Case: 18-40057 Document: 00515024789 Page: 1 Date Filed: 07/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 8, 2019
No. 18-40057
Lyle W. Cayce
Clerk
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
Appeals from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
This case returns to us after a limited remand. After our opinion in M.D.
by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237 (5th Cir. 2018), the
district court was tasked with modifying its injunction remedying certain
constitutional deficiencies in Texas’s foster-care system. The State now asks
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us to vacate many of the modified injunction’s provisions. For the following
reasons, the modified injunction is affirmed in part, affirmed with modification
in part, and vacated in part.
I.
This case’s underlying facts are thoroughly laid out in Stukenberg I, 907
F.3d at 243–47. In short, this case is about the constitutionality of Texas’s
foster-care system. Plaintiffs are a certified class of minor children in the
permanent management conservatorship (PMC) of the Department of Family
Protective Services (DFPS). We previously found that DFPS’s policies violated
Plaintiffs’ substantive-due-process rights in two ways: (1) by maintaining
overburdened caseworkers who are responsible for the children in the PMC;
and (2) by failing to adequately monitor and oversee the children in the
licensed foster care (LFC) subclass. Id. at 256–68. But we reversed the district
court’s other two liability findings. Id. at 268–70. We did not believe that
DFPS’s placement array or the foster group homes—in and of themselves—
created a constitutionally cognizable harm to the children. Id.
Based on these findings, we evaluated the district court’s extensive
injunction, which mandated dozens of specific remedial measures. Id. at 271–
87. We noted that an injunction must be narrowly tailored to cure the specific
constitutional violations at issue and must not go beyond what is “minimally
required” to bring the State into constitutional compliance. Id. at 272. With
this standard in mind, we validated and invalidated many of the injunction’s
specific provisions. Id. at 271–87. We concluded by remanding the case to
modify the permanent injunction “consistent with this opinion.” Id. at 288. The
remand was a limited one. Id.
After Stukenberg I issued, the district court promptly requested briefing
on how to comply with Stukenberg I. And in November 2018, the district court
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issued the modified injunction. The State now appeals, unhappy with the
district court’s revisions.
II.
Whether a modified injunction comports with a remand order is reviewed
de novo. See Ball v. LeBlanc, 881 F.3d 346, 350–51 (5th Cir. 2018). The district
court must “implement both the letter and the spirit of the appellate court’s
mandate and . . . not disregard the explicit directives of that court.” United
States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). It cannot reopen issues
expressly or implicitly decided by the appellate court. Gene & Gene, LLC v.
BioPay, LLC, 624 F.3d 698, 702 (5th Cir. 2010).
At the same time, the grant of a permanent injunction is reviewed for an
abuse of discretion. Stukenberg I, 907 F.3d at 248.
III.
The State argues that many of the modified injunction’s provisions are
improper, either because they are inconsistent with Stukenberg I, are outside
the scope of the limited remand, or are substantively problematic. The specific
provisions at issue are: (1) the 24-hour-supervision provisions; (2) the face-to-
face-meeting provision; (3) the workload-study provisions; (4) the integrated-
computer-system provisions; (5) the missing-medical-records provision; (6) the
Monitor provisions; and (7) the termination provisions. We take them in that
order.
A.
In its 2015 liability opinion, the district court prohibited the State from
placing children in “foster group homes that lack 24-hour awake-night
supervision.” We did not disturb that ruling in Stukenberg I. On remand, the
district court expanded the supervision requirement to apply to all PMC
placements housing more than six children. The State urges that this
expansion improperly exceeds the scope of the limited remand.
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In making this argument, the State misconstrues ODonnell v. Goodhart
(ODonnell II), where this court considered whether a modified injunction
dealing with Texas’s bail system complied with the mandate rule. 900 F.3d 220
(5th Cir. 2018). In a previous case, we had vacated the original preliminary
injunction over the bail system and remanded so that the district court could
“craft a revised injunction—one that is narrowly tailored to cure the
constitutional deficiencies the district court properly identified.” ODonnell v.
Harris Cty. (ODonnell I), 892 F.3d 147, 166–67 (5th Cir. 2018). In ODonnell II,
this court found that a particular provision fell “outside the confines of [the]
narrow remand” because it addressed a problem not “originally identified” by
the district court. 900 F.3d at 225. This court continued: “Remand is not the
time to bring new issues that could have been raised initially.” Id.
Such is not the case here. In Stukenberg I, we recognized that the 24-
hour-supervision requirement had remedied the “most egregious” problem
with the foster group homes: a “lack of adequate supervision.” 907 F.3d 237,
270. The district court’s original injunction addressed that violation, albeit in
an overbroad manner. Indeed, we invalidated the original provision
prohibiting “any family-like placement that houses more than six children”
because we failed to see why—absent the supervision problems—the
conditions in the foster group homes unconstitutionally amplified the risk of
harm to the children. Id. at 270, 282. In contrast, rather than outright banning
placements housing more than six children, the modified injunction simply
requires 24-hour-supervision. In doing so, it hews more closely to the violation
identified in Stukenberg I: the lack of proper supervision. Thus, this case is
unlike ODonnell II, as the district court has not attempted to rectify a newly
identified problem.
In addition to its primary argument, the State also notes that the
modified injunction’s 24-hour-supervision requirement would apply not only to
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LFC placements but also to unlicensed placements, such as kinship placements
in which a child is placed with a relative. This would be problematic. Plaintiffs
do not object to modifying the requirement to clarify that it applies only to LFC
placements. So we do exactly that. The 24-hour-supervision requirement is
affirmed with the modification that it applies only to LFC placements, not
unlicensed placements.
B.
In Stukenberg I, we invalidated many “caseload-specific injunction
provisions.” 907 F.3d at 274. We did so because they “exceed[ed] what [was]
required to achieve constitutional compliance or [did] not directly address the
problems giving rise to the caseload management violation.” Id. Among the
provisions struck down for these reasons was one prohibiting DFPS from using
I-See-You (ISY) workers. 1 Id.
Despite our elimination of this provision, the district court reinserted a
similar one in the modified injunction. The injunction now requires that all
monthly face-to-face meetings with the PMC children be conducted by primary
caseworkers, not ISY workers. The State argues that the new provision is a
reincarnation of the invalidated one banning the use of ISY workers. While
nominally allowing ISY workers to exist, the new face-to-face provision
eliminates their primary responsibility. Thus, the State argues that it is
inconsistent with Stukenberg I.
In response, Plaintiffs exclaim that the face-to-face provision is one of
the modified injunction’s most important. On their account, it “directly
addresses the fundamental problems with the State’s existing practices with
regard to secondary caseworkers.” They then spill much ink pointing out the
1 ISY workers are secondary caseworkers who help the primary caseworkers. 907 F.3d
at 245. They do so mainly by conducting in-home visits and confirming that the child “is still
there.” Id.
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deficiencies of ISY workers when it comes to conducting face-to-face visits with
the PMC children and the virtues of requiring primary caseworkers (who have
more training and experience) to conduct all face-to-face visits.
While Plaintiffs are correct that the State’s use of ISY workers has many
problems, their argument fails to acknowledge that we did not find those
problems constitutionally suspect in Stukenberg I. We discussed the
insufficiency of ISY workers solely to show that DFPS’s use of them did not
show a reasonable effort to alleviate the substantial risks associated with
overburdened primary caseworkers. 907 F.3d at 262–63. It was the crushing
workload on primary caseworkers—not ISY workers’ face-to-face visits—that
we held violated Plaintiffs’ substantive-due-process rights. Id. at 264–65. And
it is in relation to that violation that the district court was supposed to revise
the injunction.
