of aging out; 70% of their children enter the same foster-care
system.
This debacle cannot be understood without the parallel chronicle of
bureaucratic intransigence, at least two decades old. As early as 1996, the
Committee to Promote Adoption, a body assembled by then Governor George
W. Bush, concluded that Texas’s caseworkers bore excessive caseloads. In
2004, the Texas Comptroller issued a report describing the same problem, as
well as the associated risk of child-on-child sexual abuse. In a 2007 follow-up
________________________
21 Id. at 14.
22 Id.
23 Id. at 8; M.D. v. Abbott, 2017 WL 74371, at *8 (S.D. Tex. Jan. 9, 2017) (citing Hearing
Before the Tex. Senate Committee on Finance, 84th Leg. Session Interim, Oct. 26, 2016, at
4:37:50).
24 Brief of Disability Rights Texas as Amicus Curiae at 8.
25 Id.
26 Id. at 7.
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study, the non-profit Texas Appleseed Project observed that the caseload
problem had become worse, and that, as a result, “children in the system are
harmed.” In 2009, Governor Rick Perry tasked the Adoption Review
Committee with taking a “hard look” at the Texas foster-care system.
Reporting back a year later, the Committee observed that “sadly . . . many of
the same problems identified in 1996 still exist in the current child welfare
system.” The Committee noted “increasing evidence that our foster care system
is sometimes doing more harm to our children than good.” These efforts
continued even after the district court’s liability determination. In 2016, as the
Special Masters worked to develop a remedial plan, Governor Greg Abbott
remonstrated against the “unacceptable” status quo, and insisted on an
“overhaul” of the “broken system.” Together with Lieutenant Governor Dan
Patrick, he warned DFPS that “we will not tolerate inferior residential foster
care operations.”
These efforts yielded few results. During the 2009 to 2013 period
caseloads were not reduced—they increased. 27 In place of reform, DFPS
doctored statistics to downplay the problem. When asked to report on average
caseloads—total cases divided by caseworkers—DFPS included in the
denominator not only primary caseworkers, “I See You” workers, and workers
on leave, but also “CPU workers who never interact with children” and even
imaginary caseworkers “created out of all the overtime that these other
caseworkers with such big caseloads were having to put in”—resulting in a
lowballed quotient. The agency’s resistance did not change with the liability
determination. In its December 2015 decision, the district court held that
DFPS’s treatment of PMC children subjected them to an unreasonable risk of
________________________
27 M.D., 152 F. Supp. 3d at 791–92.
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harm with deliberate indifference, violating their Fourteenth Amendment
rights. The agency became defiant. The district court ordered DFPS to “ensure
that all children who need single-child homes are place[d] in such homes,”
which would require the agency to track such homes. DFPS responded that it
“ha[d] no plans to track single child homes.” DFPS also “stonewall[ed]” when
the court-appointed Special Masters sought recommendations for a remedial
plan. The Special Masters sought a timeline for implementing relief—the
agency did not respond. When the Special Masters requested input on
improving recordkeeping, the agency responded that it “[wa]s not making such
changes to the . . . system.” Similarly, when the Special Master requested draft
plans for PMC-children’s landline phone access, DFPS insisted it “neither has
nor will be developing such a policy.”
It was in this context that the district court had no choice but to proceed
to a Final Order, responding to DFPS’s resistance with a studied injunction.
For twenty years, DFPS had successfully resisted the efforts of a series of State
administrations, including three of Texas’s longest serving governors,
beginning with the tandem of Governor Bush and Bob Bullock, widely
considered to be the strongest of Texas’s lieutenant governors. The agency
ignored the dissatisfaction of its frontline caseworkers and accepted the
dysfunctional chaos that characterized its day-to-day operations. That is,
DFPS was deliberately indifferent to the ongoing abuse of thousands of
children under its care. Only in January of this year, following years of
litigation, did Judge Jack order the State to discharge its constitutional duty
to protect the thousands of Texas children taken into its custody.
II.
