in the united states court of appeals for the first …...2014/03/24 · civ. no. 1:10-cv-30073-wgy...

No. 13-2467

In the United States Court of Appeals for the First Circuit

CONNOR B., by his next friend Rochelle Vigurs; ADAM S., by his next friend Denise Sullivan; CAMILA R., by her next friend Bryan Clauson; ANDRE S., by his next friend Julia Pearson; SETH T., by his next friend Susan Kramer; and RAKEEM D., by his next friend Bryan Clauson, for themselves and those

similarly situated, Plaintiffs-Appellants

v.

DEVAL L. PATRICK, Governor of the Commonwealth of Massachusetts; JOHN POLANOWICZ, Secretary of the Massachusetts Executive Office of Health and Human Services; and OLGA I. ROCHE, Commissioner of the

Massachusetts Department of Children and Families, in their official capacities,

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Civ. No. 1:10-cv-30073-WGY

BRIEF OF PLAINTIFFS-APPELLANTS Marcia Robinson Lowry (No. 1136452) Sara M. Bartosz (No. 1161471) Rachel B. Nili (No. 1141572) Sarah T. Russo (No. 1161468) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 [email protected] [email protected] [email protected] [email protected]

Mary K. Ryan (No. 13421) Daniel J. Gleason (No. 15241) Jonathan D. Persky (No. 1144768) NUTTER MCCLENNEN & FISH, LLP 155 Seaport Boulevard Boston, MA 02210 Phone: (617) 439-2000 Facsimile: (617) 310-9000 [email protected] [email protected] [email protected] Attorneys for Plaintiffs-Appellants

Case: 13-2467 Document: 00116664950 Page: 1 Date Filed: 03/24/2014 Entry ID: 5810287

i

TABLE OF CONTENTS

Table of Authorities ............................................................................................ iii

Reason Why Oral Argument Should Be Heard .................................................. xi

Jurisdictional Statement ........................................................................................ 1

Statement of Issues on Appeal .............................................................................. 2

Statement of the Case ........................................................................................... 4

I. Maltreatment to Children in Foster Care .................................................... 8

II. Reentry of Children into Foster Care ....................................................... 18

III. Multiple Placement Moves ....................................................................... 21

IV. Inadequate Medical Services .................................................................... 24

V. Lack of Permanency for Children ............................................................ 25

VI. Inadequate Sibling Placement and Visitation ........................................... 27

Summary of the Argument ................................................................................. 29

Argument ............................................................................................................ 33

I. Standard of Review .................................................................................. 33

II. The District Court Erred in Granting Defendants’ Motion For Judgment on the Record on Plaintiffs’ Substantive Due Process Claims. ...................................................................................................... 35

A. The District Court Erred in Applying a “New, Two-Pronged Approach” to Plaintiffs’ Substantive Due Process Claims, in Contravention of Controlling Case Law. ....................................... 35

i. Individuals Committed to State Custody for Non-Penal Reasons Are Entitled to a Culpability Standard that Recognizes that They Have Been Deprived of the Ability to Care for Themselves. ........................................... 36


ii

ii. In the Foster Care Context, a Substantial Departure from Professional Judgment Is Conscience-Shocking. ....... 40

B. The District Court Erred in Applying Plaintiffs’ Substantive Due Process Claims Under the Two-Pronged Standard. ............... 46

i. The District Court Erred in Holding that Plaintiffs Did Not Experience Class-Wide Deprivations. .......................... 47

ii. The District Court Erred in Holding that Defendants Did Not Substantially Depart from Professional Judgment. ............................................................................. 53

iii. The District Court Erred in Ruling that Plaintiffs Did Not Demonstrate that the Defendants’ Conduct Was Conscience-Shocking. .......................................................... 63

III. The District Court Erred in Granting Defendants’ Motion for Judgment on the Record on Plaintiffs’ Family Association Claim. ......... 71

IV. The District Court Erred in Granting Defendants’ Motion for Judgment on the Record on Plaintiffs’ Procedural Due Process Claim. ....................................................................................................... 71

V. The District Court Erred in Granting Defendants’ Motion for Judgment on the Record on Plaintiffs’ Constitutional Claims Based on Improper Fiscal Considerations. .......................................................... 74