With this violation in mind, the modified injunction’s face-to-face
provision cannot stand. Imposing on primary caseworkers the additional duty
of conducting all face-to-face visits no more “directly address[es] the problems
giving rise to the caseload management violation” than does the invalidated
provision eliminating ISY workers. Id. at 274. In fact, it would likely increase
their workload. It appears that this provision was the district court’s well-
intentioned attempt to fix the problems with ISY workers’ face-to-face visits.
But eliminating those problems was not what the district court was charged
with doing on remand.
The face-to-face provision is vacated as being inconsistent with
Stukenberg I.
C.
The first time around, we struck down the caseload caps on primary
caseworkers and the Residential Child Care Licensing (RCCL) investigators,
but we also made clear that DFPS should “determine how many cases, on
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average, caseworkers” and RCCL investigators can safely manage and should
then establish internal guidelines for caseload ranges. Stukenberg I, 907 F.3d
at 274, 279. On remand, the district court implemented this recommendation
by ordering DFPS to conduct workload studies as to both types of workers. Yet
it did not leave the studies’ planning and execution solely in the hands of
DFPS. Instead, it stated that “DFPS, in consultation with and under
supervision of the Monitors, shall propose [workload studies]” at which point
the court would “convene a hearing to review the proposal[s].”
The State contends that by requiring the workload studies to be done
under the Monitors’ and the court’s supervision, the district court deviated
from Stukenberg I’s instructions. The Stukenberg I opinion makes clear, the
State says, that DFPS should be able to determine—all on its own—how many
cases, on average, caseworkers and RCCL investigators can safely carry.
We reject the State’s argument. The district court undoubtedly has the
equitable power to oversee compliance with its own injunction. The supervision
requirement over the workload studies simply makes explicit that implicit
power. We do not read Stukenberg I as forbidding the court from exercising
control and supervision over the workload studies—especially when the State
has a history of conducting them inadequately. See 907 F.3d at 261. Moreover,
despite the supervision and input from the Monitors and the district court,
DFPS will still be involved in designing and conducting the workload studies,
and reaching conclusions from them. All this is to say, the district court’s
supervision requirement is faithful to the spirit of Stukenberg I and does not
do clear violence to its letter. 2 See Lee, 358 F.3d at 321 (noting that the district
2 The State also complains that it is impossible to design and conduct the studies
within the 60-day timeframe the district court imposed. Should that be the case, the State
can always move for an extension, which the court should generously consider.
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court must “implement both the letter and the spirit of the appellate court’s
mandate”).
D.
Next, we turn to the integrated-computer-system requirement. We
previously upheld the original injunction’s provision demanding the creation
of an “integrated computer system” containing the PMC children’s “complete
records, including but not limited to a complete migration of all medical,
dental, educational, placement recommendations, court records, mental health
and caseworker records.” Stukenberg I, 907 F.3d at 282–83. The district court
reincorporated this provision into the modified injunction and also included a
provision giving all relevant personnel access to the complete records in the
integrated computer system. 3
The State does not deny that the district court faithfully adhered to
Stukenberg I by reincorporating these provisions. Nor could it. Rather, it seeks
to reargue on the merits that the integrated-computer-system requirement
should be invalidated because it is unprecedented, tremendously expensive,
and maybe even impossible to accomplish.
We treat the State’s request as a quasi-motion for reconsideration on this
issue. 4 And after careful review, we see that our initial decision upholding the
integrated computer system was erroneous. It is inconsistent with the broader
3 In Stukenberg I, we did not expressly validate the requirement that all personnel
have access to the complete records. We inadvertently listed the provision creating the
computer system twice, instead of listing the accompanying access provision. 907 F.3d 282–
83. No one disputes that Stukenberg I intended to validate the access provision as well.
4 We can do so because the mandate has not issued in Stukenberg I; the remand was
limited, and we retained jurisdiction. But by saying the mandate never issued, we do not
mean to suggest that the district court was free to disregard Stukenberg I. It was not.
Consequently, it is appropriate—as we have done throughout this opinion—to use the
mandate rule (technically not quite on point) to evaluate the district court’s compliance with
Stukenberg I. We hold only that we, as the appellate panel that issued Stukenberg I, can
reconsider our own prior holdings after a limited remand when the mandate never issued.
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remedial principles we laid out in Stukenberg I. The multimillion-dollar
computer-system overhaul—while maybe a best practice—goes well beyond
what is minimally required to remedy the caseload and oversight violations.
Indeed, we find it (just like the caseload cap) to be “too blunt a remedy for a
complex problem.” 907 F.3d at 274. An integrated computer system, which at
most two other States use, cannot represent the constitutional floor for record-
keeping.
Accordingly, we now invalidate the integrated-computer-system
requirement and the accompanying access provision. The goal is a
constitutionally effective foster-care program, not a specific kind of computer
system used to help achieve that goal.
E.
Invoking our expressed validation of the integrated computer system,
the district court ordered DFPS on remand “to address and remediate missing
and nonexistent medical and mental health care records.” According to the
district court, a comprehensive computer system “would not be effective for
preventing an unreasonable risk of serious harm if medical records were
missing or nonexistent.” Because we have invalidated the integrated computer
system, there is no longer a justification for this provision. Therefore, it is
vacated as well.
F.
Next up are the Monitor provisions. The original injunction contained 13
provisions appointing and listing the Monitors’ duties. We did not address
those provisions in Stukenberg I. The modified injunction includes those 13
original provisions plus 3 new ones. The new provisions (1) give the Monitors
remote access to the electronic systems DFPS uses to store data about the PMC
children, (2) compel DFPS to “supply the Monitors [with] raw data relevant to
the 2015–2016 workstudy conducted by DFPS” and all the available data
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“relevant to all previous third-party studies,” and (3) command the State to
pay the Monitors. The State lodges both procedural and substantive attacks
against these provisions.
On the procedural side, the State argues that the limited remand is not
the time to impose new requirements that could have been included in the
original permanent injunction. For support, the State again draws on
ODonnell II. But once more it is distinguishable. The problematic injunctive
provision in ODonnell II was substantive. It attempted to remedy a
constitutional deficiency the original injunction did not identify. 900 F.3d 220
at 225. The Monitor provisions, on the other hand, are administrative. They do
not attempt to solve a new constitutional puzzle originally left unaddressed by
the district court; they simply represent the district court’s revised attempt to
ensure that the State fixes the constitutional problems it identified (and we
affirmed) in the original injunction.
As the State’s procedural argument is unavailing, we now turn to its
substantive objections, which concern the remote access and third-party data. 5
First, the State argues that the new provision providing the “Monitors,
their staff[,] and consultants with unrestricted, routine and ongoing remote
access” to DFPS’s electronic systems is a serious confidentiality risk and could
result in the inadvertent alteration or destruction of vital records. The State is
primarily concerned with giving such unrestricted access to the staff and
consultants without requiring them to keep the information confidential. As
the State correctly points out, they may not be qualified to handle such
sensitive information. The district court’s failure to address these legitimate
confidentiality concerns was an abuse of discretion. So while we affirm the
5The State has no substantive complaints about the provision compelling it to
compensate the Monitors.
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remote-access provision, we modify the injunction to require that any of the
Monitors’ staff and consultants who have unrestricted, remote access to
DFPS’s systems be qualified to handle the information (including screening for
criminal history), be taught how to use the systems, and be given
confidentiality agreements to sign.
