Connor B. v. Patrick

United States Court of Appeals
For the First Circuit
No. 13-2467
CONNOR B., by his next friend Rochelle Vigurs; ADAM S., by his
next friend Denise Sullivan; CAMILA R., by her next friend Bryan
Clauson; ANDRE S., by his next friend Julia Pearson; SETH T., by
his next friend Susan Kramer; and RAKEEM D., by his next friend
Bryan Clauson, for themselves and those similarly situated,
Plaintiffs, Appellants,
v.
DEVAL L. PATRICK, in his capacity as Governor of the Commonwealth
of Massachusetts; JOHN POLANOWICZ, in his capacity as Secretary
of the Massachusetts Executive Office of Health and Human
Services; and ERIN DEVENEY, in her capacity as Interim
Commissioner of the Massachusetts Department of Children and
Families,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Kayatta, Circuit Judges.
Sara M. Bartosz, with whom Marcia Robinson Lowry, Rachel B.
Nili, Sarah T. Russo, Children's Rights, Mary K. Ryan, Daniel J.
Gleason, Jonathan D. Persky, and Nutter McClennen & Fish, LLP were
on brief, for appellants.
Liza J. Tran, Assistant Attorney General, with whom Martha
Coakley, Attorney General of Massachusetts, was on brief, for
appellees.
Andrew C. Glass, Stacey L. Gorman, and K&L Gates LLP, on brief
for Center for Public Representation, Juvenile Law Center,
Massachusetts Juvenile Bar Association, National Center for Youth
Law, and Youth Law Center, as amici curiae in support of
plaintiffs-appellants.
December 15, 2014
LYNCH, Chief Judge. There is a common understanding in
this case, shared by both the Commonwealth of Massachusetts and the
plaintiffs, that the Massachusetts Department of Children and
Families' (DCF) administration of the foster care system has flaws
and is in need of improvement. In some instances, these flaws have
led to horrific and heartbreaking outcomes for children.
Plaintiffs, admirably concerned about foster children,
seek to have a federal court both order and oversee improvements.
"A federal court, of course, must identify a constitutional
predicate for the imposition of any affirmative duty on a State."
Youngberg v. Romeo, 457 U.S. 307, 319 n.25 (1982). The plaintiffs
have articulated convincing moral arguments that Massachusetts
should do better. But they have not established, based on the
facts, that there have been constitutional violations as to the
class of foster children, so they are not entitled to an injunction
or federal court oversight. Improvements in the system must come
through the normal state political processes. The problems are now
for the Governor and legislature of Massachusetts to resolve.
Six children brought this class action in federal
district court on behalf of about 8,500 children who are or will be
committed to Massachusetts foster care custody as a result of their
having suffered from abuse or neglect. These six plaintiffs did
not seek individual relief, but relief on behalf of the class.
They asserted that DCF so exposes the plaintiff class to harm or
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the risk of harm that it violates various Amendments to the United
States Constitution, as well as the Adoption Assistance and Child
Welfare Act of 1980 (AACWA), 42 U.S.C. §§ 670 et seq.
After the plaintiffs fully presented their evidence at
trial, and after the defendants examined two further witnesses but
before they put on their whole case, the district court granted
judgment on the record, under Fed. R. Civ. P. 52(c), for the
defendants on all claims. Connor B. ex rel. Vigurs v. Patrick, 985
F. Supp. 2d 129, 138 n.10, 166 (D. Mass. 2013). The district
court's careful factual findings are supported by the record, and
the district court's legal conclusions contain no errors of law.
We affirm the district court's decision.
I.
A. Litigation
Suit1 was filed on April 15, 2010, against the Governor
of Massachusetts, the Secretary of the Executive Office of Health
and Human Services, and the Commissioner of DCF, in their official
capacities. The defendants are alleged to have administered the
foster care system in violation of the substantive and procedural
1
The plaintiffs are represented by Children's Rights, a
nonprofit advocacy organization that has brought other similar
cases, among others. See Connor B., 985 F. Supp. 2d at 133 n.2;
see also, e.g., DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188(10th Cir. 2010) (affirming class certification in suit against
Oklahoma's foster care system); Cassie M. ex rel. Irons v. Chafee,
16 F. Supp. 3d 33 (D.R.I. 2014) (granting judgment for defendants
on the record in suit against Rhode Island's foster care system).
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components of the Due Process Clause of the Fourteenth Amendment,
the constitutional right to familial association, and two rights
arising from the AACWA, all resulting in harm to foster children
while in DCF's care. Connor B., 985 F. Supp. 2d at 133
(summarizing allegations). The plaintiffs' complaint sought a
broad injunction preventing the defendants "from subjecting
Plaintiff Children to practices that violate their rights." They
also sought highly specific injunctive orders which are set forth
in Appendix A. These proposed orders contain subcategories,
including orders governing caseload limits, comprehensive training
programs, assessments of additional services for each child,
monitoring, visitation rights, case plans, quality assurance
systems, performance-based contract monitoring, maintenance rates,
and appointment of expert monitors. In some of these areas, the
plaintiffs sought adoption of standards from private organizations
such as the Council on Accreditation and the Child Welfare League
of America. Plaintiffs also sought their attorneys' fees, as well
as costs and expenses.2
The district court soon certified the desired class on
February 28, 2011. Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D.
288, 291 (D. Mass. 2011). The class consists of "all children who
2
See generally, e.g., Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542 (2010) (discussing the calculation of attorneys' fees
after a consent decree in a class action by foster care children
against Georgia).
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have been (or will be) placed in the custody of [DCF] as a result
of a state juvenile court order adjudicating them in need of 'care
and protection' due to abuse or neglect by their parents," an
estimated 8,500 children. Id. at 291-92. The district court
adopted an August 15, 2012, fact cutoff date for the liability
determination. Connor B., 985 F. Supp. 2d at 133 n.1. The
defendants have not appealed the class certification order, so
whether this class was appropriately certified is not before us.3
After extensive discovery, trial began on January 22,
2013. Id. at 134. At the close of plaintiffs' case, on April 30,
the defendants filed a motion for judgment on the record pursuant
to Fed R. Civ. P. 52(c). Id.
