Gary W. v. State of La.

• Decision Date: 02 December 1976
• Docket Number: Civ. A. No. 74-2412.
• Citation: 437 F. Supp. 1209
• Parties: GARY W. et al. v. STATE OF LOUISIANA et al.
• Court: U.S. District Court — Eastern District of Louisiana

437 F. Supp. 1209

GARY W. et al. v. STATE OF LOUISIANA et al.

Civ. A. No. 74-2412.

United States District Court, E. D. Louisiana.

July 26, 1976.

Supplemental Reasons for Order October 28, 1976.

Order with Respect to Children in Texas Institutions December 2, 1976.

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William E. Rittenberg, New Orleans, La., Steve Berzon, Daniel Yohalem, Washington, D. C., for plaintiffs.

Susan G. Daniel, Geneviene Holm, Thomas R. Sheran, Louis M. Thrasher, Washington, D. C., for intervenor.

Robert Funderburk, Jr., Baton Rouge, La., James P. Dore, Plaquemine, La., Chester E. Darnell, Houston, Tex., J. Carlisle DeHay, Jr., Dallas, Tex., Ronald K. Gurley, Louis M. Jones, New Orleans, La., Clarence F. Kendall, II, Houston, Tex., John Rienstra, Beaumont, Tex., James P. Screen, New Orleans, La., James J. Thornton, Jr., Shreveport, La., Cynthia Anne Wegmann, John D. Wogan, New Orleans, La., for defendants.

Supplemental Reasons for Court's Order October 28, 1976.

ALVIN B. RUBIN, District Judge.

This class action comprises as plaintiffs all mentally retarded, emotionally disturbed, and other children from Louisiana who have been placed in Texas institutions either by direct action of the State of Louisiana or with financial support from the state. The plaintiffs contend that conditions in the Texas institutions violate their constitutional rights, that they have not been accorded the treatment due them under the constitution and applicable federal statutes, and, further, that the mere fact of their placement in out-of-state facilities is itself a denial of adequate treatment and therefore violates their federal statutory and constitutional rights. The plaintiffs seek their return to Louisiana and basic changes in their treatment.

The case reached trial after two years of intensive preparation. Over 47,000 pages of exhibits were introduced or referred to: over 3300 pages of testimonial depositions were introduced; and the trial occupied eleven days. The testimony of eighteen expert witnesses and sixteen fact witnesses was taken. Eighteen lawyers participated in the trial. Voluminous briefs have been filed, before and after the trial. After this annealment, there is serious dispute about only a few factual issues; however, there remains basic controversy regarding the medical, psychological and psychiatric theories that should govern state action and the constitutional and statutory issues.

I. THE CHILDREN AND THE INSTITUTIONS

The children who are plaintiffs have widely differing characteristics. Some are normal children who have been abandoned by their parents; some are normally intelligent but socially delinquent; some are emotionally disturbed; some are mentally retarded; and some are physically handicapped in varying degrees. Many of the children suffer from a combination of afflictions; for example a single child may suffer from physical disability, emotional disturbance and mental retardation. Some children in their teens are hydrocephalic, have never been toilet trained, are unable to walk and have IQ's under 20. The characteristics all the plaintiffs share are that all are children from Louisiana; all are in Texas institutions; and the State of Louisiana has played some part in their placement.

Louisiana has two state agencies that carry out its policies in the matters involved in this suit. Both are in the Louisiana Health and Human Resources Administration (LHHRA). One is the Division of Family Services (DFS), which has the temporary custody of children who have been abandoned, adjudged neglected or delinquent by juvenile courts, surrendered into DFS custody, or whose parents have contracted for services with the DFS.¹ The second is called the Exceptional Children's Act Program (ECA); ECA provides funds to pay wholly for, or to assist parents in paying for, the care of children placed in institutions. Some of the children in the ECA program are placed pursuant to the order of a Louisiana state court; most are placed by their parents with financial assistance and various degrees of guidance from ECA. In many instances, parents find it no longer possible to care for these unfortunate children in their own homes because of the emotional, physical and financial demands of home care and the stress placed on other children by the presence of a disturbed or handicapped child in the home. Beset with these problems and their own emotional interactions, they implore state authorities for assistance.

