Wagner, Chief Judge, and Terry, Associate Judge, and Kern, Senior Judge.
The opinion of the court was delivered by: Per Curiam
Appeal from the Superior Court of the District of Columbia (Hon. Richard A. Levie, Trial Judge)
Appellants, the District of Columbia (District) and the District of Columbia Public Schools (DCPS), challenge an order of the trial court appointing a receiver for education at the Oak Hill Youth Center, a facility maintained by the District for the treatment and rehabilitation of detained and committed children. The question presented by this appeal is whether the trial court erred in granting this extraordinary remedy. While the District's history of compliance with the orders of the court leaves much to be desired, we are not persuaded that the record reveals a sufficient basis for the imposition of this remedy of last resort under the circumstances existing at the time of the entry of the order, and therefore, we reverse and remand.
I. Procedural and Factual Background
This case has a long and unfortunate history. It was commenced in 1985 when Jerry M., representing a class of detained and committed children confined at the District's facilities for juveniles, filed suit against the District and various District officials*fn1 contending that they had failed "to provide appropriate care, rehabilitation, and treatment to them in violation of the Constitution and the District of Columbia Code." Jerry M., supra note 1, 571 A. 2d at 180. On July 24, 1986, the parties entered into a Consent Decree which was approved by the court and entered as a judgment.*fn2 The Consent Decree provided, among other critical matters, for "minimum standards for staffing and training, improvements in diagnostic services, treatment planning through individual service plans (ISP) and Team leaders, as well as education, recreational, and mental health services and medical services" in the District's facilities. Id. at 181 (footnote omitted). Section IV (H) of the Consent Decree, Education and Vocational Programming, provided for the number of educational personnel to be employed, including a principal and assistant principal, certification requirements for teachers, specified student-teacher ratios, academic subjects approximating those available in the D. C. public schools, adequate equipment, materials and resources, and classroom placement according to individual ability. Various deadlines were set for implementation of each of these actions, with the latest to be completed by September 1, 1987. Pursuant to the Consent Decree, a Monitor was appointed to make findings and recommendations "concerning the steps to be taken to achieve compliance [with the Consent Decree]." Id. In addition, the Consent Decree established a panel of three experts to "determine the appropriate number of juveniles in need of secure confinement in the District and to develop a system for appropriate care, services, and placement of securely confined juveniles in YSA custody." *fn3 Id.
In the years following entry of the Consent Decree, the DCPS had responsibility for the educational program at the Receiving Home, while DHS and the YSA were responsible for the programs at Oak Hill and Cedar Knoll. Reports of the Court Monitor show that the school at the Receiving Home was generally in compliance with educational requirements. However, the court entered several orders reflecting that the schools at Oak Hill and Cedar Knoll were not in compliance with the educational requirements of the Consent Decree. For example, there was no substitute teacher roster or adequate equipment and supplies at Oak Hill School in 1986. The substitute teacher problem and inadequacy of books and supplies persisted in 1987, and cancellation and curtailment of school days occurred without reasonable justification. There were other violations in 1988, including an improper student-teacher ratio, lack of a substitute teacher roster, inadequate supplies, and violations of the special education requirements of the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. §§ 1401 et seq. In a report to the court filed on March 7, 1989, the Monitor reported that despite some improvements at Oak Hill, many children were not assigned to classes according to abilities, some staff positions were not filled, and there was still no substitute teacher roster and no meaningful vocational program. In a report submitted to the court in 1990, the Monitor reported that in spite of efforts to assist with compliance, Oak Hill School did not have enough special education teachers, lacked a substitute teacher roster, had teachers not certified in their area of specialization, and maintained an inadequate vocational education program. A contempt order was entered related to deficiencies in 1991. Some improvements were noted in 1992, but there were still deficiencies in connection with supplies, vocational education, timeliness of assessments, and special education provisions. In 1993, there were IDEA violations, inadequate teacher certification, inadequate books, equipment and supplies. In 1995, there were problems with children failing to attend classes and an insufficient number of teachers and substitute teachers, and noncompliance with special education requirements continued.
A different Judge was assigned to the case who requested a report from the Monitor's expert, Dr. Leone, and the court requested appellants to develop a plan to respond, focusing on education. Many of the teachers at the school were not adequately certified, and a new curriculum had not been implemented as promised. In March 1996, appellants announced their intention to secure the services of the Richard Milburn High School (RMHS) to run the educational programs at the Oak Hill School beginning with the 1996-97 school year. However, RMHS did not commence operation of the school until November 6, 1996, because the contract for services was not signed until mid-October of that year. Teachers were issued reduction-in-force (RIF) notices in anticipation of the transition to contract services. This created problems, which were reported by the Monitor as follows:
"From the day of the RIF notices, the educational program fell to pieces, with teachers using sick leave to look for new jobs or just refusing to come to work, coming in late and leaving early, and spending on-the-job time complaining about the unfairness of the RIF. Records were not kept; there were no special education referrals to the DCPS Diagnostic and Placement team for Oak Hill; diagnostic evaluations were not done, so placement of students in classes was based on little more than intuition; and students were allowed to wander the grounds almost at will."
At an emergency hearing, DCPS placed on the record its reasons for the position that it was not responsible for assisting YSA during the transition to privatization. The court ordered DCPS to provide Oak Hill with fourteen certified teachers, including two in special education, by September 16, 1996, and DCPS complied. According to the Monitor, "[t]he addition of DCPS teachers made the difference between holding school and not holding it."
By Order dated June 24, 1997, the trial court appointed a Special Master to "assist the [appellants] in identifying and correcting deficiencies in the provision of educational services required by the Consent Decree." In appointing the Special Master, the trial court stated that it sought to "initiate the process of judicial action with an effort of minimal intrusiveness to assist, not take over, [appellants']duties under the Consent Decree."*fn4 The trial court found, inter alia, that (1) "despite the assistance of the Monitor and the Monitor's experts, and in the face of the Court's remedial Orders I and K, [appellants]have never achieved compliance with the educational requirements of the Consent Decree"; (2) the "[appellants]have demonstrated an inability to achieve and sustain compliance with the Consent Decree and the Court's remedial orders regarding educational services. Moreover, the Court is convinced that the'lack of communication and cooperation'... is likely to recur without Court intervention"; (3) the appellants "conced[ed]substantial non-compliance on educational issues" following a hearing on [appellees']motion for contempt held on May 9, 1997, foregoing the defense of impossibility of performance; and (4) "[t]here is no factual dispute as to whether the Court has sufficient evidence to find defendants in contempt for violation of the Consent Decree." Among the duties conferred upon the Special Master were the following:
"In Phase One, the duty of the Special Master shall be to use the powers enumerated below to aid [appellants']compliance with the educational provisions of the Consent Decree. Phase Two of the Special Master's duties will become operational only if the Court concludes that [appellants]have failed to achieve substantial compliance with the educational provisions of the Consent Decree by December 1, 1997."
While Phase One powers essentially involved the preparation of an educational implementation plan and monitoring appellants' compliance with the plan, Phase Two powers gave the Special Master the authority to implement the plan developed in Phase One.
In the First Report to the trial court, the Special Master referenced the "' Commitment [of the District of Columbia Public Schools (DCPS)]to Providing Services to Special Education Students at Richard Milburn High School' at Oak Hill, signed on September 25, 1997, by the Acting Executive Director of the Special Education Division of DCPS."*fn5 After receiving this Report, the trial court issued Order 12, dated October 8, 1997, establishing court-ordered deadlines. Order 12 "incorporated the tasks, target dates and person(s) responsible noted in the [Special Master's]First Report ...