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LASHAWN A. v. KELLY

May 22, 1995

LASHAWN A., et al., Plaintiffs,
v.
SHARON PRATT KELLY, et al., Defendants.



The opinion of the court was delivered by: THOMAS F. HOGAN

 Four years ago, this Court heard more than two weeks of testimony and accepted more than 1000 admissions in a trial which exposed the desperate condition of the District of Columbia child welfare system. The Court then issued a 102-page opinion reaching "the inescapable conclusion" that the system was operated in violation of federal law, District law, and the United States Constitution. *fn1"

 I. PROCEDURAL HISTORY

 This case began with the filing of a class action on behalf of abused and neglected children in the District of Columbia, including both children within the District's custody and those who remained in private custody but were known to the District's Department of Human Services (DHS). Several District of Columbia officials, including the mayor, were named in their official capacities. *fn2" After a bench trial in February 1991, the Court issued a Memorandum Opinion on April 18, 1991.

 The opinion detailed widespread problems within the District of Columbia child welfare system and held that the defendants operated the system in a manner that violated the federal and local statutory rights of all the children in the plaintiff class. The Court also held that the defendants violated the Fifth Amendment rights of those plaintiff children in the foster care custody of the District of Columbia.

 After the finding of liability, the parties worked together to plan a course of remedial action. After a few months, the plaintiffs and defendants reached agreement on the specifics of needed reform. On August 27, 1991, the Court granted the parties' joint motion for entry into judgment of a Remedial Order incorporating this agreement. The Court then adopted the Monitor's Implementation Plan which laid out the steps necessary to comply with the Remedial Order. The defendants, in accordance with the terms of the Remedial Order, then appealed the judgment of liability, arguing alternatively that the Court erred in finding federal statutory and constitutional liability and that the Court should have abstained from exercising jurisdiction because the plaintiffs' claims were more appropriately addressed by the District of Columbia courts.

 On October 1, 1993, the Court of Appeals issued a remand, concluding that

 
Because the district court's judgment is independently supportable by District of Columbia law, we affirm the court's decision in favor of the children in this case. It appears that each provision of the remedial order reflects the requirements of District of Columbia statutes and regulations, as well as of federal statutes. Nevertheless, because the order was drafted to conform with federal as well as with District law, there are scattered references in the order to federal law that are inappropriate in light of our confirmation of the decision entirely on the basis of local law.
 
We therefore remand to the district court, with instructions to fashion an equally comprehensive order based entirely on District of Columbia law, if possible. If there are any portions of the consent decree that depend entirely on a federal statute, the district court should consider the impact of Suter v. Artist M. on those provisions before it includes them in the revised consent decree. *fn3"

 After reviewing the parties' briefs and hearing arguments on necessary modifications, the Court issued a second Remedial Order on January 27, 1994, which incorporated the minor changes requested by the Court of Appeals. The Monitor thereafter developed a Revised Implementation Plan, which the Court ordered incorporated into the new Remedial Order.

 Throughout this period of legal proceedings, the parties, Monitor, and Court continued with remedial efforts. As will be described below, on several occasions the plaintiffs and Court became discouraged with the progress of the defendants' compliance, and the plaintiffs twice moved for contempt. On October 4, 1994, when the defendants were utterly out of compliance with the Remedial Order and Revised Implementation Plan in the areas of Resource Development and Corrective Action, the Court entered an order imposing limited receiverships in those areas. *fn4" The October 4 order also adopted the parties' consent agreement for short timelines to meet other reform requirements in areas outside of those covered by the limited receiverships. Most of the elements of the consent agreement had been set forth in the Revised Implementation Plan, but the defendants had missed the deadlines and the plaintiffs agreed to extend them for selected tasks in an effort to avoid requesting further receiverships. The Court appointed the Receivers on November 23, 1994 and adopted their workplans on March 29, 1995.