In place of the discipline imposed by the district court’s order, the
majority inexplicably affords what it terms a “prudent” and “creative[]”
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bureaucracy the flexibility to set its own course and to proceed at its own
pace—ignoring that this is what DFPS has been doing for twenty years—and,
Janus-faced, turns away from our unanimous finding of deliberate indifference
to the children’s constitutional rights. The majority’s reversals on the
placement-array and Foster Group Home liability determinations, and its
vacatur of key provisions in the district court’s injunction, not least the
imposition of caseload requirements, flout applicable standards of review and
sow confusion in our doctrine. It raises the flag of federalism, but flies it upside
down. But facts matter. I would affirm the district court’s holdings in full.
A.
The majority errs in reversing the district court’s liability finding with
respect to DFPS’s placement array for the Licensed Foster Care subclass. The
majority is correct that, as the district court put it, “[p]laintiffs do not have a
constitutional right to be placed in the least restrictive, most family-like
placement, or placed with their siblings, or placed close to their home
community.” 28 PMC children, however, have a right to be free from an
unreasonable risk of harm. Where DFPS’s placement array generates such a
risk, it violates the Fourteenth Amendment. The majority’s reversal is no more
than a crude inversion of remedy and wrong.
The district court identified a number of deficiencies in DFPS’s
placement array, which, taken together, subjected children to an unreasonable
risk of harm. First, the court found that, due to the geographic imbalance of
foster homes, 60% of children were placed outside of their home county. The
result was a lack of stability and attachments that harmed children
psychologically. Second, the district court found that DFPS’s inadequate
________________________
28 Id. at 808.
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placement array resulted in the separation of 35% of siblings, separations
widely understood—including by DFPS—to have deleterious emotional and
psychological effects. Third, the district court found that DFPS relied upon
“congregate care facilities,” institutions housing 12 or more children,
notwithstanding their “poor developmental outcomes” and lack of safety.
Fourth, the district court found that DFPS’s placements did not isolate
sexually abusive children in single-child homes, effectively enabling child-on-
child sexual abuse. Taking these four effects together, the district court
determined DFPS’s placement array posed an unreasonable risk of harm to
PMC children. It found that DFPS had “known about these problems for
years,” but made no reasonable response. It held DFPS violated the plaintiffs’
rights under the Fourteenth Amendment.
The majority reverses, finding that the district court overreached.
DFPS’s placement array may depart from best practices, the majority finds,
but it “does not unacceptably increase the risk that a child will be exposed to
serious physical or psychological harm.” DFPS has “no responsibility to
maximize foster children’s personal psychological development.” The
placement array may be “suboptimal,” but its deficiencies do not rise to the
level of constitutional harm.
But, again, it is not a question of maximizing PMC children’s welfare: it
is one of turning back DFPS practices that are collectively and indisputably
inflicting injuries on them, injuries found by the district court and described
here. The majority’s declarations rest on a blinkered apprehension of the facts
and a disregard for our standard of review. In the place of the district court’s
comprehensive factual findings, it isolates discrete policies, and treats them
standing alone. For example, it focuses upon DFPS’s relocation of children out
of their home counties, but fails to grapple with practices of locating young
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children in homes where they will live—even share bedrooms—with known
sexual abusers, or separating children from siblings, the only family they may
have, terming these practices “suboptimal.” This is wordplay. By the majority’s
view, Swann was wrongly decided, because children have no constitutional
right to free transportation to public schools. 29 In a footnote, the majority offers
that sexualized children can be treated in therapeutic environments (not only
single-child homes) and that the problem of child-on-child abuse is better
addressed via policies towards caseloads. But this discussion is at best
misplaced: these arguments are deeply flawed, and, in any event, can only be
germane to relief, not liability.
The majority insists that, “[e]ven if the policies . . . were somehow
constitutionally infirm,” DFPS took “concerted effort to remedy the problem”
when it initiated the Foster Care Redesign scheme. The district court found
that in the five years that program had been active, it grew to cover 2% of
Texas, and a total of 800 children—less than ten percent of the subclass. 30 The
district court determined that “[t]he only data available shows that Foster Care
Redesign has made Texas’s placement array worse.” Without identifying any
misstep in this fact determination, the majority claims to know better: DFPS’s
actions are well-considered, allowing “adequate time to assess the program’s
ability to properly safeguard children’s welfare.”