VI. The District Court Erred in Granting Defendants’ Motion for Judgment on the Record on Plaintiffs’ Statutory Case Plan Claim. ........ 79

Conclusion .......................................................................................................... 82

Fed. R. App. P. 32(a) Certificate of Compliance ............................................... 84

Certificate of Service .......................................................................................... 85


iii

TABLE OF AUTHORITIES

Cases

Ammons v. Washington Department of Social & Health Services, 648 F.3d 1020 (9th Cir. 2011) ....................................................................... 44, 55

B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989) ................................................................ 39, 77

Bailey v. Pacheco, 108 F. Supp. 2d 1214 (D.N.M. 2000)................................................................... 81

Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011) ......................................................................... 43, 56

Bolmer v. Oliveira, 594 F.3d 134 (2d Cir. 2010) ................................................................................. 45

Bounds v. Smith, 430 U.S. 817 (1977) ............................................................................................. 75

Brian A. ex rel. Brooks v. Sundquist, 149 F. Supp. 2d 941 (M.D. Tenn. 2000) ....................................................... 38, 45

Cameron v. Tomes, 990 F.2d 14 (1st Cir. 1993) .................................................................................. 55

Charlie H. v. Whitman, 83 F. Supp. 2d 476 (D.N.J. 2000) ......................................................................... 38

Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288 (D. Mass. 2011) ..................................................................... 5, 47

Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142 (D. Mass. 2011)........................................................... passim

County of Sacramento v. Lewis, 523 U.S. 833 (1998) ..................................................................................... passim

Coyne v. Cronin, 386 F.3d 280 (1st Cir. 2004) ................................................................................ 64


iv

D.G. ex rel. Strickland v. Yarbrough, No. 08-CV-074-GKF-FHM, 2011 WL 6009628 (N.D. Okla. Dec. 1, 2011) ....................................................................... 38, 46, 48

Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001) ........................................................................... 42, 43

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) ............................................................................................. 36

DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188 (10th Cir. 2010) ..................................................................... 48, 52

Dimarzo v. Cahill, 575 F.2d 15 (1st Cir. 1978) .................................................................................. 76

Doe ex rel. Johanns v. New York City Department of Social Services, 670 F. Supp. 1145 (S.D.N.Y. 1987) ........................................................ 39, 45, 77

Doe ex rel. Johnson v. South Carolina Department of Social Services, 597 F.3d 163 (4th Cir. 2010) ................................................................................ 39

Doe v. Gaughan, 808 F.2d 871 (1st Cir. 1986) ......................................................................... 38, 62

Ensley Branch, N.A.A.C.P. v. City of Birmingham, 31 F.3d 1548 (11th Cir. 1994) .............................................................................. 78

Eric L. ex rel. Schierberl v. Bird, 848 F. Supp. 303 (D.N.H. 1994) ................................................................... 38, 45

Estelle v. Gamble, 429 U.S. 97 (1976) ............................................................................................... 33

Estelle v. Gamble, 429 U.S. 97 (1976) .................................................................................. 37, 41, 54

Farmer v. Brennan, 511 U.S. 825 (1994) ............................................................................................. 54

Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) .............................................................................. 76


v

Gideon v. Wainwright, 372 U.S. 335 (1963) ............................................................................................. 33

Goldberg v. Kelly, 397 U.S. 254 (1970) ...................................................................................... 73, 74

González-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010) ................................................................................ 72

H.A.L. ex rel. Lewis v. Foltz, 551 F.3d 1227 (11th Cir. 2008) ............................................................................ 39

Healey v. Murphy, Civ. Nos. 01-11099-PBS, 04-30177-PBS, 2013 WL 1336786 (D. Mass. Mar. 29, 2013) ............................................................................................................... 56

Helling v. McKinney, 509 U.S. 25 (1993) ............................................................................................... 48

Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012) ................................................................................ 39

Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970) ...................................................................... 76

Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971) ................................................................................ 76

Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) .............................................................................. 58

Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985) ................................................................................ 47

Idaho Watersheds Project v. Jones, 127 F. App’x 967 (9th Cir. 2005) ......................................................................... 47

Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982) ............................................................................................. 34

J.R. ex rel. Raymond v. Gloria, 593 F.3d 73 (1st Cir. 2010) ............................................................... 38, 43, 44, 65


vi

Jackson ex rel. Jackson v. Fort Stanton Hospital & Training School, 964 F.2d 980 (10th Cir. 1992) .............................................................................. 62

K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990) ................................................................................ 65

Kenny A. ex rel. Winn v. Perdue, No. 1:02-cv-1686-MHS, 2004 WL 5503780 (N.D. Ga. Dec. 13, 2004) 38, 39, 45

Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460 (1989) ..................................................................................... 72

L.J. ex rel. Darr v. Massinga, 838 F.2d 118 (4th Cir. 1988) ................................................................................ 39

LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C. 1991) ............................................................. 39, 45, 62

LoVuolo v. Gunning, 925 F.2d 22 (1st Cir. 1991) .................................................................................. 34

Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983) ................................................................................ 80

Lynch v. King, 550 F. Supp. 325 (D. Mass. 1982) ........................................................... 80, 81, 82

M.D. ex rel. Stukenberg v. Perry, --- F. App’x ----, No. 13-90045, 2013 WL 6069426 (5th Cir. Nov. 19, 2013) .... 48

M.D. ex rel. Stukenberg v. Perry, 294 F.R.D. 7 (S.D. Tex. 2013) ...................................................................... 45, 48

Marina Bay Realty Trust LLC v. United States, 407 F.3d 418 (1st Cir. 2005) ................................................................................ 33

Martínez v. Cui, 608 F.3d 54 (1st Cir. 2010) .................................................................................. 44

Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................................. 72


vii

Mills v. Board of Education of the District of Columbia, 348 F. Supp 866 (D.D.C. 1972) ........................................................................... 74

Mullin v. Town of Fairhaven, 284 F.3d 31 (1st Cir. 2001) .................................................................................. 33

Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) ................................................................................. 39

Osediacz v. City of Cranston, 414 F.3d 136 (1st Cir. 2005) ................................................................................ 47

Raper v. Lucey, 488 F.2d 748 (1st Cir. 1973) ................................................................................ 73

Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003) .................................................................................. 82

Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980) ................................................................................. 55

Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972) ............................................................................. 75, 76

Sandin v. Conner, 515 U.S. 472 (1995) ............................................................................................. 58

Santana v. Collazo, 793 F.2d 41 (1st Cir. 1986) ..................................................................... 38, 55, 56

Schwartz v. Booker, 702 F.3d 573 (10th Cir. 2012) ....................................................................... 40, 45

Servicios Comerciales Andinos, S.A. v. General Electric Del Caribe, Inc., 145 F.3d 463 (1st Cir. 1998) ................................................................................ 34

Shreve v. Franklin County, 743 F.3d 126 (6th Cir. 2014) ................................................................................ 44

Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) ............................................................................................... 47


viii

Smith v. District of Columbia, 413 F.3d 86 (D.C. Cir. 2005) ............................................................................... 45

Stone v. San Francisco, 968 F.2d 850 (9th Cir. 1992) ................................................................................ 75

Suter v. Artist M., 503 U.S. 347 (1992) ............................................................................................. 39

Thomas S. v. Morrow, 601 F. Supp. 1055 (M.D.N.C. 1984) .................................................................... 77

Thornburg v. Gringles, 478 U.S. 30 (1986) ............................................................................................... 34

United States v. Poland, 562 F.3d 35 (1st Cir. 2009) .................................................................................. 34

Uno v. City of Holyoke, 72 F.3d 973 (1st Cir. 1995) .................................................................................. 34

Watson v. City of Memphis, 373 U.S. 526 (1963) ................................................................................ 32, 74, 75

Winston ex rel. Winston v. Children & Youth Services of Delaware County, 948 F.2d 1380 (3d Cir. 1991) ........................................................................ 38, 45

Youngberg v. Romeo, 457 U.S. 307 (1982) ..................................................................................... passim

Yvonne L. ex rel. Lewis v. New Mexico Department of Human Services, 959 F.2d 883, 892-93 (10th Cir. 1992) ......................................................... 48, 53