Second, the State argues that requiring DFPS to turn over “all available
raw data relevant to all previous third-party studies” is overly burdensome,
wasteful, and has no conceivable benefit. Plaintiffs do not contest this point in
their brief. And we agree that requiring the State to turn over this data was
an abuse of discretion. The district court made no findings justifying such an
expensive and time-consuming production. Nor did it state what the purpose
of doing so would be. We vacate the injunctive provision dealing with the
previous third-party studies. This vacatur does not apply to the data relevant
to the 2015–2016 workstudy to which the State has no objection.
G.
Finally, the State objects to the modified injunction’s termination
provisions. These same provisions were in the original injunction, yet we heard
nothing from the State about them in the original appeal. The State cannot
now challenge these provisions. It is too late for that. The State’s arguments
are waived. See Med. Ctr. Pharmacy v Holder, 634 F.3d 830, 834 (5th Cir. 2011)
(“The waiver doctrine bars consideration of an issue that a party could have
raised in an earlier appeal in the case.” (quotation omitted)).
IV.
As an administrative matter, Plaintiffs would like the stay lifted in full.
We decline to do so, and the stay will remain in place until the final mandate
issues.
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* * *
For the foregoing reasons, we AFFIRM in part, AFFIRM with
MODIFICATION in part, and VACATE in part. The case is remanded to the
district court to begin implementing, without further changes, the modified
injunction with the alterations we have made.
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PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting as to parts III.D
and III.E, and otherwise concurring.
I cannot join the majority’s continued erasing of relief carefully
constructed by the district court to remedy DFPS’s recognized constitutional
violations. 1 With this agency the devil is in the details, and the district court
structured a remedy with particularized provisions, responsive to its detailed
factual findings and focused study by its appointed Special Masters. This panel
unanimously upheld several important and strong directives, but the majority
simultaneously removed others that were essential to remediating the State’s
deliberate indifference. In doing so, the majority did not engage the district
court’s detailed factual findings underlying its remedial relief. It rather
dispatched groups of provisions as superfluous and not narrowly tailored to the
constitutional wrong with no deference to those findings. 2
Today, I turn to the most recent of the majority’s excisions, affecting an
area of overarching importance: a records system, not a backwards-looking
retention of data, but rather a forward-looking process that would empower
enfeebled caseworkers and bring needed administrative transparency, serving
a role not unlike medical records in a hospital—a necessity. Indeed, with its
first myriad excisions of remedies targeting specific problems—not least
vacatur of the caseload cap requirement, addressing the core problem of
overloaded caseworkers—the majority left the record system in place, leaving
it to play an even greater role, one central to the remedy for the found
constitutional wrong. And now the majority strikes even the provisions for
creating an integrated record keeping process.
1 The attached Appendix sets out the previously excised remedial provisions, along
with the majority’s rationale for each removal. See Appendix, infra.
2 See M.D. by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237, 297–303 (5th Cir.
2018) (Higginbotham, J., concurring in part and dissenting in part).
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With respect, in vacating provisions ordering DFPS to create an
integrated computer system to rationalize record keeping for PMC children,
the majority completes its walk away from the district court’s interlaced
remedial scheme, taking away provisions essential to its success. Simply put,
these removed injunctive provisions would strike at DFPS’s administrative
chaos and inefficiency, problems at the heart of the agency’s failure to protect
the thousands of PMC children entrusted to its custody. Recognizing this, we
unanimously affirmed their inclusion in Stukenberg I. Nothing has changed in
law, fact, or argument, yet the majority vacates these provisions today, a
decision flawed by the evidence and controlling legal principles.
I.
The State did not previously challenge our decision in Stukenberg I. To
the contrary, we remanded “for modification [of the injunction] consistent with
th[e] opinion.” 3 On remand, determined to protect its earlier successful efforts
to strip many injunctive provisions in Stukenberg I, the State reminded the
district court that the scope of the remand was “narrow,” and that,
The Court should address only the language and
provisions in the Final Order that the Fifth Circuit
identified as requiring modification . . . adher[ing]
strictly to the Fifth Circuit’s directives and reasoning
when modifying the remedial provisions. . . . Issues or
arguments that are not expressly addressed in the
Fifth Circuit’s non-dispositive opinion are beyond the
scope of a limited remand.
Our remand order contemplated that these same limitations of scope
would apply to any further appeal from the remand, for the review would be
only of the district court’s modifications of the injunctive relief, that is, for
3 Id. at 288 (majority opinion).
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compliance with our remand order. So, when the State filed its notice of appeal,
we stayed implementation of the district court’s order, stating,
The district court’s original injunctive order
included provisions that were not challenged,
provisions that were challenged and upheld, and
provisions that were challenged and invalidated by
this court. Although the appellants’ brief has not yet
been filed, we assume that the issue on this new
appeal is whether the ordered modifications were
implemented.
The State then filed its brief urging error in the district court’s
implementation of our modifications. Consistent with its efforts to preserve its
earlier success, it had not objected to the integrated computer system
provisions in the district court on remand. Now, it timorously asks this court
to “reevaluat[e]” the integrated computer system provisions, tacking on a new
argument in six pages of a 55-page brief. At oral argument, the State’s counsel
concentrated on modification issues, only asking that we revisit the record-
keeping request with a nigh off-the-cuff contention that Stukenberg I had
demanded “best practices,” that, to counsel’s knowledge, no other state uses
such an integrated digital system. Plaintiffs’ counsel responded that at least
three other states have used integrated systems for years—with no argument
to the contrary from the State’s counsel in reply. 4 For example, in Tennessee,
4 Texas does not stand alone in currently facing litigation over its foster care system
based in part on deficient record-keeping. See Complaint at 59–61, McIntyre ex rel. M.B. v.
Colyer, No. 18-cv-2617 (D. Kan. Nov. 16, 2018), ECF No. 1 (describing data failures in
Kansas’s foster care system, including failure to adequately document children’s mental
health needs and information about monthly visits); First Amended Complaint at 29–34,
M.B. by Eggemeyer v. Tidball, No. 2:17-cv-4102-NKL (W.D. Mo. July 3, 2017), ECF No. 22
(describing the Missouri foster care system’s failure to maintain centralized medical records
for children in its care). Indeed, since the 1990s, courts have played a role in requiring states
to update their digital record-keeping in response to litigation over constitutional
inadequacies in their foster care systems. See Modified Final Order at 64–73, LaShawn A. by
Moore v. Dixon, No. 1:89-cv-01754-TFH (D.D.C. Nov. 18, 1993) (requiring a “unitary
computerized information system that will record and report information sufficient to permit
Department social workers and administrators to achieve compliance with relevant
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one of the states the plaintiffs named, a modernized digital records system has
contributed significantly to the turnaround in that state’s child welfare
system. 5 The majority, in a complete about-face, vacates the integrated
computer system provisions. This without a change in law or fact since the
filing of our opinion in Stukenberg I, and where the reexamination of these
provisions is plainly beyond the crafted scope of our remand order.
Limited remands play a useful, but restricted, role. We grant a limited
remand where we task a district court to answer a discrete question necessary
for resolution of an issue before us. We retain jurisdiction to enable a return
for resolution of those issues yet pending before us. 6 That is not this case.