Louisiana has several institutions and a number of other facilities designed to care for children under DFS and ECA programs. Some children are placed in Louisiana State institutions designed to care for mentally retarded or emotionally disturbed persons; some are placed in foster homes; some are placed in non-profit eleemosynary facilities operated by philanthropic or religious organizations; some remain at home and receive special out-patient care or education. But all the Louisiana facilities, public and private, together do not presently have enough space to care for all the Louisiana children who are considered by state authorities or by the children's parents to need residence elsewhere than in their family homes. Each of the state institutions has a long waiting list. The plaintiffs contend that placement of any child in an institution except as a temporary expedient deprives him per se of his federal constitutional and statutory rights. Pretermitting this, if the present program of institutional care were to be expanded to provide facilities for all Louisiana children whom their parents or state agencies deem in need of institutional care, the state would need three years or more to construct the required buildings in addition to a substantial amount of money for capital outlay. Therefore, for many years, DFS and ECA children have been placed in out-of-state institutions, a number of them in facilities located in Texas.

Children placed in Texas institutions are permitted to return home for visits at Christmas and during the summer school vacation period. Because of their own major physical and other problems, some children never return home for such visits. Others have no real home to return to. Even in cases where the child has parents interested in his welfare, it is difficult for the parent to visit the child at other times. Most of the institutions are a considerable distance from their homes. Working parents may lack funds and time to make visits. ECA has no funds to pay for parental visits. Nor are the children placed in Texas institutions visited by their case workers. The Texas institutions are licensed by the State of Texas; Louisiana authorities make no regular physical visits to or inspections of Texas institutions.²

There is much closer contact between LHHRA and the facilities in Louisiana. It has full licensing reports and studies on each institution. Many of its case workers and institutional counselors have visited these institutions, and none of the children are placed without a preplacement interview of the child and his family.

In February, 1976, a total of 1869 children were placed by the ECA program. 1373 were located in Louisiana. 275 were in Texas. 221 were in other states. This is considerably less than the total placed in Texas in prior years, 326 in April 1975, 354 in April 1974, and 402 in April 1973. But the total number of children placed in institutions in states other than Texas and Louisiana has increased. Thus, while the number of children placed in Texas has been reduced, the number placed in other states has increased by approximately the same amount, and the total number of Louisiana children placed out of the state has remained constant. Meanwhile the total number of children in the program has increased; it has almost doubled since April 1973, and the number placed in Louisiana facilities has risen in the same period from 497 to 1373.

In 1975, DFS placed 181 children in Texas institutions; 11 children in institutions in other states; and 523 in Louisiana facilities.

II. CONSTITUTIONAL AND STATUTORY ISSUES RELATIVE TO CHILD PLACEMENT

A. The Parties' Positions

The "DFS children" and the "ECA children" placed pursuant to a court order are obviously in state custody. The state contends that a majority of the ECA children are placed voluntarily by their parents. The United States, which has become a plaintiff-intervenor, contends with the plaintiffs that the action of these parents is only nominally voluntary: the parents do not have access to Louisiana institutions; they are beset by personal and financial problems as a result of having an unusual child in their homes; they are not able adequately to care for and treat the children in their homes; the state provides financial aid to them, and usually supplies the only information the parents have about available facilities;³ and, in some instances, juvenile courts have required they make such placements or risk the loss of custody of their children through a juvenile court proceeding. The children have no opportunity to object to being placed in an institution, either in Texas or Louisiana. Therefore, plaintiffs and the United States both assert, the children are in fact placed in Texas by the state not by their parents acting of their own free will.

Standing on the premise that all of the children are in state custody, and hence have like rights, plaintiffs and plaintiff-intervenors urge that the state must provide each child with treatment. The primary objective of institutional treatment must be the reintegration of the children into their families and home communities. If a child has no biological family or lacks one willing to receive him, the state is required to provide a substitute family. Unless this family, natural or of the heart, is involved in the treatment and life of the child, it is impossible or at best difficult for the child to be reintegrated into home...