Constitutional Provisions

United States Constitution Amendment I ..............................................................1, 4

United States Constitution Amendment IX ...........................................................1, 4

United States Constitution Amendment VIII ................................................... passim

United States Constitution Amendment XIV ................................................. 1, 4, 43


ix

Statutes

28 United States Code § 1291 .................................................................................... 1



42 United States Code § 1983 ............................................................................. 1, 54



42 United States Code § 670 ........................................................................... 1, 5, 79



Acts and Resolves of Massachusetts 176, § 134 (2008) .......................................... 70

Massachusetts General Laws ch. 119, § 26B ........................................................... 27

Massachusetts General Laws ch. 119, §23 .............................................................. 27

Massachusetts General Laws ch. 18C, § 11 ............................................................. 70

Other Authorities

Circular No. A-133 (O.M.B.), §__.400 ................................................................... 16

Rules

Federal Rule of Civil Procedure 25 ........................................................................... 4

Federal Rule of Civil Procedure 52 ........................................................................... 6

Regulations

110 Code of Massachusetts Regulations 10.10 ....................................................... 73

110 Code of Massachusetts Regulations 5.02 ......................................................... 19




x

110 Code of Massachusetts Regulations 8.01 ......................................................... 73

110 Massachusetts Code of Regulations 4.31 ......................................................... 14

45 Code of Federal Regulations § 1355.34 .............................................................. 15

45 Code of Federal Regulations § 1357.15 .............................................................. 15

45 Code of Federal Regulations § 74.26 .................................................................. 16

45 Code of Federal Regulations § 74.51 .................................................................. 16


xi

REASON WHY ORAL ARGUMENT SHOULD BE HEARD

Plaintiffs respectfully request that the Court hear oral argument because this

appeal raises issues of first impression in this Circuit that are of broad-ranging

importance to foster children’s ability to vindicate their rights in federal court. Key

among these issues is the proper culpability standard for adjudicating the

substantive due process claims of children in state custody. In arguing for the

proper standard and application of that standard, Plaintiffs address Supreme Court

and First Circuit jurisprudence, as well as a complex and extensive factual record.

Oral argument is likely to assist the Court in evaluating these issues.


1

JURISDICTIONAL STATEMENT

The district court had subject matter jurisdiction over this 42 U.S.C. § 1983

action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), as this case involved

constitutional issues under the First, Ninth, and Fourteenth Amendments to the

U.S. Constitution and federal statutory claims under 42 U.S.C. § 670 et seq. This

Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1291 because the

district court’s granting of Defendants’ Motion for Judgment on the Record

disposed of all of Plaintiffs’ claims and thus constituted a final judgment.

The district court entered an Order and Final Judgment on September 30,

2013, (Dkt. Nos. 369, 370 (Addendum (“Add.”) 85-88)) and filed its Findings and

Rulings on November 22, 2013, Connor B. ex rel. Vigurs v. Patrick, No. 10-

30073-WGY, Findings and Rulings (Dkt. No. 373) (Add. 1-84) (“Op.”). On

October 9, 2013, Plaintiffs filed a Motion to Extend Time to File Notice of Appeal,

Record Appendix (“RA”) 162-66, which was granted by the district court on

October 10, 2013. RA 167-68. This Order extended the deadline to file Plaintiffs’

Notice of Appeal until November 29, 2013. Plaintiffs timely filed their Notice of

Appeal on November 26, 2013. RA 169-70.


2

STATEMENT OF ISSUES ON APPEAL

I. Did the district court err in granting Defendants’ Motion for Judgment on

the Record as to Plaintiffs’ substantive due process claims by:

A. Applying a new, two-pronged standard for demonstrating violations of

substantive due process that required Plaintiffs to show conscience-

shocking conduct beyond substantial departures from accepted

professional judgment?

B. Erroneously applying this two-pronged standard to Plaintiffs’

substantive due process claims by:

i. Ruling that Plaintiffs did not show class-wide deprivations of due

process, despite its own findings of fact as to pervasive harm to

Plaintiffs, and failing to treat unreasonable risk of harm as

cognizable legal injury?

ii. Misinterpreting and misapplying the professional judgment

standard in ruling that Defendants did not substantially depart

from accepted professional judgment, despite its findings of fact

as to serious structural deficiencies?

iii. Ruling that the evidence presented did not shock the conscience?