Stukenberg I finally decided the issues before us on that appeal. It “remand[ed]
the permanent injunction for modification consistent with th[e] opinion,”
providing that “should either party seek appellate review following
modification of the injunction by the district court, the appeal will be assigned
to this panel.” 7 There was no supplemental finding the district court needed to
make or explanation to give for Stukenberg I to become final. If neither party
had appealed, the implementation of Stukenberg I—the only issue before the
provisions of District of Columbia law and with all the provisions of this Order”); Consent
Decree at 109–12, Juan F. by Lynch v. O’Neill, No. 2:89 CV 859 (SRU) (D. Conn. Jan 7, 1991),
ECF No. 90 (establishing a committee to develop a “single statewide networked computer
system” that would include case file information for each child).
5 See Kim Coleman & Jim Coleman, Years of System-Wide Reform Results in Massive
Turnaround for Tennessee’s Child Welfare System, HIGH GROUND NEWS (Aug. 9, 2017),
available at http://www.highgroundnews.com/features/HistoricRulingDCS.aspx.
6 See, e.g., United States v. Gomez, 905 F.3d 347, 354–56 (5th Cir. 2018) (granting a
limited remand for the district court to state whether it wished to modify its sentence given
Supreme Court authority it had not appeared to consider); Sultana Entm’t, L.L.C. v.
Gutierrez, 740 F. App’x 81, 82 (5th Cir. 2018) (per curiam) (for the district court to explain its
balancing of factors in dismissing a case for forum non conveniens); United States v. Cessa,
861 F.3d 121, 133 (5th Cir. 2017) (for the district court to make further findings on the
suppression and materiality elements of a Brady claim); United States v. Rocha, 164 F. App’x
481, 481 (5th Cir. 2006) (per curiam) (for the district court to make findings regarding how
to classify a defendant’s offense of conviction for sentencing purposes).
7 See Stukenberg I, 907 F.3d at 288.
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district court—would not have returned to this court. We did not intend to
retain jurisdiction over this case beyond the directive that any appeal promptly
lodged should be assigned to this panel.
The majority asserts that the mandate did not issue in Stukenberg
I, and it is free to treat the State’s arguments against the integrated computer
system provisions as a “quasi-motion for reconsideration.” Whatever that may
mean, even if the mandate did not issue—a matter of considerable
uncertainty—the State elected to put its substantial success in attacking the
district court’s order in its pocket, not to be revisited. It filed no petition for
rehearing with this court and carefully insisted upon the narrow issues the
remand order put before the district court. We have a settled process for
reconsideration of panel decisions before the mandate issues in the form of a
petition for panel rehearing. That process requires a litigant to “state with
particularity each point of law or fact that the petitioner believes the court has
overlooked or misapprehended.” 8 Concerns about timeliness aside, 9 the State
does not argue that Stukenberg I “overlooked” or “misapprehended” a point of
fact or law concerning the integrated computer system provisions. Nor can it.
The State’s initial argument against those provisions in Stukenberg I was only
a brief statement that the provisions were among several injunctive provisions
unsupported by expert testimony and an even more conclusory statement that
the plaintiffs have no constitutional right to an integrated computer system. It
is telling that the majority makes no effort to justify its decision to reconsider
beyond concluding that “after careful review,” it is convinced the relevant
8 FED. R. APP. PROC. 40(a)(2); see Boeta v. Fed. Aviation Admin., 736 F. App’x 453, 457
(5th Cir. 2018) (per curiam) (explaining that the proper mechanism for challenging a remand
directive is to petition for panel rehearing, not to appeal from an order on remand).
9 See, e.g., Uranga v. Davis, 893 F.3d 282, 286 n.20 (5th Cir. 2018) (declining to
consider a claim in a habeas litigant’s opening brief because it was essentially an untimely
attempt to seek reconsideration of the ruling on his motion for a certificate of appealability).
17
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portion of Stukenberg I was “erroneous.” The majority abuses Stukenberg I’s
mistaken label of a “limited remand.”
II.
The decision to vacate the integrated computer system provisions is
misguided. Each element of the injunction must be viewed not in isolation but
as a part of a broad “remedy with interacting parts, which as a totality
redresses the constitutional wrong, itself not a single act but a collection of
practices that together inflict injuries on PMC children.” 10
The integrated computer system provisions originate in the district
court’s years of study of DFPS, aided by the Special Masters. In its December
2015 liability opinion, the district court attributed PMC children’s epidemic of
physical and sexual abuse to, among other factors, DFPS’s organizational and
administrative chaos. 11 The court found the agency’s records “incredibly
disorganized,” 12 retained in numerous uncoordinated digital databases, as well
as in paper files located with children’s residences, placement agencies,
caseworker offices, and medical service providers. Records addressing abuse
and neglect investigations are maintained separately from case files, in a
database to which caseworkers do not always have access. 13 The court found
that DFPS’s “outdated” digital system “impede[s] caseworkers’ ability to
review important electronic case file information” because it is “not in sync
with current versions of forms that are used [by caseworkers]”—the
inconsistencies “force[] arbitrary workarounds and repetitive entry of data.” 14
10 Stukenberg I, 907 F.3d at 302 (Higginbotham, J., concurring in part and dissenting
in part).
11 M.D. v. Abbott, 152 F. Supp. 3d 684, 780 (S.D. Tex. 2015).
12 Id. at 781.
13 Id.
14 Id. (internal quotation marks omitted).
18
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The district court’s December 2015 liability opinion observed that
DFPS’s record keeping leaves caseworkers ignorant of children’s status, with
harmful results for the children. “[C]aseworkers continuously fail to maintain
complete, timely, and accurate documentation,” 15 generating “opportunities for
important safety-related tasks to fall through the cracks, especially when cases
are transferred between workers.” 16 Caseworkers—children’s “lifeline [and]
connection to everything” 17—spend nearly three quarters of their time in
administrative work, and only the remainder working with families and
children. 18 Even where a caseworker has time to care for a child, the
inaccessibility of information limits the help a caseworker can provide, for
example, where records leave caseworkers unaware that a child is a survivor
of sexual abuse. The situation of the plaintiff S.A., whose story opened my
opinion in Stukenberg I, is illustrative. It presents a narrative the district court
found representative of the ongoing failures in DFPS’s care for 12,000 PMC
children, an exercise we found to be the product of more than a decade of
deliberate indifference—a denial of fundamental constitutionally secured
rights. As related before, within four months of entering Texas’s foster care
system, S.A. made her first sexual abuse outcry. 19 In response, the State
requested an investigation by her private placement agency. But following the
investigation, the private placement agency retained the report and no copy
was deposited in DFPS’s casefile. 20 As a result “no subsequent caseworker
would have this information,” 21 meaning that S.A.’s caseworkers made
15 Id.
16 Id. (internal quotation marks omitted).
17 Id. at 776 (internal quotation marks omitted).
18 Id. at 780.
19 Id. at 731.
20 Id. at 732.
21 Id.
19
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decisions regarding her housing, medical care, education, and general physical
well-being while potentially uninformed of the life-changing trauma she
experienced under DFPS care. It was in this context that the opinion concluded
that “DFPS[’s] paperwork and electronic filing system . . . must become more
efficient [and each] child should have a readily accessible and organized case
file, comprised of all records pertaining to that child.” 22
Pursuant to the district court’s liability opinion, the court-appointed
Special Masters Kevin Ryan and Francis McGovern studied DFPS record-
keeping practices. In July 2016, the Special Masters reported DFPS’s
representations that the agency’s modernization of its IMPACT system was
close to unifying PMC children’s records, and that the agency was requesting
appropriations to complete this work. While the Special Masters recognized
this modernization effort may not completely address the district court’s
concerns regarding record-keeping, they were “encouraged that the State . . .