The district court granted the defendants' motion on
September 30 and issued an opinion on November 22. See id. at 166.
It made a lengthy series of factual findings cataloging areas where
DCF needs to improve. See id. at 138-56. As the district court
noted, because it did not hear the defendants' complete case, its
findings may have overstated matters in favor of the plaintiffs.
See id. at 138 n.10. It ultimately concluded that, though "DCF's
3
On August 20, 2010, the defendants moved to dismiss,
challenging both the district court's jurisdiction and the
sufficiency of the plaintiffs' complaint. See Connor B. ex rel.
Vigurs v. Patrick, 771 F. Supp. 2d 142, 151 (D. Mass. 2011). The
district court denied the defendants' motions on January 4, 2011.
Id. at 172. On December 3, 2012, the defendants also moved for
partial summary judgment, which the district court denied as a
matter of judicial economy. Connor B., 985 F. Supp. 2d at 134.
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management of foster care has been less than stellar," the facts
did not demonstrate class-wide constitutional violations, nor a
violation of the AACWA, and so injunctive relief was not warranted.
Id. at 162-66. This appeal followed.
B. Findings
We first recount undisputed background material and
findings to set the context. The history of both abused children
and efforts to improve the care of children in Massachusetts foster
care custody precedes the April 2010 filing of suit. In 2006, in
reaction to several high-profile failures by DCF, the Massachusetts
state legislature established a committee to study the state's
child welfare system. That committee issued a report entitled
"First, Do No Harm," which led to the enactment in July 2008 of
state legislation reforming DCF's approach to children in its care.
See 2008 Mass. Acts ch. 176.
In June 2007, also before this litigation was brought, a
new Commissioner, Anthony "Angelo" McClain, arrived at DCF with a
mandate to modernize and transform the department. In May 2008, he
began development of a new strategic plan, involving a range of
ideas for improvement from public and private sources. The goal
was to adopt a subset of those ideas, those that were consonant
with the state's context and complementary to DCF's existing
programs. This planning process led to over 500 recommendations,
which the Commissioner prioritized and addressed. DCF then adopted
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some of those recommendations in the 2009 strategic plan and
initiated demonstrable efforts to implement them. For example, DCF
has made use of caseworkers more efficient and less abrasive for
families. It reduced the number of caseworkers that dealt with
families at the initial screening, from three caseworkers to two,
and reassigned the third caseworker's responsibilities to the other
two. This meant families could reduce the number of DCF workers
with whom they interacted and briefed on their situation. DCF also
extended the time allotted for initial screenings, so those
screenings could be more thorough and involve input from a broader
variety of people. The goal of this process, as the Commissioner
explained at trial, was to institute "continuous efforts to get
better . . . each month, each quarter." This effort preceeded
filing of this suit.
Most of the severe abuses the six named plaintiffs
experienced while in DCF custody were before or during 2009.
Several of the six named plaintiffs suffered instances of rape,
sexual abuse, beatings, force-feeding, and maltreatment. For
example, Connor B. at age six was placed in a home with a teenager
known to be at risk for sexually abusing younger children and was
repeatedly raped. Connor B., 985 F. Supp. 2d at 141. The teenager
was removed and DCF revoked the license of the facility. Id. The
district court provided a fuller description of these abuses. Id.;
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see also Connor B., 272 F.R.D. at 291-92 (recounting the
allegations of each named plaintiff from the complaint).
DCF has continued its modernization efforts since the
filing of this lawsuit. For example, DCF is updating its
assessment protocols for its delivery of services to focus on the
child's current well-being and to yield "practical actionable
information," drawing from two national clinical approaches.
It is also true that DCF took over $100 million in budget
cuts over the five years following the 2008 recession.
Nonetheless, after suit was brought, DCF developed a second
strategic plan, for 2012-15, seeking to build on the first set of
process and structural improvements and to improve the content of
care.
DCF's strategic plan has also led to progress and
improvements for children in DCF's care. For the years since 1997
for which federal data is available, over 98% of children in the
foster care system did not suffer from any abuse or neglect.
Connor B., 985 F.3d at 139-40. Of the one-to-two percent who did
suffer one incident of abuse, it has become more unlikely they will
suffer a second instance. In 2009, about 88% of that small
percentage of children who did suffer an incident of abuse or
neglect made no second supported allegation of abuse or neglect
within the next year. By 2011, 92% of that one-to-two percent who
had been abused once in custody did not suffer further abuse.
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DCF's strategic plan identified as a problem that it
lagged behind other states in its rate of placing children with
family ("kinship placement"). At trial, the Commissioner admitted
falling short of the state statutory standard for kinship
placement.4 The reason was, in part, because the children's family
members often encountered challenges in the background check
process, for example due to a past criminal conviction. In
response, as part of what DCF has called the "Kin First"
initiative, DCF made it easier for family members to get background
check waivers, which helped increase the number of children in
kinship placements from 20% to between 27% and 28% over the course
of the 2009 strategic plan. The number of children in family
settings who are also in kinship placements increased to between
55% and 60% over the same time. That progress has been noted.
Massachusetts officials, including the Secretary of the Executive
Office of Health and Human Services, recognized DCF for its self-
4
By statute and regulation, Massachusetts expresses a
preference for placement of children with their kin when doing so
is in the best interests of the child. See Mass. Gen. Laws ch.
119, § 23(c) ("Whenever the department places a child in foster
care, the department shall immediately commence a search to locate
any relative of the child or other adult person who has played a
significant positive role in that child's life in order to
determine whether the child may appropriately be placed with that
relative or person if, in the judgment of the department, that
placement would be in the best interest of the child." (emphasis
added)); 110 Mass. Code. Regs. § 7.101(2) (2014) ("The Department
shall consider, consistent with the best interests of the child,
the following placement resources in the following order: (a)
placement with a kinship family . . . ." (emphasis added)).
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directed improvement efforts in 2012 and 2013, and the federal
government selected DCF to participate with a handful of other
states in a pilot program and awarded DCF a grant to train its
stakeholders on trauma-informed practices.
Turning to additional findings from the district court's
opinion, which we do not repeat in full, they reach a wide swath of
DCF's activities.5 For example, the court found that children in
DCF custody6 receive "relatively rare" visits from their family.