 Since the entry of the initial Remedial Order, the Center for the Study of Social Policy has acted as a court-appointed Monitor. The Monitor proposed detailed implementation plans for both remedial orders and regularly reports to the Court on the status of compliance with the Court's orders. The Monitor also assists the parties with negotiations when consent agreements are developed for the Court's consideration.

 On April 4, 1995, the plaintiffs filed their third motion for contempt and also requested the imposition of a full receivership to cover all areas of the District's child welfare system. The Court now considers this motion.

 II. REMEDIAL HISTORY

 The remedial phase of this case has been marked by repeated cycles of noncompliance and sluggish progress, frustration and requests for court intervention, promises to improve, and further noncompliance after a flurry of attempts to make short-term changes. This pattern has convinced the Court that the defendants either cannot or will not make the fundamental changes necessary to improve the plight of abused and neglected children.

 The framework of the entire post-trial effort was the Remedial Order. This was not a set of restrictions that the Court unilaterally imposed upon the defendants. The parties developed its terms by consent and the then-mayor of the District of Columbia expressed her personal commitment to carrying out the plan. The Court entered the consent agreement as the Remedial Order.

 On December 22, 1992, the plaintiffs filed their first contempt motion when the defendants were tardy in complying with a provision of the Remedial Order requiring that the District conduct a case review of all individuals in the child welfare system. However, once the motion was filed, the parties were able to agree that the defendants would immediately focus on five key areas -- "building blocks" -- which were necessary precursors to further reform. On April 30, 1993, the plaintiffs withdrew the contempt motion and stated that they were "gratified with the progress and the hard work" that the defendants had devoted to the building block areas. April 30, 1993 Tr. at 4. This was perhaps the high point in the District's compliance history.

 On March 22, 1994, the plaintiffs filed their second contempt motion and supplemented it with a memorandum filed on July 21, 1994. The plaintiffs alleged noncompliance with nearly every section of the Remedial Order. This time, the plaintiffs requested that the Court appoint a receiver to solve all of the compliance problems. However, by the time they appeared before the Court on September 16, 1994, the parties had drafted a "consent agreement" stretching out the deadlines in many areas and the plaintiffs had agreed to hold in abeyance the request for a full receiver. Nonetheless, the plaintiffs maintained that receiverships for Resource Development and Corrective Action were necessary, and repeated their request for a finding of contempt September 16, 1994 Tr. at 1-12. The Court, not eager to engender resentment among the defendants and their employees, declined to grant the plaintiffs motion for a finding of contempt and held it in abeyance, even though "contempt may well [have been] justified." September 16, 1994 Tr. at 30. The Court therefore entered an order imposing the two limited receiverships and adopting the consent agreement on October 4, 1994.

 By November 23, 1994, it was clear to the Court that the defendants would be unable to meet the consent agreement's deadlines with respect to Protective Services. Therefore, the Court imposed a third limited receivership in that area.

 At this point, faced with increasing resistance on the part of the defendants, the Court was forced to begin issuing a series of piecemeal orders directing compliance with extant orders when it became apparent that the defendants had no plans to comply. See November 23, 1994 Order (requiring defendants to provide Monitor with copy of federal revenue maximization consultant's contract and establishing deadline for minor amendment of contract); November 23, 1994 Order (requiring defendants to formally adopt policies and procedures); February 16, 1995 Order (establishing deadline for defendants to issue management information system Request For Proposals).

 By February 10, 1995, the newly appointed Receivers had informed the court that extremely basic resources were absent or in short supply, thus making it almost impossible for various sectors of the child welfare system to function. The Court therefore entered an order adopting the Receivers' Emergency Resource Plan to address these pressing needs. The plan required the provision of such essentials as diapers, copy paper, printed intake forms, automobile maintenance, telephones, and food vouchers.

 Finally, on April 4, 1995, after learning that the Receivers were encountering resistance and hostility to their court-ordered efforts, and after compiling a 32-page list of over 130 areas in which they alleged the defendants had missed deadlines or were in noncompliance, the plaintiffs filed a third motion for contempt and again requested that the Court impose a full receivership. The motion has been fully briefed and was argued on May 15, 1995.

