M.D. v. Perry, CIVIL ACTION NO. 2:11-CV-84

CourtU.S. District Court — Southern District of Texas
Writing for the CourtJanis Graham Jack
PartiesM.D.; bnf STUKENBERG, et al, Plaintiffs, v. RICK PERRY, et al, Defendants.
Decision Date27 August 2013
Docket NumberCIVIL ACTION NO. 2:11-CV-84

M.D.; bnf STUKENBERG, et al, Plaintiffs,
v.
RICK PERRY, et al, Defendants.

CIVIL ACTION NO. 2:11-CV-84

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

SIGNED and ORDERED: August 27, 2013


ORDER

Before the Court is Plaintiffs' Motion for Class Certification and Appointment of Class Council. (D.E. 160). Plaintiffs have asked the Court to certify one General Class and four subclasses. Also currently before the Court is Defendants' Motion for Partial Summary Judgment on the claims of named plaintiffs D.I., S.R.,1 M.R., and J.R., Plaintiffs' Motion for Leave to File a Fourth Amended Complaint, and Plaintiffs' Motion for Leave to File Reply in Support of that motion. (D.E. 199; 205; 212). For the reasons stated below, Plaintiffs' Motion for Class Certification is GRANTED in part and DENIED in part. Defendants' Motion for Partial Summary Judgment is DENIED as moot. Plaintiffs' Motion for Leave to File Reply in Support of Motion for Leave to File a Fourth Amended Complaint and Motion for Leave to File a Fourth Amended Complaint are GRANTED.

I. Jurisdiction

Plaintiffs bring their claims under 42 U.S.C. § 1983. (D.E. 179 at 7). This Court hence has subject matter jurisdiction over this case per 28 U.S.C. § 1331.

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II. Background

A. Procedural History

Plaintiffs are minor children in the custody of the Texas Department of Family and Protective Services ("DFPS"). They are all in DFPS's Permanent Managing Conservatorship ("PMC"). On March 29, 2011 Plaintiffs filed suit through their next friends against Rick Perry, Governor of Texas, Thomas Suehs, Executive Commissioner of the Health and Human Services Commission of the State of Texas, and Anne Heiligenstein, Commissioner of the Department of Family and Protective Services of the State of Texas (collectively, "Defendants"), in their official capacities.2 (D.E. 1). On April 5, 2011 Plaintiffs filed a Motion for Class Certification. The Court granted their motion on June 2, 2011, holding that the requirements of Federal Rules of Civil Procedure Rule 23 had been met. (D.E. 49). Defendants appealed to the Fifth Circuit Court of Appeals pursuant to Rule 23(f). (D.E. 63). On March 23, 2012 the Fifth Circuit vacated the class certification order and remanded the case to this Court for proceedings in light of the intervening Supreme Court ruling in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). M.D. ex rel. Stuckenberg v. Perry, 675 F.3d 832 (5th Cir. 2012) ("MD"). Plaintiffs filed a second motion to certify the class on October 5, 2012. (D.E. 160).

B. Factual Background

When the Child Protective Services ("CPS") division of DFPS determines a child has been maltreated or is at risk and should not remain in her home it removes the child and petitions a court for Temporary Managing Conservatorship ("TMC") over the child. If TMC is granted,

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DFPS takes custody of the child and attempts to achieve reunification or, if this is not possible, place the child with a new, permanent family. TMC lasts one year unless a court orders that it be extended another six months. If at the termination of TMC the child has not been reunified or placed in a new family the child is transferred to the PMC. The child remains in the State's PMC until he or she is adopted, custody is otherwise transferred, or they age out of the system. (D.E. 179 at 1-2). There are roughly 12,000 children in the PMC at a given time. (D.E. 195 at 18).

Children in the PMC are placed in a variety of different settings. Many of these placements are managed by private child placing agencies ("CPAs") that contract with the State. DFPS also directly places some children in homes and residential facilities. In both cases the Residential Child Care Licensing ("RCCL") division of DFPS has the ultimate responsibility for inspections and investigations of placements, as well as licensing and monitoring CPAs. Foster family homes are traditional foster homes and contain fewer than 7 children. They are verified and the caregivers receive training and financial support. The verification process involves screening the home and conducting a variety of inspections to ensure the placement meets the requirements related to the type of care it will provide. (PX 50 at 204). Foster group homes contain 7 to 12 children but are otherwise almost identical to foster family homes. (PX 390 at 2). They are regulated, receive financial support, but are not required to have nighttime awake supervision. (PX 50). Facilities that contain 13 or more children are termed General Residential Operations ("GROs"). They are licensed by the RCCL, subject to extensive regulations, and receive financial support. (PX 49). Presently, GROs have capacities ranging from 13 to 437 residents. (PX 302). Residential Treatment Centers ("RTCs") are a type of GRO that provide specialized treatment. (PX 390 at 2).