Id. at 142-43. "DCF regularly makes use of a variety of short-term
5
The plaintiffs offered evidence from studies conducted by
the Children's Research Center, expert testimony, testimony of DCF
officials, federal reporting, and standards established by national
child welfare organizations. See Connor B., 985 F. Supp. 2d at
136-40 & n.10.
6
A child might enter DCF custody by means of three different
procedures, as relevant here, going through the state court system.
First, the normal procedure to commit a child to custody requires
notice, an independent investigation, a hearing, and a judicial
determination that the parent is unfit by clear and convincing
evidence. See Mass. Gen. Laws ch. 119, §§ 24-26; Adoption of
Carlos, 596 N.E.2d 1383, 1388-90 (Mass. 1992). Second, the
emergency procedure allows transfer of a child to 72-hour custody
if "the court is satisfied after [someone] testifies under oath
that there is reasonable cause to believe that: (i) the child is
suffering from serious abuse or neglect or is in immediate danger
of serious abuse or neglect; and (ii) that immediate removal of the
child is necessary to protect the child. . . ." Mass. Gen. Laws
ch. 119, § 24. Finally, the procedure for temporary custody
pending the statutory hearing requires that a court first certify
that "continuation of the child in [the child's] home is contrary
to [the child's] best interests and" DCF attempted to "prevent or
eliminate the need for removal from the home." Id. §§ 25, 29C. At
all these proceedings, the child and the parent have the right to
counsel. Id. § 29. See generally Kindregan, Jr. et al., 3 Mass.
Prac., Fam. Law & Prac. § 87.1 (4th ed.) (summarizing these
procedures).
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placements," which "disrupt the lives of children in care." Id. at
143. Only "between 43% and 50% of children received monthly visits
from [] caseworkers," and the court acknowledged that there is "a
correlation [] between the frequency of caseworker visits and
favorable foster care outcomes." Id. at 146. Fewer than 20% of
children receive a timely medical screening on entry into foster
care. Id. at 148. Up to 35% of children lack an individualized
case plan for their time in foster care, and many of the remainder
have incomplete case plans. Id. at 155.
The court also found that these shortfalls are far from
the whole story. Most notably, DCF has consistently and
successfully protected about 99% of children in its care from
maltreatment. Id. at 140 (citing data from 2006 to 2011). Though
DCF lags behind other states and national metrics in (a) the number
of children who suffer from maltreatment in foster care, (b) the
rate of children who reenter foster care after leaving it, and (c)
caseworker caseloads, DCF has improved in each of these categories.
See id. at 140, 145-46, 151-52. Similarly, though DCF has been
subject to federally mandated improvement plans under the Social
Security Act and its regulations, see 45 C.F.R. § 1355.35, each
time the state has satisfied those plans.
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II.
We review the district court's findings of fact for clear
error, and the governing legal issues de novo.7 Powell v.
Alexander, 391 F.3d 1, 7 (1st Cir. 2004). "An inquiry into whether
current [institutional] conditions constitute an ongoing violation
of a federal right comprises a mixed question of fact and law, the
answer to which we review along a degree-of-deference continuum,
ranging from plenary review for law-dominated questions to
clear-error review for fact-dominated questions." Healey v.
Spencer, 765 F.3d 65, 73-74 (1st Cir. 2014) (quoting Morales
Feliciano v. Rullán, 378 F.3d 42, 52-53 (1st Cir. 2004)) (internal
quotation marks omitted). Accordingly, we review "the legal labels
applied to facts" more closely than we traditionally review factual
findings, though "often with some deference to the district judge."
Battista v. Clarke, 645 F.3d 449, 454 (1st Cir. 2011). The
plaintiffs do not generally dispute the district court's factual
findings. Their real dispute is with the legal conclusions that
should be drawn from those findings.
7
Judgment on the record is appropriate when "a party has been
fully heard on an issue during a nonjury trial and the court finds
against the party on that issue." Fed. R. Civ. P. 52(c); see
Morales Feliciano v. Rullán, 378 F.3d 42, 59 (1st Cir. 2004).
"[T]he court's task is to weigh the evidence, resolve any conflicts
in it, and decide for itself in which party's favor the
preponderance of the evidence lies." 9C Miller et al., Fed. Prac.
& Proc. Civ. § 2573.1 (3d ed. 2014). There was no Rule 52(c)
error.
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We choose to write narrowly. As Justice Souter has
noted, courts should avoid, if possible, turning "fresh furrows in
the 'treacherous field' of substantive due process." Troxel v.
Granville, 530 U.S. 57, 76 (2000) (Souter, J., concurring in the
judgment) (quoting Moore v. City of East Cleveland, 431 U.S. 494,
502 (1977) (opinion of Powell, J.)). The parties dispute the
appropriate legal standard the plaintiff class has to meet to show
a constitutional violation, specifically whether the plaintiffs
must show that the defendants' treatment of children "shocks the
conscience," see Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998), or whether it suffices that they have met a different
standard under Youngberg v. Romeo, 457 U.S. 307 (1982). We have
no need to decide that legal question because the plaintiffs'
evidence does not establish that even the Youngberg standard is
met. Our conclusions are similarly narrow on the remaining claims.
III.
A. Substantive Due Process Claim
The Due Process Clause imposes a duty on the state for
the "safety and general well-being" of an individual when the state
affirmatively "restrain[s] the individual's freedom to act on his
own behalf -- through incarceration, institutionalization, or other
similar restraint of personal liberty." DeShaney v. Winnebago
Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989). Notably,
this duty does not arise from "the [s]tate's knowledge of the
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individual's predicament or from its expressions of intent to help"
the individual. Id. The parties agree on this.
Whether the state deprived an individual of "freedom to
act on his own behalf," and so is subject to a correlative
constitutional duty, is often described as whether a "special
relationship" exists between the state and the individual. J.R. v.
Gloria, 593 F.3d 73, 79 (1st Cir. 2010) (quoting Rivera v. Rhode
Island, 402 F.3d 27, 34 (1st Cir. 2005)) (internal quotation marks
omitted). Though we have never held that such a relationship
exists between the state and children in foster care, we have
assumed so arguendo. See Gloria, 593 F.3d at 80. We do so again
here.