 III. PRESENT VIOLATIONS: FINDINGS OF FACT

 Various recent submissions from the parties, Monitor, and Receivers show that the defendants remain in noncompliance with many court-ordered requirements. It is important to note that most of these requirements, including those set forth in the Remedial Order and October 4, 1994 consent agreement, have been voluntarily proposed by the defendants. Instances of noncompliance are set forth below.

 A. Adoption

 Activity in this area has nearly ground to a halt, even though adoption provides welcome stability for children and an end to foster care expenses for the defendants. The Monitor reports that

 
adoptions activity has now declined to levels that existed before the implementation of the . . . Remedial Order. During [the first quarter of 1995] . . . no children's adoptive placements were finalized by the Court . . . . A total of 151 children have been awaiting adoptive placement for more than 9 months, with 92 of these children expected to be adopted by their foster care parents. As of the end of the quarter, there were 104 adoptive homes studies that were incomplete after 150 days. These data are a cause for serious concern . . . . The Adoptions Branch has been operating without a permanent Chief since October, 1994 and there is a critical need to restore forceful leadership to this area. *fn5"

 1. Policies and Procedures. The defendants were to have provided the necessary resources and implemented revised adoption policies and procedures by March 31, 1993. The deadline was then extended to September 30, 1993. *fn6" It was not until the Court ordered the defendants to adopt the policies and procedures on November 23, 1994 that this requirement was even halfway met. The defendants claim that they are in compliance with the revised policies and procedures, *fn7" but the Monitor disagrees. *fn8" It is impossible to conclude that the policies and procedures are being followed at the same time that adoptions activity has nearly halted and the plaintiffs are forced to provide their own suggestions for next steps.

 2. Adoptions Branch Staffing. The Court required the defendants to fully staff the Adoptions Branch by June 30, 1992, and then extended the deadline to September 30, 1993. *fn9" The Monitor and defendants agree that as of April 16, 1995, nearly three years after the original deadline, the Branch still suffers from severe staffing shortages from top to bottom. The Adoptions Branch Chief position is not filled with a permanent employee, and at least five social workers, two clerks, and two social services assistants need to be hired. *fn10"

 3. TPR Staffing. Corporation Counsel was to have committed the necessary personnel to assure timely termination of parental rights (TPR) by September 30, 1993. *fn11" Until this judicial procedure is completed, a child cannot be legally adopted. The defendants claim that they have completed this task because they hired a TPR Coordinator on March 9, 1995. *fn12" However, the Monitor notes that the defendants must still hire a legal assistant and full-time attorney. *fn13" Therefore, this task is not complete.

 4. Prompt Home Studies. The Court ordered that all home studies conducted in preparation for adoption be completed within 150 days. The original deadline for this item was December 31, 1992, but it was extended to March 31, 1993. *fn14" More than two years after the extended deadline, the defendants admit that they are not in compliance. *fn15" The Monitor states that compliance is "not even close" -- 104 home studies were beyond the timeline as of March 31, 1995. *fn16"

 5. Monitoring and Improvement. The Court ordered the defendants to monitor the progress of adoption activity, identify barriers, and develop the necessary corrective action plans on a quarterly basis. *fn17" Because adoptions activity is proceeding so poorly, it is clear that compliance in this area is far from complete, and the Monitor so concludes. *fn18"

 B. Staffing

 1. Total Number of Social Workers. The Court ordered the defendants to ensure the employment of 316 social workers by December 31, 1994. *fn19" The defendants report that only 290 social workers were in place as of April 18, 1995. *fn20" As the Monitor points out, the figures showing noncompliance here understate the actual shortage, since the present requirement was calculated based on the total number of children in the child welfare system in December 1993. In the meantime, the number of children in the system has increased and the total number of necessary social workers will rise accordingly. *fn21"