II. Did the district court err in granting Defendants’ Motion for Judgment on

the Record on Plaintiffs’ family association claim despite its findings of fact


3

based on record evidence demonstrating routine failure to provide child-

family visits?

III. Did the district court err in granting Defendants’ Motion for Judgment on

the Record on Plaintiffs’ procedural due process claim by failing to assess

whether Defendants assure Plaintiffs both notice and a meaningful

opportunity to be heard?

IV. Did the district court err as a matter of law by denying relief as to Plaintiffs’

constitutional claims because it found that Plaintiffs’ harms were principally

attributable to insufficiency of appropriated funds?

V. Did the district court err in granting Defendants’ Motion for Judgment on

the Record on Plaintiffs’ statutory claim for failing to provide complete case

plans, despite its findings of fact that case plans are often incomplete or

entirely unavailable?


4

STATEMENT OF THE CASE

Named Plaintiffs, six children in the foster care custody of the

Massachusetts Department of Children and Families (“DCF”), commenced this

action, through their next friends and on behalf of themselves and all those

similarly situated (collectively, “Plaintiffs”), on April 15, 2010 in the Springfield

Division of the United States District Court for the District of Massachusetts. RA

11. Plaintiffs moved for class certification on the same day. RA 11. Defendants are

the Governor of the Commonwealth of Massachusetts, the Secretary of the

Executive Office of Health and Human Services (“EOHHS”), and the

Commissioner of DCF, each in his or her official capacity.1 Plaintiffs assert

constitutional and statutory causes of action arising from DCF’s failures in

administering the Commonwealth’s foster care system, seeking redress for

violations of: (i) substantive due process rights under the Fourteenth Amendment;

(ii) rights to familial association and integrity under the First, Ninth, and

Fourteenth Amendments; (iii) procedural due process rights under the Fourteenth

Amendment; and (iv) federal statutory rights to foster care maintenance payments

and case plans under the Adoption Assistance and Child Welfare Act of 1980, 42

1 Pursuant to Fed. R. Civ. P. 25(d), names of the current EOHHS Secretary and DCF Commissioner have been substituted for those who were in office at the time the Complaint was filed. This Court entered an Order on March 24, 2014 recognizing the same.


5

U.S.C. §§ 670 et seq. (“AACWA”). Defendants moved to dismiss the Complaint.

RA 13.

On January 4, 2011, the district court (Ponsor, J.) issued a Memorandum and

Order denying the motion to dismiss. Connor B. ex rel. Vigurs v. Patrick, 771 F.

Supp. 2d 142 (D. Mass. 2011) (Add. 89-106). On February 8, 2011, it issued a

Memorandum and Order certifying the Plaintiff Class. Connor B. ex rel. Vigurs v.

Patrick, 272 F.R.D. 288 (D. Mass. 2011). Following discovery by the parties,

Judge Ponsor transferred the action to the Boston Division for trial.2 RA 34. Trial

commenced on January 22, 2013 before Judge William G. Young and continued

through 24 trial days. Mid-trial, Defendants moved for judgment on the record and

the district court suspended testimony pending its decision on the motion. RA 43.

On May 21, 2013, the district court heard argument on the Motion for Judgment on

the Record.3 RA 48. On September 30, 2013, it entered an order granting

2 By electronic order entered on May 17, 2012, the district court established an August 15, 2012 fact cutoff date for purposes of defining the timeframe for admissible evidence at trial. RA 26. On August 24, 2012, the district court entered an order bifurcating the case and providing that trial would first proceed on liability issues alone. RA 30. 3 As of that date, Plaintiffs had rested their case-in-chief, and Defendants had presented two witnesses in the defense case, including then-DCF Commissioner Angelo McClain and then-Deputy Commissioner Jan Nisenbaum. Plaintiffs conducted full cross-examination of Mr. McClain. Testimony was suspended before Plaintiffs had opportunity to conduct any cross-examination of Ms. Nisenbaum. The district court stated on the record that it would consider any evidence in the trial record as of suspension of trial proceedings in adjudication of


6

Defendants’ Motion for Judgment on the Record, and the clerk entered final

judgment. (Dkt. Nos. 369, 370). The district court issued its Findings and Rulings

pursuant to Fed. R. Civ. P. 52(c) on November 11, 2013. See Op.