The district court found that the special relationship of
foster care entails a duty on the state to provide for six
particular rights: (1) to a safe living environment, (2) to
services necessary for the children's physical and psychological
well-being, (3) to treatment and care consistent with the purpose
of their entry into the foster case system, (4) to custody only for
such time as is necessary, (5) to receipt of care and treatment
through the exercise of accepted professional judgment, and (6) to
the least restrictive placement. Connor B., 985 F. Supp. 2d at
158-59. We need not and do not resolve whether the Constitution
offers such broad positive guarantees. The defendants do not
challenge the district court's holding, so we will also assume
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arguendo that these six areas constitute an appropriate framework
for analysis.
The Supreme Court has explained that executive branch
actors violate an individual's constitutional rights only if they
engage in conduct that "shocks the conscience." Lewis, 523 U.S. at
846; see Gloria, 593 F.3d at 79-80. In particular, Lewis makes
clear that harm caused by officials' negligence categorically
cannot be a Due Process violation. Lewis, 523 U.S. at 848-49.
Sixteen years before Lewis, in Youngberg, the Supreme
Court found cognizable certain limited substantive due process
claims by an adult involuntarily committed in a state institution
for the intellectually disabled. In Youngberg, the plaintiff
claimed due process rights to "safe conditions of confinement,"
"freedom from bodily restraints," and "training or 'habilitation.'"
457 U.S. at 309. The Court affirmed the first two as historic
liberty interests. Id. at 315-16. As to the third, though the
state had a duty to provide "certain services and care" to those
involuntarily in its custody, the state also "necessarily has
considerable discretion in determining the nature and scope of its
responsibilities," including discretion in choosing among aspects
of a problem to approach at a given time. Id. at 317. The Court
found only that the state owed the plaintiff "minimally adequate or
reasonable training to ensure" his other liberty interests, rather
than finding an independent "general constitutional right to
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training per se" or treatment that would enable the plaintiff to
achieve his "maximum potential." Id. at 318-19 & n.23.
Even those established liberty interest rights were "not
absolute." Id. at 320. The issue was "not simply whether a
liberty interest has been infringed but whether the extent or
nature of the restraint or lack of absolute safety is such as to
violate due process." Id. Importantly, the Court held that
"liability may be imposed only when the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate
that the person responsible actually did not base the decision on
such a judgment." Id. at 323. This is what is referred to as the
Youngberg standard.
Whatever tension there is between the Youngberg standard
and the Lewis shocks-the-conscience test8 is of no moment here.
The district court found, on the facts, that neither standard was
8
The plaintiffs urge that these cases, read together, show
that the Youngberg standard is the definition of conscience-
shocking conduct in the context of those involuntarily committed --
including both the plaintiff in Youngberg and the class here.
Rejecting that argument, the district court adopted a "new, two-
pronged approach," requiring the plaintiffs to prove both that the
defendants' conduct violated the Youngberg standard "and that such
conduct shocks the conscience." Connor B., 985 F. Supp. 2d at 160
(quoting Connor B., 771 F. Supp. 2d at 163) (internal quotation
mark omitted). On appeal, the defendants vigorously defend the
district court's rule.
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met. It suffices that we agree that the Youngberg standard was not
met and do not go further.9
Youngberg also requires that courts presume that the
decisions of qualified professionals -- like the administrators of
DCF -- are valid.10 457 U.S. at 323. Liability is appropriate only
when the professionals' decision is "such a substantial departure
from accepted professional judgment, practice, or standards as to
demonstrate that the person[s] responsible actually did not base
the decision on such a judgment." Id. Such deference to state
officials is appropriate to minimize undue "interference by the
federal judiciary with the internal operations of [state]
institutions," as "[i]t is not appropriate for the courts to
9
Plaintiffs also argue that the district court improperly
adopted a mens rea requirement for the Youngberg test by using the
term "wanton." Connor B., 985 F. Supp. 2d at 160 (construing the
standard to require "the most wanton abandonment of caretaking
responsibilities," rather than "mere deviance from professional
norms"). We disagree. Reading the opinion as a whole, the
district court did not misapprehend the correct standard, though
its choice of colorful language was unfortunate. The court applied
the correct Youngberg standard, focusing on objective measures of
DCF's performance, not the state of mind of the actors.
10
This is not a typical Youngberg case, in which the
plaintiffs challenge a professional's particular decision or
practice that applies to them, like the medical protocols in
Youngberg itself. See, e.g., Santana v. Collazo, 793 F.2d 41, 42
(1st Cir. 1986) (describing challenge to use of isolation at
juvenile detention facility). Nonetheless, administration of a
foster care system is a matter of professional judgment, similarly
involving specialized expertise and professional norms. See, e.g.,
Connor B., 985 F. Supp. 2d at 136-38 (describing the credentials
and expertise of individual professionals and institutions
appearing at trial).
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specify which of several professionally acceptable choices should
have been made." Id. at 321-22 (quoting Romeo v. Youngberg, 644
F.2d 147, 178 (3d Cir. 1980) (Seitz, C.J., concurring)) (internal
quotation mark omitted). As the Court explained in Lewis, "the
Fourteenth Amendment is not a 'font of tort law to be superimposed
upon whatever systems may already be administered by the
States . . . .'" 523 U.S. at 848 (quoting Paul v. Davis, 424 U.S.
693, 701 (1976)).
We agree that the six individual plaintiff children were
in fact harmed. But the plaintiffs do not ask for a determination
as to whether the constitutional rights of those six were violated.
This lawsuit was not framed to bring relief to the named
plaintiffs, but to obtain class-wide federal injunctive relief
mandating federal court oversight of the enormously complex state
foster care system.
The DCF, apart from being subject to federal
constitutional obligations, has duties imposed by state statutes
and regulations. But violation of a state law duty is not a ground
on which to award federal injunctive relief. And there is no claim
that there is a constitutional infirmity in any relevant state law.
