workers, parents, and siblings are crucial if there is to be any chance of reunification. Without such visitation, children are unable to develop a sense of safety, confidence, and trust. If the parents are uncooperative or unwilling to visit regularly and accept parental responsibility, social workers should expeditiously move toward adoption by gathering the necessary materials for terminating parental rights. Prolonged stays in foster care and frequent changes in placements lead to the disorders suffered by the named plaintiffs all too frequently. As Dr. Gross testified, Robert's problems are fairly characteristic of other children in the foster care population. Based on the foregoing, the Court finds that the children in the District's foster care have been and continue to be irreparably harmed -- psychologically, emotionally, and sometimes physically -- by the inappropriate treatment they have received while in that care.
Those who are not in the District's custody but who have been the subject of reports of neglect have also been harmed. Dr. Stein's case reading contains examples of 11 cases for which reports were substantiated but no services provided. In the most extreme case, a child died after his mother failed to keep him on a heart monitor made necessary by his medical problems. Prior to releasing the child to his mother, the CFSD had been made aware of the mother's lack of contact with the child while he was hospitalized. The homicide detective's report, made after the child's death, noted that the mother's apartment was dirty, without running water, and was littered with drug paraphernalia. The child showed signs of having been choked. In less extreme cases, children are forced to live in filthy, rodent-infested homes that lack electricity or running water. They are often in the presence of drug use and are not fed regular meals. Based on the foregoing, the Court finds that those plaintiffs who have been the subject of a report of neglect but remain in the home have been and continue to be harmed by the District's failure to provide preventive services.
C. Summary of Findings
To summarize, in the foregoing discussion, the Court found the following:
1. The average stay for children in the District's foster care system is 4.8 years, over twice the national average.
2. The CFSD has, since at least the beginning of 1988, continuously failed to initiate investigations into reports of neglect or abuse within 24 hours and complete investigations within two weeks.
3. The CFSD has consistently failed to use "reasonable efforts" to prevent the removal of children from their homes or to provide the services necessary to reunite them with their families when removal cannot be avoided.
4. Children in the CFSD's physical custody have consistently remained in voluntary or emergency care beyond 90 days without the filing of a neglect petition and beyond 180 days without a judicial determination that placement is in their best interests.
5. The CFSD has consistently failed to place children in the least restrictive placements in close proximity to their families and consistent with their needs.
6. The CFSD has frequently assigned children in its custody inappropriate case goals and has consistently failed to prepare written case plans to enable the children to realize their goals.
7. The CFSD has consistently failed to provide services once children are removed from the home and placed in foster care.
8. The CFSD has consistently failed to expedite the progression of children in its custody toward permanent placement through adoption and has failed to timely refer children whose goal is adoption to the Adoption and Placement Resources Branch.
9. The CFSD has consistently failed to ensure that the children in its custody receive timely judicial and administrative reviews regarding the continued necessity and appropriateness of placement.
10. The CFSD's automated information system, the WARD Tracking System, is wholly inadequate for keeping track of the number and location of children in the District's custody and their needs.
11. The caseloads handled by CFSD social workers have consistently exceeded reasonable professional standards and prevented the CFSD from carrying out its responsibilities under federal and District law.
12. Extreme staff shortages have consistently resulted in CFSD supervisors carrying caseloads rather than training and monitoring their employees.
13. The CFSD's Monitoring Unit has consistently failed to monitor and inspect foster homes and institutions on a yearly basis.
14. The DHS has consistently failed to use its funding in the most cost-effective manner and has consistently failed to maximize its federal funding by failing to make the administrative changes necessary to qualify for such funding.
15. Each of the named plaintiffs, as well as the rest of the members of the plaintiff class, have been and continue to be psychologically, emotionally, and physically harmed by the actions and inactions of defendants.
16. Management personnel at all levels of the DHS, as well as the former mayor, have repeatedly been advised about the department's deficiencies and inability to comply with federal and local law.
17. The DHS's proposed realignment, although a positive step toward improvement, is still too tentative to moot this case or make injunctive relief unnecessary.
CONCLUSIONS OF LAW
Plaintiffs bring their complaint under 42 U.S.C. § 1983, alleging that the District operates its child welfare system in violation of the federal Adoption Assistance and Child Welfare Act of 1980 and Child Abuse Prevention and Treatment Act, as well as the fifth amendment to the Constitution. Plaintiffs also allege that the District is violating its own statutes: the Prevention of Child Abuse and Neglect Act of 1977 and the Youth Residential Facilities Licensure Act of 1986. Plaintiffs seek injunctive relief only.