“The predicate findings of a substantial risk of serious harm and officials’
deliberate indifference to the risk are factual findings reviewed for clear
error.” 31 Such findings are clearly erroneous only if the court reached them
________________________
29 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 30 (1971).
30 M.D. v. Perry, 294 F.R.D. 7, 38 (S.D. Tex. 2013) (“On August 11, 2011 there were
8,174 children in the Licensed Foster Care Subclass.”).
31 Ball v. Leblanc, 792 F.3d 584, 592 (5th Cir. 2015).
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without substantial evidence, on the basis of a misinterpretation of the effect
of the evidence, or if they are against the preponderance of credible
testimony. 32 Here, the evidence supports the district court’s liability holding as
to the placement-array claim, and there is no indication that the district court
misinterpreted or made findings contrary to the preponderance of the evidence.
As elsewhere, “[t]he district court had a mountain of evidence at its disposal,”
and so it should “enjoy[] ample discretion to credit certain evidence and expert
testimony.” The majority instead reverses, substituting its conclusory
assertions for the district court’s studied findings. This is not clear error
review. I would affirm.
B.
The majority also errs in reversing the district court’s liability holding
as to DFPS’s Foster Group Home (FGH) policies. The district court found that
the child-supervisor ratio in FGHs (up to eight children per supervisor) taken
together with placement of children in FGHs, lack of training, and lack of 24-
hour supervision, contributed to unreasonable risk of harm. Experts testified
to the difficulty of a supervisor “monitor[ing] that many kids.” High child-
supervisor ratios often resulted in medication errors and missed appointments,
including court hearings. Former foster children described the inability of FGH
caretakers to monitor and attend to children, with the result that “child-on-
child physical and sexual abuse is a common thing in the bigger homes.” 33
“[T]he record is full of physical abuse, sexual abuse, suicide attempts, and poor
supervision at foster group homes.” 34 Drawing upon this evidence, the district
________________________
32 Id.
33 M.D., 152 F. Supp.3d at 819 (internal quotation marks omitted).
34 Id.
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court determined that “DFPS’s policies and procedures for operating [FGHs]
amount to a structural deficiency that causes an unreasonable risk of harm to
the FGH Subclass.” 35 This finding was well substantiated. The majority
reverses on two grounds, both in error.
1.
First, the majority identifies a “causal flaw” in the district court’s
finding, reasoning that, because Texas foster-family homes are constitutionally
sound, and FGHs do not significantly differ, FGH policies also must be
constitutionally sound. The assertion that these two kinds of placement have
no relevant differences comes without explanation or basis in the record. Even
if it were accurate, it would only matter if the Texas foster-family home offered
a standard of constitutional compliance. It does not. The constitutionality of
policies specific to foster-family homes was not before this court, it was not
addressed by the district court, and it was not briefed by the parties. Indeed,
the constitutionality of foster-family home policies is not addressed in the
majority’s opinion beyond its comparison in a five-word relative clause. Both
premises in this sequence are wrong, and so too its conclusion.
2.
Second, the majority reverses on the basis of its assertion that FGHs
have been fixed. The district court identified the lack of 24-hour supervision as
“the most egregious problem” in FGHs, 36 which, taken together with other
FGH policies, created risks of child-on-child sexual abuse. In its Liability
Order, the district court required DFPS to “immediately stop placing PMC
foster children in unsafe placements, which include foster group homes that
________________________
35 Id. at 819–20.
36 Id. at 818.
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lack 24-hour awake-night supervision.” 37 Today, the majority finds “no dispute
that the State appears to be complying” with the district court’s order to
provide 24-hour supervision in FGHs. It reasons, therefore, that “[t]o the
extent that the lack of awake-night supervision may have sustained a
constitutional claim under the circumstances, the remaining policies and their
effects do not cause FGH children an amplified risk of harm sufficient to
overcome the threshold hurdle.” The majority thus reverses the district court’s
liability holding, and decertifies the FGH subclass.
The majority’s analysis is doctrinally and factually flawed. It suggests
that the “appear[ance]” of post-judgment remedial action eliminates liability.