 Serious problems can occur when staffing shortages lead to high caseloads. In its April 1991 opinion, the Court found that the extra responsibility made the social workers unable to

 
initiate timely investigations, provide needed services, ensure appropriate placements, prepare case plans, visit with foster children and parents, recruit foster and adoptive families, monitor foster homes and institutions, and claim all federal funding to which the CFSD should be entitled. *fn22"

 Though the defendants argue that they are close to the goal and therefore have achieved substantial compliance, several factors counterbalance this rosy interpretation. First, the deadline for full compliance is five months past To be below the goal at this late stage does not inspire any confidence in future improvements. Second, the Monitor reports that for every two new social workers hired during the remedial phase of this case, one social worker has resigned. *fn23" This reveals the full measure of the challenge the defendants face in increasing their workforce. Third, the lag in compliance also suggests that the defendants will be unable to step up their efforts once the Monitor adjusts the goal to reflect the increased number of children in the system. Fourth, the Receivers report that social workers and other FSA staff were reported to be "leaving in droves" as a result of recent pay cuts, furloughs, and general disregard for worker concerns. *fn24" The defendants do not seem prepared for this potentially accelerating attrition, especially when considered in light of the extant retention problems.

 2. Administrative Supports. The Monitor and defendants agree that the defendants are not in compliance with the court-ordered requirement that they develop and implement a plan to provide the required administrative supports to staff. *fn25" This requirement is reiterated in the Emergency Resources Plan adopted by the Court on February 10, 1995. The Monitor reports that even though many of the requirements of the Emergency Resources Plan were initially met,

 
the Receivers and workers continue to report ongoing problems related to the availability of administrative supports (e.g., difficulty accessing supplies, forms, and vouchers for client services, lack of attention to basic office cleanliness and maintenance, lack of working word processors, phones that were once operable ceasing to work, and the ever-present problem of too few working automobiles). The response to the February 10 Court Order addressed the immediate crises and some systems were put in place to avert future crises of the same nature. However, the Receivers report that maintenance of equipment and lack of basic staff resources is an ongoing problem. *fn26"

 The Receivers concur, and note that "each box of xerox paper secured for staff and each time a fax machine receives toner is a major victory," but that the cost of pursuing these basic resources is "high both in time and in steadily accumulating frustration." *fn27" This level of noncompliance is dismal. Without administrative supports that most professionals take for granted, the social workers cannot be expected to fulfill their most basic responsibilities, let alone take the extra steps needed to reform the present system.

 3. Other Staffing Requirements. The defendants have failed to comply with numerous other staffing requirements. They were required to conduct an occupational study of social worker positions by June 30, 1992. *fn28" The deadline was extended to June 30, 1993, but as of April 18, 1995, the defendants could only state that a draft study had been completed and that a meeting had been scheduled for the next day to review the draft. *fn29" The Monitor reports also that "final plans for implementation of the new standard are proceeding at an extremely slow pace." *fn30" The defendants also state that they are in noncompliance with court-ordered requirements that they review and revise promotions policy, review employee performance every 6 months, and develop a caseload weighing formula. *fn31"

 Furthermore, the defendants admit that they are not in compliance with requirements that all social workers have a current and valid license. *fn32" More importantly, they admit that over half of their supervisory units do not meet the required supervisor-to-staff ratio. *fn33" The Court required that this important standard be met by December 31, 1993. *fn34" When supervisors' caseloads are high, problems of overwork arise just as they do for line social workers. In its April 1991 opinion, the Court noted that "by carrying heavy caseloads, the[] supervisors have been unable to train staff and to monitor cases to ensure the safety and well-being of the children for whom their staff is responsible." *fn35" As of March 31, 1995, over half of the 44 supervisory units had more than the required maximum of 5 social workers. *fn36" This is not even close to compliance.

 C. Training

 The Monitor notes *fn37" and the defendants admit *fn38" that the defendants are in noncompliance with the court-ordered requirement that they develop and implement training for contract agencies focused on the needs of child-care and group home providers. *fn39" Though the original deadline of March 31, 1993 was extended to June 30, 1993, as of March 31, 1995, the defendants were only able to report that "planning meetings ...


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