The plaintiffs have sought to take aspirational
statutory, regulatory, and private standards11 as to a variety of
11
The district court extensively discussed the regulatory
structure and sources of child welfare standards in its opinion,
and we refer the reader to that. See Connor B., 985 F. Supp. 2d at
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topics within the overall complex of foster child care and convert
each of them to constitutional requirements. The district court
correctly rejected that attempt, as do we.
This is not a case in which the plaintiffs have shown
that the DCF has engaged in particular practices which have already
caused direct harm to the entire class or even a majority of the
class. Nor have the plaintiffs shown that the Youngberg standard
has been met on existing conditions. The assertion also fails that
the present deficiencies mean that the children are exposed to an
incrementally greater risk of future harm, and harm of
constitutional dimensions. That there may be deficiencies yet to
be fully addressed does not establish that there has been a
constitutionally cognizable increased risk of class-wide harm, much
less that the Youngberg standard has been satisfied.
There are good reasons class-wide challenges to a state
agency's entire set of practices for care of foster children are
difficult to bring successfully. As Youngberg states, "there
certainly is no reason to think judges or juries are better
136, 139-40, 142-51, 153-56. However, the federal standards were
intentionally set above the performance of most states -- at the
75th percentile of states -- specifically to push states to improve
against that benchmark. Id. at 139 n.13; see Title IV–E Foster
Care Eligibility Reviews and Child and Family Services State Plan
Reviews, 65 Fed. Reg. 4020, 4025 (Jan. 25, 2000) (codified at 45
C.F.R. pts. 1355–1357) ("We recognize that we have set a high
standard. However, we think it is attainable and that our overall
approach for moving States to the standard through continuous
improvement is sound.").
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qualified than appropriate professionals in" administering an
institution. 457 U.S. at 322-23. Judicial review is "limit[ed],"
to prevent "interference by the federal judiciary with the internal
operations of these institutions." Id. at 322. The presumptive
correctness of the decisions of professionals is "necessary to
enable institutions of this type -- often, unfortunately,
overcrowded and understaffed -- to continue to function." Id. at
324.
The plaintiff class has failed to show that the district
court's findings of fact and ultimate conclusions are clearly
erroneous. The bottom line of the findings is that in all but one
year of the period 2006-11, more than 99% of children in DCF foster
care custody were safe from abuse and neglect while in custody.
Connor B., 985 F. Supp. 2d at 140.12 Where DCF was not able to
prevent maltreatment from occurring, the court found DCF "acted
reasonably when such events took place by removing the foster child
from the harmful environment." Id. at 161.
The fact that a child reenters foster care again after
release from custody does not establish that there has been a
constitutional violation -- in fact, the best interests of the
child may require it. Even using that as a metric, reentry rates
for children who have previously been in foster care have dropped
12
And even in its worst year, Massachusetts missed the
national standard set by the federal government by less than one
percent. Connor B., 985 F. Supp. 2d at 139-40, 160-61.
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from 22.3% in 2000-01 (compared to the national standard of 8.6%)
to between 15% and 16% for years between 2006 and 2011 (close to
the national medians fluctuating between 11.8% and 15%). Id. at
145-46. Indeed, DCF has improved on a variety of metrics in recent
years, including kinship placements, caseworker caseloads, and
prevention of repeat incidence of maltreatment.13
The district court noted that placement problems could be
"traced to a single root cause:" the "severe shortage in the number
of foster homes." Id. at 144. It also noted that increasing the
number of foster homes would not necessarily itself resolve the
ongoing placement difficulties. Id. at 144-45 (explaining the need
to recruit foster homes with particular characteristics, like the
ability to handle certain types of behavior, to meet each child's
individual needs). As the defendants observed at oral argument,
insofar as DCF has fallen short of federal requirements, it has
also fully implemented the attendant federally imposed improvement
plans.
The court did not accept the plaintiffs' assertions that
DCF officials had unconstitutionally mismanaged the system, or that
DCF officials engaged in substantial departures from professional
13
While the plaintiffs view DCF's conduct through the lens of
their class, DCF exercises its professional judgment to improve the
system as a whole, which encompasses children far beyond the class.
DCF's efforts to improve its screening process before children
enter foster care custody, as discussed above, buttress the
defendants' case.
-22-
judgment, and that mismanagement had caused harm to the class. It
found the plaintiffs have not proven "institutional" failings as to
the class. Id. at 162. We agree. Having reviewed the voluminous
record, the evidence simply does not show that DCF has
substantially departed from accepted professional judgment, much
less that it departed so substantially as to show that such
judgment was not exercised. See Youngberg, 480 U.S. at 323.
Plaintiffs also say the district court erred in not separately
analyzing the "risk of harm" as it was required to do in an
injunctive relief case. Again, we do not agree that the court
failed to conduct such an analysis.14
The district court observed that, though DCF has failed
to comport with national standards and its internal policies, such
data "do not reveal the entire picture." Connor B., 985 F. Supp.
2d at 160. DCF is actively improving, and the Due Process Clause
does not require that the defendants instantly fix all deficiencies
in the foster care system.
Plaintiffs emphasize that the defendants have allowed
some deficiencies to persist as to some problems after identifying
them. DCF has admittedly corrected other problems, and plaintiffs
do not suggest that the defendants have failed to exercise
14
We do not accept the argument that being in the bottom of
a list of states, without more, provides strong evidence of a
constitutional violation. Once a list is established, there is
always someone at the bottom.
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professional judgment in ordering improvements over time, or in
deciding which deficiencies to address first. Instead, plaintiffs
characterize these improvements as no more than "preliminary" and
inadequate in light of the scope of the problem. A state is not
required to "choose between attacking every aspect of a problem or
not attacking the problem at all." Youngberg, 457 U.S. at 317(quoting Dandridge v. Williams, 397 U.S. 471, 486-87 (1970))
(internal quotation marks omitted).
Not only has class-wide liability not been shown, itself
a needed precursor to any relief, but plaintiffs have also not met
the requirements for injunctive relief. See eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (describing the
equitable requirements for injunctive relief). To grant injunctive
relief notwithstanding DCF's concrete, good faith improvements is
precisely the kind of substitution of judicial judgment for
professional judgment that Youngberg prohibits, especially in light
of the "sensitive federalism concerns" at play in institutional
reform litigation. See Horne v. Flores, 557 U.S. 433, 448 (2009)
(noting in a different context that "[f]ederalism concerns are
heightened" when relief would "dictat[e] state or local budget
priorities").
