Lashawn A v. Fenty

• Decision Date: 05 April 2010
• Docket Number: Civil No. 89-1754 (TFH).
• Citation: 701 F.Supp.2d 84
• Parties: LaSHAWN A., by her next friend, Evelyn MOORE, et al., Plaintiffs,v.Adrian M. FENTY, as Mayor of the District of Columbia, et al., Defendants.
• Court: U.S. District Court — District of Columbia

701 F.Supp.2d 84

LaSHAWN A., by her next friend, Evelyn MOORE, et al., Plaintiffs,v.Adrian M. FENTY, as Mayor of the District of Columbia, et al., Defendants.

Civil No. 89-1754 (TFH).

United States District Court District of Columbia.

April 5, 2010.

COPYRIGHT MATERIAL OMITTED

Arthur B. Spitzer, American Civil Liberties Union, Washington, DC, Erik S. Pitchal, Jeremiah Frei-Pearson, Marcia Robinson Lowry, Michael Sara Bartosz, Childrens Rights, New York, NY, for Plaintiffs.

Natalie Frazier Allen, Richard S. Love, Office of Corporation Counsel Office of the Solicitor General, Robert C. Utiger, DC Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

Pending before the Court are the plaintiffs' Renewed Motion for a Finding of Civil Contempt[Dkt. No. 910], the defendants' Motion to Establish a Definitive Timeline for Termination of the Consent Decree (“Termination Motion”)[Dkt. No. 914], and the defendants' Motion to Modify Court Order Provisions Requiring that the Court Monitor Approve, or Authorizing Her to Impose or Write, the District of Columbia's Plans, Policies, or Strategies (“Monitor Motion”)[Dkt. No. 924].After hearing oral arguments on these motions and considering the parties' briefs and the relevant evidence in the voluminous record of this case, the Court will grant in part and deny in part the plaintiffs' motion, deny the defendants' Termination Motion, and grant in part and deny in part the plaintiffs' Monitor Motion for the reasons set forth below.

I. BACKGROUNDA.Events Leading to Liability and Consent Decree

In 1989, the plaintiffs brought this class action against the mayor and other District of Columbia officials on behalf of children who depend on the District's child welfare system, including its foster care system, alleging numerous violations of state and federal laws.¹After hearing two weeks of testimony, this Court“determined that, due to inept management and the indifference of the mayor's administration, ‘the District had failed to comply with reasonable professional standards in almost every area of its child welfare system.’ ”LaShawn A. v. Barry,144 F.3d 847, 849(D.C.Cir.1998)(quotingLaShawn A. v. Dixon,762 F.Supp. 959, 998(D.D.C.1991)).The Court found “widespread and systematic deficiencies” that caused emotional and physical harm to children in foster care as well as children who were not in the District's custody but who were the subject of inadequately addressed reports of neglect.LaShawn A.,762 F.Supp. at 983-86.It is not necessary to recite these troubling findings in greater detail here-suffice it to say that the Court concluded that the District's child welfare system complied with neither “federal law, District law, nor, for those plaintiffs in the District's foster care, the United States Constitution.”Id. at 960-61.Accordingly, the defendant officials were held liable for the District's federal, local, and Fifth Amendment violations.Although the District reserved the right to appeal that ruling, the parties worked out a proposed consent decree ² to correct the myriad deficiencies in the District's child welfare system.This proposal was approved and adopted by the Court as a Remedial Order on August 27, 1991[Dkt. No. 145].This Remedial Order inter alia, appointed the Center for the Study of Social Policy as a Court Monitor.Since then, the Court Monitor has kept the Court apprised of the District's progress and related developments.The Monitor has also has also assisted the parties with negotiations of proposed consent orders and implementation plans.

B.Appellate Findings and Instructions

The District appealed, arguing that this Court overstepped its bounds by reaching the plaintiffs' federal statutory and constitutional claims.A panel of the Court of Appeals for the District of Columbia Circuit held that a private right of action existed under the District's Prevention of Child Abuse and Neglect Act, such that it “provided an independent basis for supporting the district court's judgment.”³LaShawn A. v. Kelly,990 F.2d 1319, 1325(D.C.Cir.1993)(“ LaShawn I ”).“Accordingly, rather than reach the difficult constitutional and federal statutory questions, the LaShawn I panel remanded the case‘with instructions to fashion an equally comprehensive order based entirely on District of Columbia law, if possible.’ ”LaShawn A. v. Barry,87 F.3d 1389, 1392(D.C.Cir.1996)(quotingLaShawn I,990 F.2d at 1325).Consequently, this Court entered an 84-page Modified Final Order (“MFO”) based on local law, which was virtually identical to the original order.LaShawn A. v. Kelly,No. 89-1754(D.D.C.Jan. 27, 1994).The District again appealed, arguing that the MFO unlawfully “imposes requirements beyond those of District law.”LaShawn A. v. Barry,No. 94-7044, 1996 U.S.App. LEXIS 30536, 1996 WL 679301(D.C.Cir.Oct. 30, 1996).Reasoning “that District law is not materially less demanding than federal law,” the D.C. Circuit affirmed this Court's judgment.⁴Id.Soon thereafter, the Court adopted an implementation plan, developed by the Court Monitor and the parties, which provided steps toward compliance with the MFO.