Appearances do not have this effect. Nor does actual remediation. If ongoing
constitutional wrongs were eliminated pending the appeal, the issue would be
whether the FGH subclass’s claim was mooted. This is not what the majority
finds. Rather, it reasons that, in light of post-judgment remediation, we must
reverse the district court’s original finding of liability and decertify the plaintiff
subclass. The majority cites no doctrine supporting this counterintuitive
proposition—indeed, there is none.
Doctrinal confusion aside, the majority misapprehends the facts,
specifically in asserting that there is “no dispute” as to DFPS’s compliance with
the 24-hour supervision order. Appellees point out that, after the Liability
Order, when “the special masters visited eight randomly-selected homes . . .
[o]nly one had a workable plan for 24-hour supervision.” The district court
similarly concluded earlier this year that “[t]he actions currently being taken
concerning Foster Group Homes do not follow the spirit of the Court’s
[Liability] Order, and do not cure the multitude of harms present in Foster
________________________
37 Id. at 823.
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Group Homes.” The majority ignores these facts. There is no error in the
district court’s findings, clear or otherwise. I would affirm the district court’s
decision on this claim.
C.
Perhaps the most misguided aspect of today’s decision is the majority’s
repudiation of the remedy that the district court constructed to address DFPS’s
constitutional wrongs. 38 The injunction, the majority holds, “goes well beyond
what is necessary to achieve constitutional compliance.” This is a conclusion
flawed on review of the record, the district court’s reasoning, and the operative
law. Running through the majority’s opinion is the mantra that the district
court has “overreach[ed],” intruding into sensitive areas of State policy
making. Of course, remedial orders that affect the operation of state
governmental institutions are not to be taken lightly. State officials may be
generally “better equipped than a single federal judge to make the day-to-day
policy . . . and funding choices,” and to gather the localized knowledge in
support of such decisions. 39 Courts may crowd out political processes and, in so
doing, violate principles of federalism and the separation of powers. No one
questions these tenets of the constitutional order—but they are not implicated
here. It bears mention that federal law is not foreign to the State, rather it is
the State’s law. 40 Here, the district court only ordered what the State failed for
years to do—to enforce the law to which the majority concedes the State was
________________________
38 Based on its liability determination reversals, the majority vacates all provisions
remediating violations based on Foster Group Home policies and the Licensed Foster Care
placement array policies. The majority’s liability determinations are in error, and so are its
decisions to vacate the corresponding remedial provisions.
39 Missouri v. Jenkins, 515 U.S. 70, 131–32 (1995) (Thomas, J., concurring).
40 Testa v. Katt, 330 U.S. 386, 391 (1947) (“[T]he policy of the federal Act is the
prevailing policy in every state.”).
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deliberately indifferent. In fairness, I would add that the Appellants did not
discriminate against federal authority: DFPS also failed to reform pursuant to
commands of the State’s administrations—a failure this court can redress here
because the agency denies the constitutional rights of children.
It is beyond dispute that there was no effective political process for the
district court to displace. The state agency here defied the efforts of three of
Texas’s longest serving governors. The challenged conduct flows from systemic
and structural defects, and the rights-bearers are children who cannot vote or
directly participate in the political process. PMC children, as we describe
elsewhere, lack caseworker representatives or other advocates to assert their
basic physical and psychological needs—for example, protection from repeated
sexual abuse and neglect. In short, DFPS’s unconstitutional practices defied
political processes, and well-intentioned State administrations have come and
gone struggling to impose order on DFPS. At least as early as 1996, DFPS was
unmoved by the first of the “twenty years of studies conducted or commissioned
by the State.” The administration of Governor Perry returned to DFPS’s
problems in 2010, pointing out that the agency had still not fixed the problems
identified almost fifteen years earlier. Most recently, the district court noticed
the current commissioner’s exhortations to reform at DFPS, and his
acknowledgments that, as yet, the agency was overwhelmed: “our workers are
outnumbered by the opponent—child abuse and neglect.” 41 In its Liability
Order, the district court observed that the State had appointed its “seventh
commissioner since 2004, each of whom was surely ushered in with promises
________________________
41 M.D., 2017 WL 74371, at *4 (quoting Letter from Commissioner Whitman, Oct. 27,
2016).
