R.C. v. Nachman

• Decision Date: 16 June 1997
• Docket Number: Civil Action No. 88-D-1170-N.
• Citation: 969 F.Supp. 682
• Parties: R.C., by his next friend, the ALABAMA DISABILITIES ADVOCACY PROGRAM, on behalf of himself and those similarly situated, Plaintiffs, v. Martha NACHMAN, Commissioner of the Alabama Department of Human Resources, Defendant.
• Court: U.S. District Court — Middle District of Alabama

969 F.Supp. 682

R.C., by his next friend, the ALABAMA DISABILITIES ADVOCACY PROGRAM, on behalf of himself and those similarly situated, Plaintiffs, v. Martha NACHMAN, Commissioner of the Alabama Department of Human Resources, Defendant.

Civil Action No. 88-D-1170-N.

United States District Court, M.D. Alabama, Northern Division.

June 16, 1997.

COPYRIGHT MATERIAL OMITTED

Ralph S. Tyler, Patrick J. Reynolds, Hogan & Hartson, Baltimore, MD, Ira A. Burnim, Bazelon Ctr. for Mental Health Law, Washington, DC, David Schoen, James Tucker, ACLU of Alabama, Richard Cohen, Southern Poverty Law Center, Montgomery, AL, for plaintiffs.

John J. Park, Jr., Deputy Attorney General, Kathy P. Brasfield, Assistant Attorney General, Dept. of Human Resources, Mark G. Montiel, Montgomery, AL, for defendant.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the Court is defendant's "motion to vacate or modify the consent decree" filed July 29, 1996. Plaintiffs filed a memorandum in opposition on September 16, 1996. On May 6, 1997, the Court heard oral argument on defendant's motion.

BACKGROUND

Plaintiff R.C.¹ commenced this action by filing a three count complaint on November 15, 1988, against Andy Hornsby, then-Commissioner of the Alabama Department of Human Resources ("DHR"). R.C. subsequently amended his complaint to add a fourth cause of action and to add "class" allegations.

In his complaint, R.C. painted a picture of a child welfare system gone awry and illustrated the dramatic impact of that system on his life. R.C. initially entered this system when a family court, responding to allegations that R.C. was abused by his mother, placed R.C. under the supervision of DHR and in the custody of his father. Subsequently, allegations were made that R.C.'s father was neglecting him. Without attempting to provide services or support to R.C. or his father, DHR removed R.C. from his father's custody and placed him in a psychiatric hospital.

Although R.C. was emotionally disturbed and, as a result, sometimes behaved inappropriately, he was never diagnosed as psychotic or seriously emotionally ill. After less than a month at the psychiatric hospital, R.C. was discharged and transferred to the psychiatric unit of a second hospital. While at this second hospital, R.C. was given large doses of psychoactive medications. R.C.'s stay at the second hospital lasted approximately a month and a half, whereupon R.C. was transferred to a home for children. R.C. remained at this home for only six days. R.C. was then returned to the psychiatric unit of the second hospital and was again medicated with large doses of psychoactive drugs.

R.C. remained in the second hospital for nearly six months. He was then transferred to a home for children who are psychotic or suffer serious behavioral disorders. This home was located over two hundred miles from R.C.'s parents' residences, making regular contact between R.C. and his parents very difficult. R.C. continued to reside in this home through the time the complaint was filed. Throughout these placements, R.C. maintains that he was not given appropriate treatment or services. As a result, R.C.'s emotional condition significantly deteriorated.

R.C.'s four-count complaint contained two constitutional claims and two statutory claims. First, R.C. claimed that the defendant impinged his right to be free from unwarranted governmental interference with his family. Second, R.C. asserted that defendant violated his constitutional right to receive adequate care and treatment while in defendant's custody. Third, R.C. alleged that defendant failed to comply with obligations imposed on DHR by the Adoptions Assistance and Child Welfare Act ("AACWA"), 42 U.S.C. 601 et seq. Finally, R.C. asserted that defendant's conduct violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.²

Defendant moved to dismiss R.C.'s claims. On April 19, 1989, the Honorable Joel F. Dubina, then a district judge and to whom this case was originally assigned, denied defendant's motion, finding that each of R.C.'s claims was viable. The Court then considered R.C.'s petition for class certification. On July 26, 1989, the Court found that R.C.'s petition was due to be granted and certified a class consisting of "all children in the custody, or who may in the future be in the custody, of the Alabama Department of Human Resources who are behaviorally disordered or emotionally disturbed and who have suffered violations of their federal statutory or constitutional rights." By order dated July 12, 1990, the Court refined the class definition to include children in foster care or DHR custody who fit any one of the following descriptions:

(1) The child has been diagnosed as being emotionally disturbed or as having a behavioral disorder;

(2) Although the child has not been formally diagnosed emotionally disturbed, DHR or the facility in which the child resides considers the child to be emotionally disturbed;

(3) The child has been adjudicated a delinquent (4) The child is receiving special education as an EC (emotionally conflicted) child;

(5) The child is residing in any [specified facility];

(6) Although the child has not been formally diagnosed as having a behavioral disorder, the child is considered to have a behavior disorder by DHR or the facility in which the child resides. A child has a "behavior disorder" if DHR or the facility considers the child to fit in any one of the following descriptions:

(i) the child has persistent behavior problems; (ii) the child commits significant rule infractions; (iii) the child persistently absents himself from his placement without permission or runs away; (iv) the child commits actions that if committed by adults would be crimes; (v) the child engages in aggressive behavior that places the child or others at risk of injury; (vi) the child engages in self-injurious behavior; (vii) the child is residing in a facility operated or certified by the Alabama Department of Mental Health and Mental Retardation, and the child has been placed in the facility for reasons other than the child's mental retardation; (viii) the child is residing in a facility operated or licensed by the Alabama Department of Youth Services; or (ix) the child has been identified by DHR as having behavior problems. Such children may be emotionally disturbed, mentally retarded, or otherwise developmentally disabled. On the other hand, they may suffer from no handicap other than their behavior disorder.

(7) The child is considered by a foster home or the child's own home to be in need of evaluation to determine whether the child is emotionally disturbed or has a behavior disorder as described in (6) above.

As the case neared trial, the parties began engaging in serious settlement negotiations. A consent decree was drafted by plaintiffs and given to defendant for consideration. Defendant's attorneys and staff reviewed the consent decree. What followed were several weeks of intense negotiations during which the decree was significantly refined.

Before the consent decree could be presented to the Court, it had to be approved by Commissioner Hornsby, then-Attorney General Jimmy Evans, and, by implication, then-Governor Guy Hunt. The decree was presented to Commissioner Hornsby after extensive review by DHR staff, attorneys, and legal counsel. Those reviewing the decree included Bill Prendergast, Chief Legal Counsel for DHR, P.L. Corley, DHR's Deputy Commissioner for Fiscal and Administrative Services, Paul Vincent, Director of DHR's Family and Children Services, Norma Manush, Assistant Director of DHR's Family and Children Services, Sharon Ficquette, Assistant Attorney General for DHR, James E. Long, Assistant Attorney General for DHR, David Christy, Assistant Attorney General, H.E. "Chip" Nix, Jr., a privately practicing attorney leading DHR's defense and Chip Vercelli, an additional attorney defending DHR. Of the reviewers, only Chip Vercelli voiced any serious disagreement with the decree. See "File Memorandum" of James E. Long dated May 2, 1991, attached to def.'s motion.

To assist Governor Hunt, Commissioner Hornsby and Attorney-General Evans in the decision making process, DHR's lead defense attorney, H.E. Nix, Jr., Esq., provided Commissioner Hornsby with a point-by-point "won and lost" chart detailing the reasons for endorsing the decree rather than proceeding to trial. See May 14, 1991 letter from H.E. Nix, Jr. to Commissioner Hornsby attached to def.'s motion. According to Mr. Nix, the case, if tried, posed "a clear victory for the plaintiffs." Mr. Nix expressed his concern that the facts which would come out at trial would be "devastating" and "would dispose the court against DHR in future hearings." Under the consent decree, Mr. Nix asserted that DHR would maintain control of the Foster Care System and have greater autonomy than if the case were tried. Finally, Mr. Nix pointed out that endorsing the consent decree would result in a substantial monetary savings to defendant. Commissioner Hornsby, Attorney General Evans and Governor Hunt agreed that the consent decree best protected DHR's and the State's interests and endorsed the decree.

On June 11, 1991, the Court conditionally approved the consent decree pending notice to the class and a hearing on the fairness and adequacy of the decree. The plaintiff class in the decree differed from the plaintiff class previously certified by the Court. The class in the decree was defined as follows:

7. The `plaintiff class' is all children who are now, or in the future will be, children in foster care and/or DHR custody who have emotional or behavioral disorders. The class consists of the following children:

a. Children with severe emotional or behavioral problems who are in foster care and/or DHR custody, or who are at imminent risk of placement into foster care and/or DHR custody. DHR shall promulgate a definition, acceptable to the parties, of ...