[wa]s on the right path here.” DFPS indicated that it was on track to report
the establishment of a centralized system by the Fall of 2016.
That hope was dashed, and in November 2016 the Special Masters
submitted recommendations to the district court, including that
DFPS submit a plan with specific timeframes,
subject to Court approval, to ensure that DFPS staff
and contractors working with PMC children have
access to all the case information they need to serve
children in one centralized place. . . . The DFPS plan
should ensure that DFPS caseworkers and supervisors
serving PMC children, as well as CASA staff and
volunteers . . . have access to an integrated, current,
complete, and accurate case record for PMC children
on their caseloads . . .
22 Id. at 825.
20
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In response, the State objected to every one of the Special Masters’
recommendations, including the integrated computer system provisions,
arguing they were “not . . . tailored to remediate a constitutional violation
because there is no reliable evidence that DFPS’s existing systems for
maintaining and accessing PMC children’s case records pose a substantial,
class-wide risk of depriving PMC children of personal security and reasonably
safe living conditions and no reliable evidence shows that adopting the Special
Masters’ recommendation will eliminate that purported constitutional harm.”
The State further “object[ed] because of the logistical challenges of
implementing the full recommendation,” stating:
It is not practical or fair to require third parties
such as [child placing agencies], who operate much
smaller businesses without the same level of IT
capabilities, to completely change their software to
match that of DFPS. DFPS depends on the highest
level quality [child placing agencies] and does not wish
to impose unnecessary disincentives on these often
small, faith-based, and/or non-profit organizations.
The State also objected on the grounds that the comingling of records
might compromise confidentiality and run afoul of, for example, federal laws
protecting substance-abuse treatment records.
Responding to this new impasse, in January 2017, the district court
entered an interim order addressing the Special Masters’ recommendations
and the State’s objections, determining that “[f]urther studies and
consultations between the Special Masters, the Court, and the State are
necessary before a final order can be entered.” Relevant here, the district court
ordered the Special Masters “to work with DFPS to create and submit to the
Court a plan for a comprehensive central databank for PMC children” and to
“report the progress of the central databank creation to the Court within three
months from the date of this Order.”
21
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In March 2017, following a status conference at which the parties and
Special Master discussed the “availability of records regarding medical, dental,
mental health, and educational issues,” DFPS agreed “to provide complete
responses to the Special Masters from its IT Department concerning the
modernization of the IMPACT system, including but not limited to the capacity
to include all the children’s records in one system.” In the following months the
Special Masters’ team corresponded and met with DFPS staff to discuss record
keeping and to test the existing systems by examining a random sample of
PMC children’s records. Through these tests, the Special Masters found that
health data and casefile records “did not align nearly half the time.” DFPS’s
healthcare vendor, Superior Healthcare, maintained children’s health records
in a database “not compatible with, or linked to” the DFPS’s casefile system.
Neither DFPS nor its vendor’s systems were capable of uploading and storing
documents such as birth certificates medical, dental, and psychological
evaluations. Instead, paper files were supposedly retained in the child’s
placement, private placement agencies, the caseworker’s office, schools, or
medical providers’ places of business. But when the Special Masters visited a
random sample of Foster Group Homes, they found that for many children
records that should have been maintained on site were not available for
inspection.
The Special Masters presented findings and proposed solutions in a
December 2017 final report to the court. This report corroborates the district
court’s observations:
DFPS maintains PMC children’s records among
numerous electronic and paper files, stored in
different locations and maintained by distinct
custodians. As the Court determined, the trial record,
including exhibits, revealed evidence of children’s
records missing information, containing incomplete
information and reflecting information that was
22
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inconsistent with information in other files. The
Special Masters’ examination of these case records
among the trial exhibits, and other children’s records
as described below, confirmed that PMC children’s
records are currently stored in different locations with
different custodians.
Based upon their examination, the Special Masters proposed that
“[w]ithin four months of the Court’s Final Order, DFPS . . . submit to the Court
a plan for an integrated computer system” including complete medical, dental,
educational, placement, court, mental-health and casefile records,
documentation of visits with service providers, with test results, treatment
plans, “and any other information necessary for the safety of the children.”
They recommended that the system be in place within a year of the district
court’s final order.
Objecting to the Special Master’s latest proposal, the State argued to the
district court that “there is no reliable evidence that DFPS’s existing systems
for maintaining and accessing PMC children’s case records pose a substantial,
class-wide risk of depriving PMC children of personal security and reasonably
safe living conditions.” Judge Jack disagreed. Quoting directly from her 2015
liability opinion, describing the Special Masters’ findings, and drawing upon
examples of several named plaintiffs, she overruled the objection:
Due to DFPS’s burdensome administrative
demands, such as filling out paperwork, [] caseworkers
are only able to spend 26% of their time with children.
. . . In its December 2015 Order, the Court noted it took
eleven uninterrupted workweeks to read the twenty
foster children’s case files that were in evidence[,] in
excess of 350,000 pages. Considering the dangerously
high turnover rate, this task must be duplicated
numerous times for each child, making it impossible
for caseworkers to have enough time to focus on the
children.
23
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The district court’s January 2018 Final Order adopts the Special
Masters’ proposed integrated computer system provisions, demanding a plan
from the State within four months, to be realized within one year.
Today, the majority vacates these provisions, stating only that there is
no constitutional right to an integrated computer system—of course, just as
there is no freestanding constitutionally secured right to be bused to school.
The question is not whether the Constitution guarantees a freestanding right
to an integrated computer system. Rather, it is whether the integrated
computer system provision is a necessary part of a remedy “narrowly tailor[ed]
. . . to remedy the specific action which gives rise to the order,” 23 here, Texas’s
constitutional wrongs. As with all exercises of equitable power, “the nature of
the violation determines the scope of the remedy.” 24 For compliance with the
command that an injunction be narrowly tailored, we look to the fit of ends and
means and to the factual matrix tying those ends and means. This matrix of
fact is before us, unchallenged, and in Stukenberg I we upheld the district
court’s integrated computer provisions as a remedial response to the found
constitutional wrongs.
The district court did not abuse its discretion by insisting that the
integrated computer system provisions directly address a cardinal element of
the constitutional wrong. 25 As we found in Stukenberg I, DFPS’s “records and
case files are outdated and woefully incomplete” 26 with information in such an
23 Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 586 (5th
Cir. 2013).
24 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971).
25 ODonnell v. Harris Cty., 892 F.3d 147, 155 (5th Cir. 2018) (“This court reviews a
district court’s grant of a preliminary injunction . . . for abuse of discretion. Findings of fact
are reviewed only for clear error; legal conclusions are subject to de novo review.” (internal
citations and quotation marks omitted)).
26 Stukenberg I, 907 F.3d at 260.
24
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“abysmal state” 27 that to find a record requires a “needle-in-a-haystack
search.” 28 To address this problem—and its role in DFPS’s constitutional
violations—“[a]n improved record-keeping practice w[ould] reduce
caseworkers’ overall workloads. It would also centralize and make accessible
data critical to making safe placement decisions. . . . [A]ccess to comprehensive
medical information, mental health records, and placement history for
individual children would assist [the agency] in making an informed
assessment about abuse allegations.” 29 We upheld provisions that will require
DFPS to identify child-on-child sexual abuse and to record confirmed
allegations of abuse and sexual aggression in a child’s casefile. 30 An integrated
digitized record system, together with these abuse-recording requirements,
would serve to ensure that information critical to each PMC child’s welfare is
available and accessible to that child’s caseworker, a precondition to the child’s
safety and care.