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that this time it will be different.” 42 More than “[t]wo years and one legislative
session” after the liability determination, the constitutional deprivations
remained unaddressed. The “foster care system of Texas [was still] broken,”
but DFPS insisted still that it “operated a constitutionally sound system.”
1.
On appeal we do not evaluate the district court’s choices relative to our
conception of the optimal remedy. We review for abuse of discretion, reversing
only where the district court has relied on clearly erroneous factual findings,
erroneous conclusions of law, or a misapplication of factual or legal
conclusions. 43 As with all exercises of equitable power, “the nature of the
violation determines the scope of the remedy.” 44 While the remedy must be in
this sense narrowly tailored—it must fit the violation—the district court
otherwise has broad discretion to develop a remedy. 45
Here, no provision was superfluous to the remedy, the whole of which
was narrowly tailored to address DFPS’s constitutional violation. 46 In
constructing its order, the district court drew upon seven years of methodical
work to understand DFPS and the predicaments of thousands of PMC children
subject to its authority. The district court reviewed the named plaintiffs’ case
files, the testimony of 28 fact witnesses (including several former foster
children) and 12 expert witnesses, and more than 400 exhibits (totaling over
390,000 pages), and presided over a two-week bench trial. It issued a 255-page
________________________
42 M.D., 152 F. Supp. 3d at 828.
43 Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 254 (5th Cir. 2014).
44 Swann, 402 U.S. at 16.
45 Id. at 15 (“[B]readth and flexibility are inherent in equitable remedies.”).
46 The State gains relief from the injunction by coming into constitutional compliance
other circumstances creating a need for relief from any of its provisions.
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Liability Order on December 17, 2015, and then considered, selected, and
appointed two special masters, Professor Francis McGovern of Duke
University Law School and Kevin Ryan, a former commissioner of New Jersey’s
child welfare agency, to develop a plan effectuating the court’s order. 47 Over
the following months, the Special Masters “review[ed] hundreds of thousands
of pages of documents” and met with the parties repeatedly. During this
process, DFPS was repeatedly provided opportunity to participate, to
deliberate over the appropriate form of the remedy, and to contribute its
perspective and insights. It declined these opportunities. The Special Masters
submitted their report to the district court on November 4, 2016. The district
court then “hear[d] discussion and clarification” of issues raised by the parties,
and issued an interim order on January 9, 2017, directing yet further work to
inform development of the remedy. The Special Masters accordingly retained
experts from the University of Texas at Austin for workload studies regarding
“I See You” workers and DFPS investigators. Finally, a year later, on January
19, 2018, the district court issued a 116-page Final Order defining the remedy.
2.
The majority pronounces unnecessary the remedy’s requirement that a
PMC child’s caseworker have no more than 14–17 cases at a time (“the caseload
requirement”), because “the primary issue with DFPS’s management of its
caseworker caseloads is the lack of adequate data.” It vacates a corresponding
requirement for DFPS investigators for similar reasons. It does so without
identifying clearly erroneous factual premises, or other abuse of discretion. The
record provides ample evidence that the caseload requirement was an essential
________________________
47 On November 22, 2017, the parties agreed to appoint Francis McGovern as
mediator, terminating his appointment as Special Master.
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part of the remedial plan. Although caseloads had been a longstanding problem
well known to DFPS, the agency refused to act. As the majority states
elsewhere, the record provides “ample evidence” that PMC children do not
receive requisite care because their caseworkers’ “caseloads are extremely
high” and that “there is a direct causal link between high caseloads and an
increased risk of serious harm to foster children.” DFPS understood the
deficiency of its caseloads going back at least to 1996, when the Committee to
Promote Adoption identified excessive caseloads. Despite this information, as
of January 2017, the problem remained. 48 Not surprisingly, the district court
made a factual finding that this trend would continue: “unless directed
otherwise . . . studies and testing will continue, no remediation will occur and
the dangerous conditions will continue to exist.”