The plaintiffs offer a final argument that the court's
several mentions of budgetary constraints on DCF constitutes legal
error justifying automatic reversal. They cite Watson v. City of
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Memphis, 373 U.S. 526 (1963), among other cases, for the
proposition that "vindication of conceded constitutional rights
cannot be made dependent upon any theory that it is less expensive
to deny than to afford them." Id. at 537.
More precisely, plaintiffs say the court committed legal
error by "elevating fiscal considerations to a defense in a
constitutional case where fundamental rights have been shown to be
violated." We need not consider that legal proposition, because
the premise is not true. That is not what Judge Young did.
The district court found there were no constitutional
violations. It did not find that there were violations but that
they were caused and so excused by budgetary constraints. It began
its conclusions of law by explaining that its role is "to
adjudicate the claims before it, [] external considerations
notwithstanding." Connor B., 985 F. Supp. 2d at 158. It
explicitly cited the same sentence from Watson v. City of Memphis
that the plaintiffs quoted above. Id. In the substantive due
process section, its discussion of "financial and administrative
constraints" comes after its conclusion, based on the record, that
"it is not clear that the Defendants' behavior has sunk to a level
warranting injunctive relief." Id. at 160-61. Finally, the
district court decided that, in light of the "mixed record,"
including DCF's improvements in certain areas, it "respectfully
declines to substitute its judgment for that of duly elected
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Massachusetts lawmakers." Id. at 162. In the portion of the
opinion dealing with payments to homes that take in foster
children, the district court expressly discussed its willingness to
find the defendants liable should they "fall substantially
below . . . guidelines in the coming months or years,"
notwithstanding budgetary pressures. Id. at 165-66. The court
committed no error.15
B. Other Claims
The plaintiffs' three other legal claims fail for similar
reasons.
1. Familial Association
The plaintiffs claim that the defendants' conduct
violated their independent constitutional right to familial
association. "[T]he Supreme Court has recognized an abstract
fundamental liberty interest in 'family integrity' . . . ."
Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) (citing Frazier v.
Bailey, 957 F.2d 920, 292-30 (1st Cir. 1992) (collecting cases)).
That interest typically arises in cases concerning parents' rights
15
The plaintiffs are wrong to suggest that a state's fiscal
constraints are irrelevant. In Youngberg itself, the Court
explained that the decisions of professionals are presumptively
valid in part because such a presumption is "necessary to enable
institutions of this type -- often, unfortunately, overcrowded and
understaffed -- to continue to function." 457 U.S. at 324.
Youngberg also noted that in Parham v. J.R., 442 U.S. 584, 599-600
(1979), a procedural due process case, the balancing of an
individual's liberty interests against those of the state includes
"the fiscal and administrative burdens [which] additional
procedures would entail." Youngberg, 457 U.S. at 321.
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to decide "the care, custody, and control of their children."
E.g., Troxel, 530 U.S. at 66 (2000) (plurality opinion); Hatch v.
Dep't for Children, Youth, & Their Families, 274 F.3d 12, 20 (1st
Cir. 2001). That parental interest is not the direct issue here,
as the state courts have granted custody here to DCF, not the
parents. This is not a case in which we are asked to assess a
parent's challenge to the state's removal of a child from the
parent's custody. Rather, the challenge here is to the adequacy of
the state's efforts to maintain family contacts after it has
properly removed a child.
It is also true that the Supreme Court and this court
have used language expressing an interest in familial integrity,
privacy, and association in broader terms than that of parents
having control of their children. See, e.g., M.L.B. v. S.L.J., 519
U.S. 102, 119 (1996) (explaining that "the interest of parents in
their relationship with their children is sufficiently fundamental
to come within the finite class of liberty interests protected by
the Fourteenth Amendment" (quoting Santosky v. Kramer, 455 U.S.
745, 774 (1982) (Rehnquist, J., dissenting) (internal quotation
marks omitted))); Stanley v. Illinois, 405 U.S. 645, 651 (1972)
("The integrity of the family unit has found protection in the Due
Process Clause of the Fourteenth Amendment . . . ." (citations
omitted)); Parker v. Hurley, 514 F.3d 87, 102 (1st Cir. 2008)
(citing M.L.B., 519 U.S. at 116) ("The due process right of
-27-
parental autonomy might be considered a subset of a broader
substantive due process right of familial privacy."); Carter v.
Lindgren, 502 F.3d 26, 30 (1st Cir. 2007) (discussing the "right to
familial integrity" regarding parental custody).
The scope of this interest in familial integrity is far
from clear. See Payne-Barahona v. Gonzáles, 474 F.3d 1, 3 (1st
Cir. 2007) (noting that the family integrity cases "are notable for
the division of views in most of the cases and for the difficulty
of fitting the analyses or results into a coherent pattern"). It
is clear that the interest is a limited one. In particular, it is
balanced against the state's right to investigate allegations of
abuse or neglect and take appropriate remedial action. See Carter,
502 F.3d at 30; Hatch, 274 F.3d at 20-22.
The district court found that this family integrity
"right" is only "implicated when children [in custody] are denied
any meaningful contact with family members." Connor B., 771 F.
Supp. 2d at 164 (rejecting the "any contact" standard as too
stringent); accord Connor B., 985 F. Supp. 2d at 163. The district
court also viewed this interest "through the lens of substantive
due process, as the former is derived in whole or in part from the
latter." Connor B., 985 F. Supp. 2d at 163. The plaintiffs
challenge neither of these characterizations, so we accept them
arguendo. Indeed, it is not clear that this argument adds anything
to the substantive due process claim.
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The plaintiffs' principal argument on appeal is that the
district court denied relief on this right to meaningful family
contact for children in DCF care solely due to DCF's budgetary
constraints. Not so. Viewing this right through the lens of
substantive due process, at issue is DCF's application of
professional judgment in administering the relationship between the
children in its custody and their families.
The plaintiffs argue that DCF has a affirmative
constitutional duty to facilitate parental and sibling visitation.