Caseworker access to a PMC child’s comprehensive record was made all
the more important by the majority’s vacatur of the caseload cap provisions.
The district court had originally included the integrated computer provisions
in a final order that also required that a PMC child’s caseworker handle no
more than 14 to 17 children’s cases at a time. The district court determined
this range was necessary based on the Child Welfare League of America’s
standard for minimum acceptable care, 31 as well as DFPS’s own Work
Measurement Study. 32 The majority vacated the caseload cap—a key element
27 Id. at 255 n.24.
28 Id.
29 Id. at 282.
30 See, e.g., id. at 278 (upholding provisions requiring DFPS to create a record of
confirmed allegations of sexual abuse involving a child as victim or aggressor).
31 See id. at 300 (Higginbotham, J., concurring in part and dissenting in part)
(discussing the district court’s reliance on CWLA standards).
32 See id. at 300–01.
25
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of the injunction—leaving DFPS instead to develop “internal standards” to
guide caseload distribution. The allowance was made in a situation in which
caseworkers are sometimes assigned 40 to 60 cases at a time, 33 and caseworker
positions turn over at 25 percent during the first year and 43 percent by the
end of the second. 34 Given how stretched caseworkers are in the absence of
caseload caps, and the centrality of their attention and care in a child’s care,
the district court’s insistence on integrated digital records was even more
important. Integrated digitized records would enable caseworkers to
concentrate on casework, that is, on children, as opposed to the administrative
tasks currently occupying nearly three quarters of their time.
Informational deficiencies play a large role in DFPS’s inability to protect
PMC children from abuse and neglect. The district court has so found on a full
record. It follows that an integrated computer system is no mere “best
practice.” It is an appropriate and necessary part of an injunction narrowly
tailored to address caseworker workloads and deficient monitoring. The
district court committed no abuse of discretion in adopting these provisions.
The majority only announces that it finds the order not narrowly tailored. It
refers to no less burdensome alternative—the State presented none. Against
the facts upon which we sustained a holding of deliberate indifference, that
conclusion is deeply flawed.
III.
The State’s principal objections are not to the provisions’ remedial role
but to claimed costs, for which it offers no evidence. It asserts that an
integrated computer system would entail a “Major Information Resource
Project,” requiring legislative approval before the commitment of appropriated
33 Id. at 257 (majority opinion).
34 Id.
26
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funds. Additionally, the State tells us, a new system would create a “logistical
nightmare,” requiring the burdens of “vendor solicitation, contract drafting,
and contract approval,” followed by design and software development, “data
migration and testing . . . to ensure functionality.” The State’s assertions of
infeasibility run against the implicit judgment of Special Master Kevin Ryan—
not only the former commissioner of New Jersey’s child welfare agency, but
also a monitor in the state of Michigan’s reform of its foster-care system and
advisor to Oklahoma and Mississippi on reforms of their foster-care systems.
The State’s pronouncements that DFPS’s informational shortcomings are
“inevitable” in “any state foster care system,” and that no other state has such
a system—are unsupported by the record. Plaintiffs point out that “at least
Washington, D.C., Tennessee, and New Jersey already use such integrated
digital record-keeping systems,” and have done so for years. The reality is that
the burdens the State puts forward are no more than part and parcel of its
neglect—of its deliberate indifference to the children in its charge; indifference
that created a nightmare for essential governance of its foster-care system. Its
engagement with the unchallenged reality is to challenge the district court’s
remedy as requiring “best practices.” These denials of constitutional right come
with their own answers. Best practices are not the handmaiden of deliberate
indifference.
There is no support for the majority’s position that an integrated
digitized records system would be prohibitively expensive. All we have to rely
upon are the conclusory statements of counsel. Counsel told the district court
that costs of the reform could approach $10 million, a figure that has increased
over tenfold on appeal to “hundreds of millions of dollars” in counsel’s Reply
Brief to this court. There is no record basis for any of these figures. These
protestations also omit important context, for example, that the agency
operates with over twelve thousand employees and a combined budget of $3.1
27
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billion over two years, 35 with roughly half of the State’s child-welfare agency
spending covered by federal funds, over $730 million in fiscal year 2016. 36 That
is, extending such figures over the past decade, a period during which the State
was deliberately indifferent to the rights of PMC children, its child-welfare
agency has spent billions of dollars from the federal treasury. The appropriate
time to raise bona fide concerns about cost would have been during the Special
Masters’ year of analysis and consultation for a record-keeping reform plan.
But the State did not detail costs then. Rather, it was reluctant to cooperate
further. As the district court stated in its Final Order,
Defendants have known about the Court’s
concerns with the IMPACT system since the Court
identified them over two years ago in its December
2015 Order. Despite this, Defendants have apparently
done little to prepare for eventual reforms. The Special
Master asked Defendants to assess and report the
time needed to improve IMPACT so that it could store
all of a child’s medical, dental, mental health,
educational, and court records. Defendants’ response
to each of these inquiries was “[n]ot applicable[.] DFPS
is not making such changes to the IMPACT system.”
Similarly, Defendants responded to the Special
Master’s request for a draft plan to achieve the Court’s
recordkeeping goals by stating “[n]ot applicable. Texas
is not developing such a plan.” Defendants now object,
fifteen days after the Plan was filed, that the Plan’s
timelines for these goals are “impossible.” Defendants
offer no explanation for why they were unable to
present the Special Master with the estimate they now
present the Court in their Objections, that it could
take $10 million and several years to reform IMPACT.
35 Edgar Walters, Pay Caseworkers and Fosters More, Chief Says, THE TEXAS TRIBUNE
(July 6, 2016).
36 See, e.g., CHILD TRENDS, Child Welfare Agency Spending in Texas at 1 (2018)
available at https://www.childtrends.org/wp-content/uploads/2018/12/Texas_SFY2016-
CWFS_12.13.2018.pdf (reporting that 47 percent of child-welfare agency spending in Texas
is covered by federal funds).
28
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Even now, Defendants offer no evidence in support of
this estimate.
Under these provisions the State retained the initiative to propose a plan
to unify digital records, but wholly failed to do so.
The integrated computer system provisions have an appropriate and
obvious place in the district court’s injunction, narrowly tailored to remedy
DFPS’s workload and oversight violations. That reforms deferred for decades
have become costly to undertake is not surprising. DFPS’s neglect and
indifference have allowed its problems to snowball. After years of litigation,
including a two-week bench trial and a year-long study by its appointed Special
Masters, the district court reached the judgment that DFPS requires
integrated digitized records for PMC children in order to remedy its
constitutional violations. The State’s unsupported assertions of
impracticability do not establish an abuse of the district court’s discretion, nor
does its naked assertion that the provisions were not necessary to remedy the
wrong, here little more than a recast contention that there was no wrong—no
failure of a constitutional dimension.
IV.
In sum, the majority’s vacatur of the integrated computer system
provisions strikes at the heart of a remedial order responding to the State’s
deliberate indifference to the welfare of 12,000 PMC children and the breach
of its constitutional command to tend to their care. The State has offered no
new circumstances or insights justifying a change in this court’s order—
nothing but a nigh casual, off-the-cuff statement by able counsel that such
systems are expensive and not deployed by other states, hence an imposition
of “best practices.” The State’s assertion regarding use in other states was
immediately contradicted at oral argument by opposing counsel, without
challenge.