Following this reasoning, the district court defined a minimum
requirement for caseworker commitments to each PMC child: that no child
have a caseworker handling more than 14–17 cases at a time. The district court
also ordered DFPS to end the use of “I See You” workers as substitutes for
primary caseworkers. The district court’s remedial choice to impose the
caseload requirement was directly related to a factual finding about how DFPS
operated and the need to ensure an end to its history of recalcitrance: “[T]he
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 . . . brought us to this point.” 49
________________________
48The district court explicitly “note[d] the decades of reports aimed at fixing DFPS,
and the lack of meaningful attempts at improvement.”
49 M.D., 2017 WL 74371 at *7.
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The majority acknowledges the agency’s intransigence. It concedes that
DFPS “had ample opportunity to cure the system’s deficiencies . . . . long before
plaintiffs filed this law suit,” but had nonetheless “failed to take meaningful
remedial action.” While the majority states as a general matter that, in light
of DFPS’s conduct, principles of deference to state authority are “less
applicable,” when it comes to remedial provisions with any teeth—here, the
caseload requirement—it demands “[a] more flexible method.” Far from
identifying clear error, the majority wanders into error itself. It holds that the
caseload requirement is “beyond what [is] minimally required to remedy the
constitutional violation,” reasoning that the district court “essentially adopted
national caseload standards.” The majority finds that professional standards
define best practices, but not constitutional thresholds, and that DFPS may
have compelling reasons for failing to conform to them.
The majority errs both in its understanding of these professional
standards as well as in its understanding of the basis of the district court’s
caseload requirement. The professional standards relevant to child-welfare
caseloads are not aspirational “goals”; rather, they define the levels of care
necessary for the minimal protection of children’s interests. While these
professional standards do not directly establish constitutional requirements—
and the district court did not so find—they provide a frame of reference for
evaluating a state agency’s practices. 50 This is especially so in Texas, where
the Legislature has incorporated professional standards into law. Under Texas
________________________
50 M.D., 152 F. Supp. 3d at 701–02 (“A failure to meet CWLA and COA standards is
not a per se constitutional violation. Professional standards, however, can be evidence for or
against a constitutional violation. . . . Courts generally find that while neither standard
imposes legal obligations on child welfare agencies, both are reflective of the bar to which
child welfare agencies are generally expected to measure up.” (internal quotation marks
omitted)).
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law, if DFPS promulgates caseload standards for its caseworkers, the agency
must ensure that they are “consistent with existing professional standards,”
such as those established “by an authority or association, including the Child
Welfare League of America.” 51 The Child Welfare League of America
determined that caseworkers could effectively handle no more than 15 cases: a
caseload any larger would compromise the caseworker’s ability to protect
children’s interests. Amicus National Association of Social Workers explains
that CWLA’s national standard contemplates that caseworkers require time
both for administrative responsibilities and to build relationships with each
child under their protection, as well as with the adults in the children’s lives. 52
In defining a minimum of acceptable care for children, national professional
organizations consider that an excessive caseload compromises the worker’s
ability to follow a child’s progress and undermines the possibility of a
relationship with the child, both because the caseworker lacks time to spend
with the child, and because the child in turn ceases to perceive the caseworker
as a trusted advocate. 53 DFPS’s response to the Texas statute was to adopt no
standards.
More to the point, the remedial order’s caseload requirement is
consistent with professional standards defining the minimum number of
caseworkers necessary, but it does not originate from them. Rather, it derives
from DFPS’s own estimation of what caseworkers can handle. The Special
Masters explained that, after trial, DFPS produced a Work Measurement
________________________
51 Texas Gov’t Code §§ 531.048, 531.001(5).
52 Brief of Nat’l Assoc. of Social Workers & Its Texas Chapter as Amicus Curiae at 15–
16.
