M. D. ex rel. Stukenberg v. Abbott

• Decision Date: 18 October 2018
• Docket Number: No. 18-40057,18-40057
• Citation: 907 F.3d 237
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

907 F.3d 237

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.

No. 18-40057

United States Court of Appeals, Fifth Circuit.

FILED October 18, 2018

Richard Paul Yetter, Dori Kornfeld Goldman, Lonny Jacob Hoffman, Reagan William Simpson, Esq., Christian J. Ward, Attorney, Yetter Coleman, L.L.P., Houston, TX, Michael Kenneth Bartosz, Sara Michelle Bartosz, Senior Counsel, Stephen Andrew Dixon, Esq., Christina Wilson Remlin, Children's Rights, Incorporated, New York, NY, Marcia Lowry, A Better Childhood, Chappaqua, NY, Barry Frank McNeil, Esq., Haynes & Boone, L.L.P., Dallas, TX, for Plaintiffs - Appellees.

Kyle Douglas Hawkins, Joseph David Hughes, Assistant Solicitor General, Office of the Attorney General, Office of the Solicitor General, Scott A. Keller, Solicitor, Philip Lionberger, Office of the Solicitor General for the State of Texas, Thomas A. Albright, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Defendants - Appellants.

Tara Sharee Grigg Garlinghouse, Foster Care Advocacy Center, Houston, TX, Brian D. East, Senior Attorney, Disability Rights Texas, Central Texas Regional Office, Austin, TX, for Amicus Curiae Disability Rights Texas.

Richard Phillips Hogan, Jr., Hogan & Hogan, Houston, TX, for Amicus Curiae National Association of Social Workers Texas Chapter.

Noel Terry Adams, Jr., Akerman, L.L.P., Houston, TX, for Amicus Curiae National Association of Counsel for Children.

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 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 Services¹ 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 permanency² 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.

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 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 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 documents such as medical assessments and birth...