The district court gave harsh assessments of the system, including findings,

for example, that:

[T]he laundry list of problems plaguing DCF is well documented: whether the relevant metric is performance in minimizing maltreatment in care, facilitating appropriate placements and ensuring placement stability, achieving permanency in placement outcomes, providing educational and medical services, administering caseload management and training, or guaranteeing accountability, DCF has failed not only to comport with national standards of care and state and federal requirements but also to comply with its own internal policies.

Op. 67-68. Notwithstanding such sweeping findings, the trial judge held that

“Defendants . . . did not substantially depart from widely accepted professional

judgment” and that “there is little in the present record that could be said to have

shocked the impressionable conscience of the Court.” Op. 67, 73. The court went

on to state, “Plaintiffs have not succeeded in showing that the deprivations

complained of were felt class-wide.” Op. 74. Concluding that “financial and

administrative constraints – not the alleged mismanagement by DCF officials –

pose the greatest threat to children in the Massachusetts foster care system today,”

Defendants’ Motion for Judgment on the Record. (Trial Tr., Vol. 19, May 7, 2013 at 94).


7

the trial judge added that “Plaintiffs [had] set themselves to climb a virtually

unscalable peak” and “ha[d] failed in the ascent.” Op. 71, 83.4

Below, Plaintiffs summarize the record evidence establishing constitutional

harms resulting from Defendants’ abdication of professional judgment in

administering DCF’s foster care system, including: maltreatment to children in

foster care, reentry of children into foster care due to repeat maltreatment in their

family homes, psychological trauma to children from multiple moves between

foster homes, inadequate assurance of timely medical screenings and services,

emotional damage to children from unreasonably long stays in foster care, and

disruption of family bonds due to sibling separation and infrequent or altogether

absent sibling and parental visitation.

Plaintiffs also summarize the record evidence demonstrating that numerous

structural deficiencies expose children in DCF foster care to unreasonable risk of

these constitutional-level harms, including deficiencies in what Plaintiffs’ safety

expert, Arburta Jones, identified as four “hinge pins” of a sound child welfare

safety net, Op. 14, and what Plaintiffs’ child welfare management expert, Cathy

Crabtree, referred to as “four critical building blocks” of a competent foster care

system, Op. 13-14.

4 Plaintiffs seek review of the district court’s denial of all of their causes of action. Discrete facts relating to their procedural due process claim and statutory claim for case plans are set forth in those sections of the argument. See infra §§ IV, VI.


8

I. MALTREATMENT TO CHILDREN IN FOSTER CARE

Plaintiffs’ social work expert, Dr. Lenette Azzi-Lessing, reviewed DCF’s

case files for five of the Named Plaintiffs to assess whether practice conformed to

accepted standards of social work and identified multiple instances of abuse

befalling these children. Named Plaintiff Connor B., at age six, was placed in a

foster home with a teenager known to be at risk for sexually abusing younger

children. DCF sought to manage this risk by placing an alarm on the child’s

bedroom door. (Trial Tr. Vol. 6, Feb. 4, 2013 at 84:16-85:10). The teen went on to

rape Connor B. repeatedly. Op. 21. Named Plaintiff Andre S. and his sister, both

younger than seven, were placed by DCF in a cousin’s home, where they

reportedly were prompted to engage in sexual acts with each other and also to

watch their cousin and her boyfriend having sex and taking drugs together. Op. 22.

Named Plaintiff Adam S. suffered brutal beatings by his adoptive parents. These

beatings occurred after other foster children in the adoptive home had been

removed by DCF due to safety concerns. Op. 22. Once removed into state custody,

Adam S. experienced further physical abuse, resulting in a fractured collar bone, as

well as self-reported sexual abuse in a residential facility chosen by DCF. RA

1009-10. The district court found that the Named Plaintiffs had suffered “egregious

instances of maltreatment.” Op. 21-23.