53 Id. at 15–19.
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Study, which concluded that “DFPS caseworkers expended an average of 9.7
hours per month on case profiles most often associated with PMC children, and
that these workers had an average of 137.9 hours per month to spend on their
casework.” Dividing the average time available (137.9) by the average time per
case (9.7), each PMC caseworker could handle a caseload of 14 children. 54 On
the basis of the DFPS Study, the Special Masters recommended that the
district court order DFPS to implement a caseload standard in the range of 14
to 17 PMC cases per caseworker. The Special Masters explained this
conclusion again in a follow-up advisory document submitted to the district
court in December 2016:
DFPS caseworkers had an average of 137.9 hours per
month to spend on their casework. . . . [I]t took DFPS
caseworkers an average of 9.7 hours per month to
work on a PMC case. . . . [D]ividing the average
amount of time available to caseworkers per month
(137.9 hours) by the average number of hours they
used each month to work on a PMC case (9.7 hours)
yields the average number of PMC cases that
caseworkers have time to serve, based on the amount
of time available to them: 14 cases.
The district court repeated this analysis when it adopted the recommendation
in its January 2017 Interim Order, 55 and did so again in its January 2018 Final
Order:
The study’s author reported that the study’s findings
mean that each caseworker (as defined above) has
time to serve an average of 14 PMC children each. . . .
[T]he Court accepts the Work Study as providing the
________________________
54 The majority describes this study, but fails to understand it as the basis of the
remedy’s caseload requirement.
55 M.D., 2017 WL 74371 at *10.
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definitive number of PMC children that a CVS
caseworker can physically handle.
As the district court summarized in its Final Order it “relie[d] on DFPS’s own
study to determine, with overtime, how many children a caseworker can safely
handle.” The majority ignores these numerous explanations, identifying no
clear error in the factual basis for the caseload provision, and no abuse of
discretion in the district court’s adoption of this provision. 56
It makes a corresponding error regarding limits for DFPS investigators.
In vacating these limits, it reaches its own “appellate finding” that it “would
be reasonable for the court to require a comprehensive workload study” for
investigators. Indeed, the district court already did so. Pursuant to the court’s
January 2017 Interim Order, a workload study was conducted by a team of
experts from the University of Texas Austin, which had been retained by the
Special Masters. This study concluded that the median average caseload for
DFPS investigators and inspectors was 14 and 7 cases, respectively, 57 higher
than what the experts thought was a reasonable level. The district court’s Final
Order mandates that investigators and inspectors handle no more than 14
cases at a time. The majority’s vacatur of these key remedial provisions is
unjustified and inexplicable.
3.
The majority removes other provisions from the injunction, without
regard to the integrity of the remedial scheme. These include important
________________________
56It bears emphasis that the district court’s order imposed a caseload requirement
that the Texas legislature would have imposed on DFPS had the agency elected to adopt
standards, which it has refused to do. See supra note 51 and accompanying text.
57To determine the caseload level typical for investigators and inspectors, the Study
used the median of workers’ average daily caseloads.
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institutional changes that the district court found necessary, such as the
abolition of the makeshift “I See You” worker role. 58 It also vacates smaller but
important practical elements, equally necessary to the overall remedy, such as
the requirement that caseworkers meet monthly with their assigned children.
Each of these provisions is an element of a remedy with interacting parts,
which as a totality redresses the constitutional wrong, itself not a single act
but a collection of practices that together inflict injuries on PMC children. The
majority’s excisions are unexplained, presenting as conclusory generalizations
about these individual elements being unduly burdensome or unnecessary.
For example, the majority eliminates the requirement that DFPS include
a recent photo of each PMC child within that child’s record. The district court
imposed the requirement after it determined that DFPS was unable to respond
effectively to the frequent incidence of runaways in the absence of photos. More
generally, the photo requirement addresses the troubling inability of DFPS
caseworkers to recognize the individuals under their care. In vacating this
provision, the majority does not pause to consider that it embodies in concrete,
practical form the principled demand that Texas children under PMC care be
treated as individuals, not administered as things. Treating a child as an
individual—protecting his or her identity as an individual—has long been the
________________________
58 The majority “do[es] not understand the logic of this provision.” It should have
considered the district court’s findings regarding the relative capacities of workers in the
caseworker and “I See You” worker roles. The district concluded that, not only were “I See
You” workers inadequate substitutes for primary caseworkers, but also that DFPS’s use of
such workers “hinders primary caseworkers' ability to protect their children” by undermining
trust between children and agency staff. M.D., 152 F. Supp. 3d at 783. Based on information
gathered by the Special Masters, the district court also determined that “all caseworkers . . .
could only handle 14 PMC cases.” In its Final Order, the district court required that DFPS
caseworkers have a caseload within or below the range of 14 to 17 children. Given that the
agency’s use of “I See You” workers contributed to the constitutional violation, the district
court found it necessary to eliminate that role.