Section 1983 of Title 42 of the United States Code provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
A. Standard for § 1983 Liability
The seminal case establishing that municipalities may be held liable under § 1983 is Monell v. Dep't of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
In that case, the Supreme Court held that although "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents," it may be held liable "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. at 694. Defendants argue that the District cannot be held liable unless the alleged unconstitutional action "'implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by the body's officers.'" Defendants' Trial Brief at 9 (quoting Monell, 436 U.S. at 690 (1978)). Defendants ignore the next sentence of the Monell decision, however, which makes it clear that "local governments, like every other § 1983 'person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." 436 U.S. at 690-91. What matters is that the policy or custom is "the moving force of the constitutional violation." Id. at 694.
This circuit has elaborated on the Monell inquiry, holding that to establish municipal liability under § 1983, a plaintiff must prove the existence of "a persistent, pervasive practice, attributable to a course deliberately pursued by official policy-makers, one that caused the deprivation of constitutional rights plaintiff experienced." Carter v. District of Columbia, et al., 254 U.S. App. D.C. 71, 795 F.2d 116, 125-26 (D.C. Cir. 1986). The Court will use this legal standard to review the alleged statutory and constitutional violations in this case.
B. Alleged Statutory Violations
1. Applicability of § 1983
The Supreme Court has repeatedly held that § 1983 provides a federal remedy for violations of federal statutory rights as well as constitutional rights. See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, , 110 S. Ct. 444, 448, 107 L. Ed. 2d 420 (1989); Maine v. Thiboutot, 448 U.S. 1, 4, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980). The test for determining whether § 1983 provides a remedy for any particular statutory violation is two-part: first, "the plaintiff must assert the violation of a federal right," see Golden State Transit Corp., 493 U.S. at , 110 S. Ct. at 448, and second, Congress must not have specifically foreclosed the § 1983 remedy. Id. See also Thiboutot, 448 U.S. at 19. Whether a federal right has been violated depends upon whether the statute in question creates "obligations binding on the governmental unit" that are not "'too vague and amorphous' to be 'beyond the competence of the judiciary to enforce'" and that are "'intended to benefit' the putative plaintiff." Golden State Transit Corp., 493 U.S. at , 110 S. Ct. at 448 (quoting Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 431-32, 430, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987)).
Defendants have argued that the federal statutes relied upon by plaintiffs merely establish state grant programs and do not create actionable rights under § 1983. This argument is contrary to existing law. In Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983), the First Circuit applied the two-part test to alleged violations of the same statute at issue in this case, the federal Adoption Assistance Act. The court held that the Act confers enforceable rights upon children in the custody of states receiving federal funding under the Act. In so holding, the First Circuit relied on numerous Supreme Court decisions since 1968 that "implicitly and explicitly" have held that the rights under various provisions of the Social Security Act are privately enforceable under § 1983. 719 F.2d at 510 (citing cases). Having determined that the Adoption Assistance Act conferred an enforceable right, the First Circuit went on to determine that Congress had not foreclosed the § 1983 remedy by authorizing the Secretary of the Department of Health and Human Services to withhold or reduce federal funding under the Act when a state does not comply with its requirements. The court rejected the defendants' arguments that a cutoff in funding was the sole remedy under the Act. Instead, the First Circuit held that the issue was governed by Rosado v. Wyman, 397 U.S. 397, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970), in which the Supreme Court held that:
We have considered and rejected the argument that a federal court is without power to review state welfare provisions or prohibit the use of federal funds by the States in view of the fact that Congress has lodged in the Department of HEW the power to cut off federal funds for noncompliance with statutory requirements. We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program.
397 U.S. at 420.
More recently, the Fourth Circuit upheld the enforceability of the Adoption Assistance Act through § 1983 in L.J., By and Through Darr v. Massinga, 838 F.2d 118 (4th Cir. 1988), cert. denied, 488 U.S. 1018, 102 L. Ed. 2d 805, 109 S. Ct. 816 (1989). The Fourth Circuit held that the provisions of the Act:
spell out a standard of conduct, and as a corollary rights in plaintiffs, which plaintiffs have alleged have been denied. It is true that the statutes are largely statutes relating to appropriations, but, defendants' argument to the contrary notwithstanding, they are privately enforceable under 42 U.S.C. § 1983.