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Texas also utilizes kinship placements. These are placements with someone who is related to the child or has a longstanding and significant relationship with the child or her family. All kinship placements must be approved by DFPS and have a home assessment. (PX 406 at 4). Kinship placements can be either verified or unverified. If verified, they undergo the same licensing requirements as a foster family home, the caregivers have the same training requirements as foster parents, and the homes receive the same financial assistance as foster homes. If they are unverified, then they are only eligible for limited monetary assistance and the caregivers are not required to complete the training provided for foster parents. (D.E. 179 at 2; PX 406 at 4).

C. Plaintiffs' Claims

Plaintiffs generally allege that "Texas policies and practices result in structural deficiencies that put all children who are or will be in the State's PMC at an unacceptable risk of harm." (D.E. 179 at 2). Plaintiffs assert two counts in their Third Amended Complaint and ask the Court to certify a General Class and four subclasses. Count I alleges a violation of Fourteenth Amendment substantive due process rights to adequate care and a safe, secure, and suitable placement while in State custody. Count II alleges a violation of the First, Ninth, and Fourteenth Amendment rights to family integrity of the members of the putative Licensed Foster Care Subclass. (D.E. 179 at 8, 20). In each of their claims Plaintiffs assert that there is some structural deficiency that constitutes a policy or practice of Defendants that violates class members' constitutional rights.

On behalf of all children in the PMC, Plaintiffs bring a class action alleging that the State's policies and practices deprive class members of their right to be free from an

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unreasonable risk of harm, including psychological harm, which the State owes them by virtue of its decision to take them into its custody. Plaintiffs allege that DFPS has a practice of overburdening caseworkers with excessive workloads. Because of this practice, caseworkers are unable to fulfill their duties, putting class members at risk as caseworkers are critical to maintaining a foster child's safety and well-being. Caseworkers simply do not have the time and resources to adequately monitor a child to ensure that her living conditions are safe. Plaintiffs allege, as well, that the overburdened caseworkers lead to a greater number of placement moves, which can inflict psychological harm on class members. On behalf of one subclass they claim that the State fails to exercise sufficient oversight over the residences foster care children are placed in. They also claim that the State maintains an insufficient array of placements, so that class members must either be placed in residences ill-suited to their needs or be uprooted and relocated considerable distances. Plaintiffs claim that Texas' practices of placing children in the foster group homes described above and of placing children who need only basic child care services in GROs violate their respective subclass' Fourteenth Amendment rights.

In the course of this litigation Plaintiffs' claims have changed substantially. In their original Complaint, (D.E. 1), Plaintiffs alleged a variety of problems with Texas' management of foster care and claimed that the State's mismanagement violated the rights of children in the PMC. In vacating the original certification of the class, the Fifth Circuit expressed doubt as to whether Plaintiffs could "advance a due process claim based on a bare finding that Texas has 'organized or managed' DFPS improperly." MD, 675 F.3d at 841 n.3. Moreover, the Fifth Circuit noted that the original Complaint aggregated a number of individual claims into one "super-claim" on behalf of the class. Id. at 844. In response, Plaintiffs have proposed several subclasses and changed their allegations.

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D. Named Plaintiffs

Named plaintiff M.D. was removed from her home because she was neglected by her mother and had been abandoned by her father. (D.E. 1 at 6). At the age of 10 she was placed with her relatives, but was then removed from that home when her cousin sexually assaulted her. (PX 27 at DFPS #28240 (filed under seal)). After the incident, M.D.'s relatives decided that they could not care for her, and she was placed in the State's custody. Id. at DFPS #28544. Since then, M.D. has been placed in a number of institutional facilities due to her therapeutic needs. These placements have involved moving M.D. far from her home community, her siblings (who are not in foster care), and necessitated repeatedly enrolling her in new schools. Id. at DFPS #28382, DFPS #28394, DFPS #28394. While placed in an RTC M.D. walked to a nearby retail establishment where she was raped. (D.E. 1 at 6). There have also been several reports that M.D. has been subjected to sexual abuse or misconduct while in the State's custody. (PX 27 at 1 RFP 1 RCCL 00725, 1 RFP 1 RCCL 00863, 1 RFP 1 RCCL 00872-74, 1 RFP 1 RCCL 00009 (filed under seal)).

Since being placed in Texas' PMC,...

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