9

Beyond the Named Plaintiffs’ harrowing experiences, the trial evidence

established that far more children in DCF custody have suffered maltreatment by

foster caretakers, at rates that place the Commonwealth near the bottom of national

performance in terms of assuring basic safety. The district court found:

From 2006 to 2011, Massachusetts reported absence of maltreatment rates . . . [that] . . . when compared to those of other states, placed the Commonwealth fourth worst out of forty-six reporting states in 2006, the seventh worst out of forty-six reporting states in 2007, the fourth worst out of forty-eight states in 2008, the seventh worst out of forty-nine states in 2009, the eighth worst out of forty-seven states in 2010, and the seventh worst out of forty-nine states in 2011.

Op. 19 (citing Trial Ex. 1088 at 57, Tbl. 3-20 (RA 3635); Trial Ex. 1161, Child

Maltreatment 2011 at 55, Tbl. 3-15 (RA 3707)).5 Put in human terms, 116 children

suffered substantiated abuse or neglect while in DCF foster care in 2010, an

average of approximately one victim every three days. RA 3026-27. Stated another

way, if DCF had met the national standard for absence of maltreatment in care in

2011, 54 fewer children would have suffered abuse or neglect in foster care, an

average of approximately one child per week. Id.

5 The federal government has established six national indicators for assessing state child welfare performance, including one measuring the percent of children served in foster care not subjected to maltreatment by a foster caretaker. RA 2473-74, 77-78. This indicator is calculated using the number of substantiated victims in an annual reporting period as the numerator and the total number of children served in foster care during the annual reporting period, whether for any one day or all 365 days of the period, as the denominator. RA 2477. The national standard on this indicator is 99.68%, which reflected the 75th percentile of state performance across the nation at the time it was established in 2004. RA 2477. (Trial Ex. 492 at 1; see also Trial Ex. 493).


10

Plaintiffs presented evidence showing that nearly one in five children with

longer stays in DCF foster care suffered maltreatment. Citing the case records

review conducted by Plaintiffs’ expert, Children’s Research Center (“CRC”)6 the

district court found “[o]f 240 children in the two-year cohort, forty-three were

victims of substantiated maltreatment prior to July 2009 . . . [T]his means that at

the start of the observation period, 17.9% of children in the two-year cohort had

already experienced substantiated maltreatment while in DCF custody.” Op. 21.

The trial judge found this incidence of substantiated maltreatment in DCF custody

“striking.” Op. 21 (citing Trial Ex. 1065 at Table C59 (RA 3475)).

Plaintiffs’ safety expert Arburta Jones, testifying on the issue of child safety,

opined that Defendants have failed to provide a minimally adequate child welfare

safety net, based on her assessment of four “hinge pins” she considered essential:

regular caseworker visitation of children in their foster care placements,

appropriate licensure of foster homes, timely investigations of alleged abuse or

neglect in foster care settings, and meaningful accountability systems designed to

assure acceptable performance. Op. 14; RA 1082-97 (visitation). RA 1104, 1107-

10; see generally RA 1097-110 (licensing). RA 1112-13; see generally RA 1110-

6 CRC conducted a longitudinal study of a random and representative sample of 484 DCF case files, equally divided into two cohorts of foster children followed for a period of thirty months (July 1, 2009 through December 31, 2011). The “entry cohort” included children who entered DCF foster care between July 1, 2009 and June 30, 2010. The “two-year cohort” consisted of children who had been in DCF foster care for two or more years as of July 1, 2009. Op. 11-12.


11

15 (investigations). RA 1115-20 (accountability). Cathy Crabtree, an expert in

child welfare agency management, likewise testified to DCF departures from

professional judgment with respect to its visitation practice and accountability

mechanisms, both vital “building blocks” of a minimally sound foster care system.7

RA 1192-209 (visitation); RA 1164-66, 1272-73, 1286-87, 1291, 1294, 1296

(accountability).