29
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To counter the sting of deliberate indifference the State speaks of
hundreds of millions of dollars being turned towards the Texas foster care
system, yet its answer is only that a new system is too expensive, that with a
few patches it can make do with the present system—a stunning assertion that
ignores the obvious question: why then only now? We must keep ever in mind
the long-reaching consequences of this dysfunctional system. In fiscal year
2017, six years after this suit was filed, 38 TMC and PMC children died in
DFPS custody; 554 children spent two or more consecutive nights in hotels or
government office buildings; meanwhile, 352 caseworkers voluntarily ended
their employment with DFPS. Aside from the suffering of children within state
custody, as I described in Stukenberg I, 1,300 to 1,400 PMC children age out of
DFPS care every year. 37 These aged-out children “lack independent living
skills” and are unprepared for adult life; according to a witness who runs a
non-profit to help aged-out children, “[t]hey do not know how to answer a
phone, take or leave a message, cook a meal for themselves, or load a
dishwasher. They do not know how to fill out a job application, let alone drive
a car to get to work.” 38 Former foster youths suffer from post-traumatic stress
disorder at nearly five times the rate of the general population and nearly twice
the rate of United States combat veterans. 39 Around 27 percent of children
aging out of care end up in the criminal-justice system, and a third become
homeless. 40 Once homeless, one out of three will become involved in
prostitution; according to one amicus, “the Texas child welfare system is
effectively supplying the sex-trafficking industry with current and former
37 Stukenberg I, 907 F.3d at 292 (Higginbotham, J., concurring in part and dissenting
in part).
38 M.D., 152 F. Supp. 3d at 790.
39 Id.
40 Stukenberg I, 907 F.3d at 292 (Higginbotham, J., concurring in part and dissenting
in part).
30
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foster youth.” 41 Among female former-PMC children, 49 percent become
pregnant within a year of aging out; 70 percent of their children then enter the
same foster-care system. 42 The social cost of this unreformed system is
enormous. Looking past the loss of the forces of basic morality and fairness,
the dollar cost to the State entailed by this feedback into government custody
by its released charges must far exceed the cost of a sound system.
V.
The State’s view of narrow tailoring is transparent. Implicit in a failure
to narrowly tailor a remedy is an effective alternative. The facts in the record
and the State’s conduct before the district court make plain that its alternative
is to leave DFPS’s flawed record-keeping system in place. My colleagues
mistakenly only reward the State’s resistance to the orders of the United
States District Court.
Finally, the State’s approach to these efforts to protect the constitutional
rights of our children is now shot through with two rending realities. First, the
majority’s talismanic use of “best practices” betrays an anemic view of the
State’s constitutional duty to care for the children it takes into its charge. This
limpid cast places that duty nigh on a plane of state-owed duties to its convicts,
and is in sharp tension with our finding of deliberate indifference. 43 Indeed,
the majority has excised detailed remedial provisions addressing DFPS’s abject
failure to prepare children aging out of PMC custody for safe and productive
adult life, a denial of programs the likes of which are routinely afforded to
convicts before their reentrance to society. Again, the State’s obligation runs
41 Id. (quoting Brief of Disability Rights Texas as Amicus Curiae at 8).
42 Id.
43 See Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[P]rison officials have a duty . . .
to protect prisoners from violence at the hands of other prisoners. . . . [H]aving stripped them
of virtually every means of self-protection and foreclosed their access to outside aid, the
government and its officials are not free to let the state of nature take its course.”).
31
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not to some abstract universe of “foster-care children,” rather it runs to each of
these children as an individual. 44 At its core, this obligation must be larger
than food, shelter, and sojourns through a succession of public schools. When
the State deploys persons termed “I See You” workers to locate its charges it
exposes its failure to abide its constitutionally imposed duty. Second, that the
State’s fervor for potential life subsides when that potential is realized brings
puzzlement that would defy the genius of Fyodor Dostoevsky’s dissection of the
human psyche—in simultaneous pursuit of ends in conflict, each with the
other.
To these eyes, the State repairs to an unrecognizable view of our
federalism—one that elides its core. Federal law is also the State’s law, and
the federal court here arrives because the State has refused to fulfill its
constitutional duty, one owed to the 12,000 PMC children in its charge. Its
reflexive resistance to the federal district court’s remedial orders—both direct
confrontation and a refusal to cooperate or otherwise participate in the crafting
of a response—bespeaks a view of our federalism inverted to look past the
unchallenged finding of this court of the State’s deliberate indifference to the
constitutional rights of PMC children, in part a call to account given that half
its monies come from the federal treasury. One would think that the
presentation ought to be one of cooperative federalism. The State’s noble
enterprise to take custody of these children is being hollowed by bureaucratic
wrangling and ineptitude, a threatened stain on Texas—and a retreat by this
Stukenberg I, 907 F.3d at 302 (Higginbotham, J., concurring in part and dissenting
44
in part) (“Treating a child as an individual—protecting his or her identity as an individual—
has long been the concern of human rights conventions, a concern that also lies at the core of
the liberty guaranteed in the Fourteenth Amendment.”). This international concern is
captured in the poignant words “[t]he child . . . shall have the right from birth to a name.”
United Nations Convention on the Rights of the Child, arts. 7–8, 19, Nov. 20, 1989, 28 I.L.M.
1448.
32
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court, once a refuge for such innocents, ready to enforce federal law when a
state fails its obligation to do so, as it must.
Five years after the filing of this lawsuit, but soon after the district
court’s finding of deliberate indifference, the Governor appointed a new DFPS
commissioner to “overhaul[] a broken system” and address a “status quo” that
was “unacceptable.” 45 A commendable effort, but it now comes alone onto a
stage with lights dimmed by this court’s retreat, leaving as a lonely heuristic
this court’s finding that for more than a decade the State has been deliberately
indifferent to the rights of children in its custody. If the judiciary upholds this
walk away, the audience of the people remains—which for the sake of the
children hopefully will be a sufficient incentive to sustain and expand the late
arriving effort to more fully discharge the State’s duty, in this real world a hope
unlikely to be realized, as pointed out in my earlier dissent:
At least as early as 1996, DFPS was unmoved by
the first of the “twenty years of studies conducted or
commissioned by the State.” The administration of
Governor Perry returned to DFPS’s problems in 2010,
pointing out that the agency had still not fixed the
problems identified almost fifteen years earlier. Most
recently, the district court noticed the current
commissioner’s exhortations to reform at DFPS, and
his acknowledgments that, as yet, the agency was
overwhelmed: “our workers are outnumbered by the
opponent—child abuse and neglect.” In its Liability
Order, the district court observed that the State had
appointed its “seventh commissioner since 2004, each
of whom was surely ushered in with promises that this
time it will be different.” More than “[t]wo years and
45Edgar Walters, Abbott Names New Leaders at Embattled Child Welfare Agency, THE
TEXAS TRIBUNE (April 11, 2016). This Commissioner recently announced his resignation of
the post after three years heading DFPS. Edgar Walters, Texas Child Welfare Chief Hank
Whitman Announces Retirement, THE TEXAS TRIBUNE (May 28, 2019). Governor Abbott was
elected in 2014, three years after this suit was filed, following service as Texas’s attorney
general and as a Justice of the Supreme Court of Texas.
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one legislative session” after the liability
determination, the constitutional deprivations
remained unaddressed. The “foster care system of
Texas [was still] broken[.]” 46
It is to this history that my colleagues defer—in the name of federalism.
46 Stukenberg I, 907 F.3d at 298 (Higginbotham, J., concurring in part and dissenting
in part).