Even if so, the district court found Massachusetts was in
substantial conformity with federal statutory law under the Social
Security Act based on the first round of federal assessments. Id.
at 142, 163-64. That compliance with the statute undercuts any
claim of a constitutional violation during this time period.
The plaintiffs then focus on the fact that Massachusetts
was found in need of improvement by the Children's Bureau of the
Department of Health and Human Services in its second round of
assessments, completed in 2007. Id. at 142, 163-64. Similarly,
the district court extrapolated from the plaintiffs' study of DCF
case files from 2009-10 to find that only 20.9% of children
received consistent monthly visits from siblings, and 37.6% from
parents. Id. at 142-43, 163-64. But DCF represents that it has
complied with the improvement plan derived from that federal
review, and the plaintiffs do not suggest otherwise.
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Indeed, it would be irresponsible of DCF to provide
family access in certain situations. By definition, the class
members are those children who have been removed from their
families because a state juvenile court has reviewed testimony and
determined that they suffered abuse or neglect at their parents'
hands or those of the relevant supervisory adult. Connor B., 272
F.R.D. at 291; Connor B., 771 F. Supp. 2d at 150. The plaintiffs
do not quantify the number of children for whom family visits are
appropriate but unprovided.
DCF's approach to familial integrity is also much broader
than the visitation interest pressed by the plaintiffs. DCF has
made efforts to improve its initial screening protocols with the
aim of improving DCF's working relationship with those families.
Similarly, while the district court recognized that DCF failed to
place children with siblings or near families in about a third of
cases, children with siblings in foster care are often placed with
at least one sibling for at least part of their time. Connor B.,
985 F. Supp. 2d at 142-43.
Kinship placements, as described earlier, are a present
and ongoing locus of DCF improvements. To the extent that children
are not placed with their kin, it is in part because not all
children have kin with whom they could properly be placed,
particularly in light of the other factors (like those related to
child safety) which bear on the placement decision. See Connor B.,
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985 F. Supp. 2d at 142 (citing 110 Mass. Code Regs. §§ 7.108,
7.113) (explaining considerations other than kinship that affect
the placement choice).
The record does not show that the plaintiff class is
denied any meaningful contact with their family members on a
class-wide basis, nor that any purported failure on the part of DCF
to facilitate familial contact is a substantial departure from
accepted professional judgment. To the contrary, it shows that DCF
exercised professional judgment in administering its system with
reference to familial association, and the federal government has
found it adequate.
2. Procedural Due Process
The plaintiffs also appeal the district court's denial of
their federal procedural due process claim. The plaintiffs argue
that there are four protected rights as to children in custody to
which procedural due process must attach. Those rights are (1)
rights in relation to "placement of children in private families;
early and periodic screening, diagnostic and treatment standards;
individualized health care plan," (2) the right to a medical
passport, (3) rights to sibling visitation, and (4) the right to be
considered for placement with relatives or similar persons. Connor
B., 985 F. Supp. 2d at 164. We will assume arguendo that these
rights may ground a constitutional claim.
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The plaintiffs' claim is that advance written notice of
DCF's intent to "deny, reduce, or terminate services" -- which is
required by the state regulations governing DCF, 110 Mass. Code
Regs. § 8.01(1) -- is "not uniformly and consistently provided."
Another state regulation also grants children in DCF custody the
right to appeal, inter alia, "the suspension, reduction, or
termination of a service." 110 Mass. Code Regs. § 10.06(3).
Under the relevant state law, those hearings "shall be scheduled"
within 90 days. Id. § 10.10(2) (2011); see id. § 10.10(1)(2014)
(using a 65-day deadline). But DCF has not met those state law
requirements. Fair hearings are subject to "overwhelming backlogs"
such that they are rarely held within the regulatory time frame.
Connor B., 985 F. Supp. 2d at 156, 164.
Even so, the plaintiffs' evidence does not suffice to
establish a violation of any federal procedural due process right.
The plaintiffs do not allege that DCF's policies regarding these
rights are inadequate. When DCF deviates from those policies, it
is a mistake. Such mistakes under state law do not constitute a
violation of federal due process, especially in light of the
state's fair hearings. See, e.g., San Gerónimo Caribe Project,
Inc. v. Acevedo-Vilá, 687 F.3d 465, 478-81 (1st Cir. 2012) (en
banc).
Beyond that, the plaintiffs have not explained, as they
must, why hearings within 90 days (or 65 days), rather than
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hearings on a longer time frame, are constitutionally required to
prevent erroneous deprivations of rights, nor why enforcement of
the regulatory limit they suggest instead is an appropriate burden
to impose on the state. See Mathews v. Eldridge, 424 U.S. 319, 335
(1976). Here, as in the substantive due process inquiry, we are
mindful of the practical reality that imposing a series of
constitutional procedural requirements on an "overcrowded and
understaffed" institution consisting of individuals with "widely
varying needs and problems" could prevent the institution from
continuing to function. Youngberg, 457 U.S. at 324; see also id.
at 321 (linking the substantive and procedural due process
analyses' balance between individual interests and society's
demands).
The plaintiffs respond by arguing that any delay in
giving children the prophylactic protections described above can
lead to irreparable harm, so the defendants should at a minimum be
held to the regulatory time limit. That argument is again
insufficient. The plaintiffs must explain why, in light of the
Mathews balancing test, the DCF's current conduct notwithstanding
the regulation is constitutionally inadequate. They have not done
so.
3. Federal Statutory AACWA Claim
Finally, the plaintiffs allege that the defendants failed
to provide a substantial number of class members with full
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individualized case plans, as required by the AACWA.16 The AACWA,
part of the Social Security Act, is a grant of federal funding for
expenses associated with operating a foster care system. Connor
B., 771 F. Supp. 2d at 168. In order to obtain the funding, the
state must submit a plan for the operation of its foster care
system and receive approval from the Secretary of Health and Human
Services (HHS). Suter v. Artist M., 503 U.S. 347, 351 (1992),
superseded by statute on other grounds, 42 U.S.C. § 1320a-2. One
required component of such a plan is that states must develop a
case plan "for each child receiving foster care maintenance
payments." Connor B., 985 F. Supp. 2d at 155 (quoting 42 U.S.C.