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concern of human rights conventions, 59 a concern that also lies at the core of
the liberty guaranteed in the Fourteenth Amendment.
In another cursory statement, the majority extracts the requirement
that PMC children have landline phones accessible in their foster placements.
In disposing of the provision, the majority opines that, to the extent
underreporting of abuse is a problem, it “can be remedied by mandating that
caseworkers provide children with the appropriate point of contact for
reporting issues.” The imposition of a landline requirement, the majority finds,
would unnecessarily burden DFPS with additional administrative work. Here,
the majority ignores the record. The district court included this provision as
part of the remedial response to PMC children’s inability to report abuse
during infrequent and often non-private meetings with caseworkers. PMC
children had been unable to utilize the existing abuse hotline, and meetings
with caseworkers afforded insufficient opportunities to permit
communications with advocates at DFPS. It was essential to ensure PMC
children’s access to personnel in the agency. The district court cited evidence
of difficulties faced by PMC children in contacting caseworkers; it also cited
evidence of children often lacking access to adult figures who were not co-
workers of abusers. The record also shows that “DFPS does not have a means
of tracking which PMC children are placed in care with access to a phone to
report abuse and neglect.” As a result, “children were subject to serious
physical and sexual abuse that was not reported to the DFPS toll-free, 24-hour
child abuse and neglect hotline.” In these circumstances, a dedicated landline
was a necessary part of the remedy. As with all other aspects of the injunction,
________________________
59See United Nations Convention on the Rights of the Child, arts. 7–8, 19, Nov. 20,
1989, 28 I.L.M. 1448 (“The child . . . shall have the right from birth to a name . . . . States
Parties undertake to respect the right of the child to preserve his or her identity”).
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the landline was one part of a whole: “the Court did not hold that the
Constitution requires that all foster children nationwide must have access to
a landline phone.” Recall the 75% error rate in dispositions of reported abuse.
The district court found that “Texas’s overall foster care system has
unconstitutionally exposed PMC children to an unreasonable risk of harm,”
and that “providing PMC children access to a phone is a necessary ‘measure[]
that safeguard[s] against recurrence’ of that constitutional violation.” The
provision is a rifle shot at a deserving target. Inability to report facilitates
abuse. The presence of a phone is an ever-present warning to abusers, a lifeline
to an unprotected child.
The majority’s crude vacatur of remedial provisions enervates an
injunction carefully constructed in an exhaustive effort spanning years to
address the constitutional violation, with remedies fashioned by experts—
remedies necessary to respond to the constitutional injury visited upon
thousands of children of Texas. These were not, as the majority suggests, the
“personal policy preferences” of a federal judge. As the record resoundingly
demonstrates, this was a remedy necessary in response to an agency the State
has been unable to tame for more than twenty years. DFPS has seized the
liberty of children in their formative years then turned them out, unprepared
to cope with the world, and argues here that it has not denied the
constitutionally secured liberty interest of the children—an argument
unanimously rejected today. The majority’s pull down of the remedies found
necessary by the district court fails to comprehend the injury responded to. I
end where I began. Read again the account of foster child S.A. No abuse? There
is no judicial activism afoot here, at least not of the able district judge, who
only enforced the constitutional rights of PMC children—rights penned for the
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Court twenty-nine years ago by Chief Justice Rehnquist, from which no Justice
dissented. 60 I cannot join.
III.
I would affirm the district court’s determinations on liability and remedy
in full.
________________________
60 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989)
(“[W]hen the State takes a person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility for his
safety and general well-being.”); id. at 201 n.9 (describing without holding, that state foster
care may implicate the liberty interests and corresponding due process rights of children in
state custody). Three Justices dissented, not from the Court’s adopted standard, but because
they would have had the Court go further, extending constitutional obligations to children
beyond the custodial relationship. Id. at 203–12 (Brennan, J., dissenting).
103