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APPENDIX:
Excised Injunctive Provision Majority’s Rationale
Caseload-Specific Provisions
Caseload-cap mandating a range of 14–17 The measure would exacerbate DFPS’s staffing
children per caseworker. Stukenberg I, 907 F.3d crisis in the short term, and, more broadly, is
at 273–74. “too blunt a remedy . . . beyond what [is]
minimally required” to remedy the
constitutional violation.” Id. at 274. Instead,
“DFPS absolutely should determine how many
cases, on average, caseworkers are able to
safely carry. Based on its determination, DFPS
should establish generally applicable, internal
caseload standards. . . . as a rough guide for
supervisors who are handling caseload
distribution, and they should inform DFPS’s
hiring goals.” Id. at 274.
Recruitment of new caseworkers. Id. The measure is “improper . . . either exceed[ing]
what is required to achieve constitutional
compliance or . . . not directly address[ing] the
problems giving rise to the caseload
management violation.” Id. Also, it potentially
“would unnecessarily add to the volume of work
for which caseworkers are responsible, and
would increase the time spent managing
paperwork and compliance and administrative
burdens.” Id.
Comprehensive training and competency Same as previous. Id. at 274.
examinations for new caseworkers. Id. at 275.
Same as previous. Id. at 274.
Monthly face-to-face meetings between
caseworkers and each child under their care. Id.
at 275.
Same as previous. Id. at 274.
Caseworker training on visitation policies. Id. at
275.
Same as previous. Id. at 274.
Quarterly reports on caseworker–child visits. Id.
at 275.
Same as previous. Id. at 274.
Adherence to agency contact guidelines,
including caseworker assessments of each child’s
safety and medical, mental-health, and
educational needs. Id. at 275.
Same as previous. Id. at 274.
Requirement that supervisors carry no caseload
of their own and oversee no more than seven
caseworkers. Id. at 275.
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Same as previous. Id. at 274.
Elimination of the use of “I See You” workers. Id.
at 275.
Monitoring and Oversight Provisions
Establishment of a statewide 24-hour hotline The measure “do[es] not address the discrete
accessible to PMC children to report and record issues underlying the violation: the manner in
calls concerning abuse and neglect. Id. at 279. which RCCL documents and investigates
allegations of abuse. To the extent that the court
is worried about underreporting, this can be
remedied by mandating that caseworkers
provide children with the appropriate point of
contact for reporting issues. The problem with
RCCL follow-up is sufficiently addressed by
other valid provisions.” Id.
Requirement that all foster homes maintain a Same as previous. Id.
landline phone accessible to children. Id.
Requirement that DFPS ensure PMC children The measure would “unnecessarily increase the
are able to access and use the 24-hour hotline. time spent managing administrative burdens.”
Id. at 280 Id. at 279.
Requirement that DFPS record all calls to the Same as previous. Id. at 279.
24-hour abuse and neglect hotline, and store the
recordings for two years. Id. at 280.
Requirement that foster caregivers report all Same as previous. Id. at 279.
allegations of child on child sexual abuse via the
24-hour hotline. Id. at 280.
Requirement that DFPS track referrals of child- Same as previous. Id. at 279.
on-child sexual abuse. Id. at 280.
Quarterly reports on all child-on-child abuse Same as previous. Id. at 279.
referrals made to the hotline that have been
assigned for investigation. Id. at 280.
Requirement that investigations of abuse and Same as previous. Id. at 279.
neglect in licensed placements are conducted by
staff with caseloads exclusively focused on
maltreatment investigations. Id. at 280.
The measure is “misguided for substantially the
Caseload cap of 14 cases for RCCL workers
same reasons that caseload caps are ill-advised
investigating abuse and placement licensing
in the primary caseworker context. Again,
requirements. Id. at 280–81.
however, it would be reasonable for the court to
require a comprehensive workload study and
the establishment of internal guidelines for
caseload ranges based on what DFPS
determines RCCL investigators can safely
manage.” Id. at 279.
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The measure is “not only unnecessary, but . . .
Disclosure of redacted licensing inspection
also implicates confidentiality concerns.” Id. at
reports, including the outcome of the inspection,
279.
violations, and the agency’s corrective actions
addressing the violations. Id. at 281.
“Crossover” Provisions
The measure is “improper” because it is
Requirement that each PMC child’s case file
“designed to remedy what the district court
include a current photograph of the child. Id. at
believed to be additional, related problems with
283.
the foster care system” and is “not calculated to
remedy an identified constitutional violation.”
Id. Additionally, it potentially would “only
increase caseworkers’ administrative burdens.”
Id.
Requirement that DFPS obtain a photo of each Same as previous. Id.
child within 48 hours of their entering PMC
custody. Id.
Same as previous. Id.
Requirement that DFPS ensure children under
three have photos updated at least semi-
annually. Id.
Same as previous. Id.
Requirement that DFPS ensure caseworkers
have proper training in photographing and
uploading pictures of children in their care to the
casefile system. Id.
Same as previous. Id.
Provision of a birth certificate and social security
card to each PMC child at the age of sixteen. Id.
Same as previous. Id. at 283.
Provision of educational and medical records to
each PMC child prior to their aging out of care.
Id. at 283–84
Same as previous. Id. at 283.
Identification by DFPS of PMC children aged 14
or older who have not received independent
living preparation services. Id. at 284.
Same as previous. Id. at 283.
Requirement that 14- and 15-year-old PMC
children receive the agency’s Preparation for
Adult Living services and that 14-year-olds
receive a life-skills assessment and transition
planning services, with accommodations for
disabled PMC children. Id. at 284.
Same as previous. Id. at 283.
Development of a plan for expungement of each
child’s eligible criminal or juvenile offense
records before the aging out of care. Id. at 284.
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Same as previous. Id. at 283.
Development of a plan for each child to access
benefits for which they are eligible upon aging
out. Id. at 285.
Same as previous. Id. at 283.
Provision of driver’s education to eligible PMC
children. Id. at 285.
Same as previous. Id. at 283.
Creation of email accounts for 14-year-old PMC
children for receipt of encrypted personal
documents and records. Id. at 285.
Same as previous. Id. at 283.
Appointment of an attorney ad litem for PMC
children unrepresented in pending cases. Id. at
285.
Same as previous. Id. at 283.
Development of a plan for reimbursement of
PMC children’s attorneys ad litem in those
courts that do not provide attorneys ad litem. Id.
at 285.
Same as previous. Id. at 283.
Training for caseworkers on child health. Id. at
285.
Same as previous. Id. at 283.
Requirement that DFPS make every effort to
obtain a child’s medical records within 24 hours
of the child entering DFPS custody. Id. at 285.
Same as previous. Id. at 283.
Provision of a “medical home” to provide
comprehensive and continuous medical care to
each PMC child. Id. at 285.
Same as previous. Id. at 283.
Annual developmental screenings for each PMC
child. Id. at 286.
Same as previous. Id. at 283.
Casefile system alerts notifying caseworkers of a
child’s scheduled medical screenings,
immunizations, and appointments. Id. at 286.
Same as previous. Id. at 283.
Regular caseworker verification of each child’s
health status. Id. at 286.
Same as previous. Id. at 283.
Prohibitions on placing unrelated children more
than three years apart in age or in different
service levels in the same room. Id. at 286–87.
Same as previous. Id. at 283.
Prohibition on housing children in DFPS offices.
Id. at 287
Same as previous. Id. at 283.
Placement of PMC children younger than two in
family-like settings within six months of the
order, children younger than six within 12
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months, and children under thirteen within 24
months. Id. at 287.
39