§ 671(a)(16)) (internal quotation mark omitted). A case plan is a
written document that must include the child's records and
information about the plans for the child, such as the prospective
placement, the services the child will receive, and the steps taken
toward stability and eventual permanency. 42 U.S.C. § 675(1). The
district court held, and the defendants do not contest here, that
the AACWA creates a privately enforceable right. Connor B., 771 F.
Supp. 2d at 168-172 (citing Lynch v. Dukakis, 719 F.2d 504, 510-11
(1st Cir. 1983)).17
16
The plaintiffs do not appeal the district court's denial of
their claim that the defendants failed to make adequate foster care
maintenance payments under the AACWA. See Connor B., 985 F. Supp.
2d at 165-66.
17
The parties dispute whether DCF must strictly comply with
the AACWA, or merely substantially comply with it.
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The AACWA is also enforced by the Secretary of HHS, who
is empowered to withhold federal funding if the state fails to
comply substantially with the statutory requirements and fails to
implement a corrective plan. Sam M. ex rel. Elliott v. Chafee, 800
F. Supp. 2d 363, 388 (D.R.I. 2011) (citing 42 U.S.C. § 1320a-2a).
The Secretary has chosen not to take such action here. No one in
this case wants the Secretary to cut off the roughly $60 million
Massachusetts receives from HHS. See Administration for Children
and Families, FY 2013 ACF Justification of Estimates for
Appropriations Committee at 337 (identifying Massachusetts's actual
foster care funding from FY 2011 at slightly above $60 million).
The district court denied the claim that the AACWA had
been violated as to the class. That court cited evidence from the
plaintiffs that the files for 14.6% of children sampled from a
group entering foster care and 35.1% of children sampled from a
group in foster care for two years or more lacked case plans.
Connor B., 985 F. Supp. 2d at 155. Of those files that included
case plans, many were incomplete. Id. at 155-56. From this
evidence, the district court found that case plans "are generally
not well maintained and, in some cases, are entirely unavailable
for review." Id. at 166. It then concluded that these failures
constituted mere "gaps in record keeping," not "grave statutory
error," "particularly when viewed in the context of the financial
and administrative hardships that have been discussed above." Id.
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We understand the court to have drawn a distinction, in part,
between whether services were adequately provided and whether the
paperwork was done.
We agree with the district court that this record does
not show a class-wide failure to provide documentation in the form
of individualized case plans. The district court found that
between about 65% and 85% of children have individualized case
plans. Id. That case plans are "not well maintained and, in some
cases, . . . entirely unavailable for review," id., is not enough
to prove that DCF is out of compliance with the statute vis-à-vis
the class.
IV.
Having carefully heard and analyzed the evidence, the
district judge offered editorial comments about areas of DCF
deficiency which, while not unconstitutional, nonetheless warrant
attention from the legislative and executive branches.
We end where we started, directing these matters to the
attention of the state legislature and the Governor. The decision
of the district court is affirmed. No costs are awarded.
So ordered.
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Appendix A
Portions of the injunctive relief requested in the complaint:
e. Order appropriate remedial relief to ensure Defendants' future
compliance with their legal obligations to Plaintiff Children,
including, but not limited to, the following:
i. Caseloads. DCF shall establish and implement limits
on the caseloads of all case-carrying workers for
children in DCF placements and private agency placements
operating under contract with DCF. These caseload limits
shall be based on the standards for accreditation of
public child welfare agencies set by the Council on
Accreditation ("COA") and the professional standards set
by the Child Welfare League of America ("CWLA").
ii. Education/Training. DCF shall develop and implement
educational qualifications and a mandatory comprehensive
pre-service and in-service training program for
caseworkers and supervisors based on standards for
acceptable management of a child welfare system;
iii. Availability of Necessary Resources for the
Placement of Children and Services for Children and
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Parents. An assessment shall be conducted by qualified
professionals to determine the need for additional
services and placements, including the need for family
preservation services, foster and adoptive placements
(including placements for children with disabilities or
other behavioral needs), wraparound services,
reunification services, independent living services, and
medical, dental, and mental health services, for children
in foster care throughout the state; and the time period
during which these placements and services will be
developed. Defendants shall take the steps necessary to
develop these services and placements according to the
assessment and the time frames it provides;
iv. Monitoring the Safety of Children in Placement. DCF
workers shall visit all children in placement and their
foster parents as frequently as set forth in the
standards set by the COA and the CWLA in order to ensure
that the children are safe.
DCF shall also comply with the standards and processes
required under Massachusetts law for the approval,
screening, oversight and utilization of all placement
types that house foster children;
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v. Child-Parent and Sibling Visitation. DCF shall
develop and implement policies providing for adequate
visitation between parents and children of those parents
removed into foster care and siblings one or more of whom
has been removed into foster care; Defendants shall
develop and implement policies, which adequately provide
for siblings being placed together in foster care and in
adoptive or guardianship settings where those permanency
goals are achieved;
vi. Case and Service Planning. DCF shall take necessary
action to provide adequate and timely case plans and case
reviews for children and adequate and timely services
plans for their parents.
vii. Quality Assurance/Data. DCF shall ensure that it
has a quality assurance ("QA") system consistent with the
standards of the COA and CWLA that is capable of
measuring the quality of services provided to children in
DCF custody;
viii. Contract Monitoring and Performance-Based
Monitoring. DCF shall ensure that an adequately staffed
and trained contract monitoring unit is created within
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the state's central office for purposes of overseeing and
managing the purchased services of the agency; DCF shall
develop and implement a performance-based contracting
scheme with its private foster care providers to ensure
the protection of children;
ix. Foster Care Maintenance Rates. DCF shall determine
and pay foster care reimbursement rates that fully meet
the elements set forth in 42 U.S.C section 675(4)(A);
x. Monitoring/Enforcement. The provisions of the Court
order entered pursuant to Fed. R. Civ. P. 65(d) shall be
monitored by a neutral expert monitor appointed by the
Court. In addition, the Court shall have continuing
jurisdiction to oversee compliance with that order.
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