C.Implementation of the Judgment: Receiverships

While pursuing appeals, the District failed to comply with the Remedial Order.Therefore, in November 1994, this Court appointed three limited receivers to manage the child welfare system's protective services, resource development, and corrective action functions.These receivers reported a “severe level of dysfunction” and concluded that the scope of their authority was insufficient to successfully implement the remedial order.LaShawn A. v. Kelly,887 F.Supp. 297, 313(D.D.C.1995).Concurrently, the District was faced with a financial crisis.SeeLaShawn A. v. Barry,144 F.3d 847, 850-51(D.C.Cir.1998).Concerned that looming cost-cutting measures “would seriously undermine the receivers' efforts to implement the consent decree,”the Court exempted certain staff members from such measures and adopted the receivers' work plans.Id.(citation omitted).

In May 1995, after finding pervasive areas of noncompliance and missed deadlines, the Court held the defendants in contempt and placed the child welfare system into general receivership.On appeal, the D.C. Circuit, concerned with the breadth of authority granted to the general receiver, remanded with instructions to “only authorize the Receiver to violate local law in those instances where, considering other alternatives, [the Court] specifically concludes an override is necessary to enforce the terms of the consent decree.”Id. at 854.And, if it so concludes, “identify the specific federal law ground it is using as justification for the Receiver's authority to transcend local law.”Id. at 855.Such measures proved unnecessary, and, in October 2000, the parties agreed to a consent order setting forth requirements to end the receivership.Citing compliance with these requirements and the District's overall improvement, the Court ended the receivership as of July 2001, subject to a probationary period.

D. Post-Receivership Implementation & Compliance

The probationary period ended in 2003 with the entry of an implementation plan (“IP”) designed to bring the District into full compliance with the MFO.The defendants raised concerns with the outcome measures described in the IP.The IP was later amended, revised, and ultimately submitted for approval pursuant to a joint motion of the parties.This “Amended Implementation Plan”(“AIP”), which describes various outcomes to be achieved by the end of 2008, was adopted by the Court on February 27, 2007, shortly after Mayor Fenty took office.Progress was observed and maintained in many areas from 2003 to 2007, although the Court Monitor expressed concern that performance in several areas had “reached a plateau.”SeeCt. Monitor Report, March 21, 2008 4-5[Dkt. No. 990].Then, things took a turn for the worse.

On January 9, 2008, Banita Jacks' four daughters, known to the District's Child and Family Services Agency(“CFSA”) by virtue of reports of suspected abuse or neglect in 2006 and 2007, were found dead in their home in the District's Eighth Ward.SeeOffice of the Inspector General, District of Columbia, OIGNo. 09-I-0029Report of Special Evaluation: Interaction Between an At-Risk Family, District Agencies, and Other Service Providers (2005-2008)(April 2009)[Dkt. No. 1010].Due to media attention resulting from this horrific and demoralizing discovery, calls to the District's child abuse and neglect hotline increased dramatically.Ct. Monitor Report, March 21, 2008.CFSA became overwhelmed, and the parties developed a six-month plan to stabilize the foundering agency.According to the Court Monitor, the parties also agreed to extend the compliance date for AIP outcomes to June 30, 2009.Id.Making matters worse, the agency's Director resigned in July 2008.Shortly thereafter, the plaintiffs filed a motion for a finding of civil contempt, alleging deteriorating performance and complaining of the defendants' failure to develop an acceptable strategy.The parties reached a temporary resolution, and the Court entered a Stipulated Order, holding the motion in abeyance, enumerating several reform efforts and consultation requirements, and requiring the defendants to produce a “strategy plan” for the 2009 calendar year.Stipulated Order, Oct. 7, 2008[Dkt. No. 899].

Citing the Court Monitor's dissatisfaction with the defendants' proposed plan, the plaintiffs renewed their contempt motion in January 2009, adding allegations of noncompliance with the Stipulated Order.The following month, the defendants filed a Motion to Establish a Definitive Timeline for Termination of the Consent Decree, followed in March by a related Motion to Modify Court Order Provisions Requiring that the Court Monitor Approve, or Authorizing Her to Impose or Write, the District of...