Visitation

Federal law, DCF policy, and widely adopted professional standards require

that children in foster care be visited monthly by their assigned caseworker. 42

U.S.C. § 624(f)(1)(A); RA 1507-08, 2254, 2663, 3698, 3825.8 DCF acknowledged

in a plan submitted to the federal government that “[r]egular visits from social

workers significantly improve positive safety and permanency outcomes for

children and families.” RA 2197; see also RA 1675. Olga Roche, now DCF’s

7 The four “building blocks” identified by Ms. Crabtree included (i) an adequate child welfare workforce; (ii) an array of foster homes, congregate facilities, and child and family services sufficient to meet client needs; (iii) competent accountability systems; and (iv) stable leadership. Op. 13 (citing Trial Tr. Vol. 11, Feb. 28, 2013 at 29:15-31:2 (RA 1164-66)). These “building blocks” apply across all categories of constitutional harm established in the record evidence. 8 Before resting their case, Plaintiffs proffered a list of contested exhibits, including some Child Welfare League of America (“CWLA”) and Council on Accreditation (“COA”) standards for admission. At trial, the district court had already admitted into evidence, over Defendants’ objection, some of these standards. RA 1344-46; see also RA 3646-49. The district court considered the CWLA and COA professional standards in its findings of fact. Op. 8 n.8. Further, the district court heard expert testimony regarding these standards from experts Cathy Crabtree and Arburta Jones.


12

Commissioner, at the time a Deputy Commissioner, acknowledged in an internal

email that “[s]eeing children, and assessing their safety and well-being, is one of

our basic responsibilities, if not the most important one. It is imperative that we

adhere to our policies regarding visits to families/children.” RA 2656. Yet, social

work expert Dr. Azzi-Lessing determined that Connor B.’s caseworker failed to

make required monthly visits, and that during the “two months that Connor [was]

in the foster home where he was sexually abused, he was not visited by his DCF

worker.” RA 1000.

Citing federal performance data, the district court found that “from 2008 to

2011, between 43% and 50% of children received monthly visits from the[ir]

caseworkers . . . which fell far below the 90% [federal] benchmark set for this

metric during that time period.” Op. 35 (citing Child Welfare Outcomes 2008-

2011 at 173; Trial Ex. 153 at 3).9 Indeed, the trial evidence showed, for fiscal year

2011, Massachusetts ranking 43rd among 51 reporting jurisdictions on this

measure. RA 3559.10 The agency’s own internal data showed substandard

9 At that time, the federal measure determined what percent of children had received all required monthly visits during the reporting period. Subsequently, the federal government changed this measure to calculate the percentage of required monthly visits across the foster care population that occurred in the reporting period. The federal government currently requires 90% performance on this latter measure and will require 95% performance on this latter measure beginning in federal fiscal year 2015. 42 U.S.C. § 624(f)(1)(A). 10 The district court received summary charts from Plaintiffs showing state-by-state performance across a number of child welfare outcomes. The court did not admit


13

visitation practices; for example, the monthly “Home Visit Report” submitted for

August 2012 reflected that 1,416 children with open DCF cases had not been

visited by their caseworker within the two prior months and 521 had not been

visited within the three prior months. RA 2172; see also RA 3507 (finding that

monthly caseworker-child visits in relation to the two-year cohort of children

occurred only 71.2% of the time during the thirty-month observation period).

Licensing

Professional standards require foster homes to be licensed, approved, or

certified according to state or local regulation in order to “protect children from

risks against which they would have little or no capacity for self-care and

protection.” RA 2264; see also RA 1098-99, 3816. Under Massachusetts law,

foster homes must be relicensed every two years and reassessed for safety in each

intervening year. 110 Mass. Code Regs. 7.113; RA 1526. Former DCF

Commissioner Angelo McClain’s testimony affirmed that timely licensing is a

fundamental aspect of the child welfare safety net. RA 1392-93; see also RA 1427-

28.

DCF prepares “Quarterly Foster Care Reports” which, among other things,

provide data reflecting how closely DCF’s licensing practice conforms to

regulatory requirements. The Quarterly Foster Care Reports for 2012 indicated that

the rankings shown in Plaintiffs’ charts, but later independently verified these rankings and included them in its findings. Op. 32 n.23.


14

only between 76.3% and 84.3% of annual license renewals or reassessments that

came due in that year were timely completed. RA 3212, 3220, 3228, 3231.11 This

substandard performance has been chronic. For example, licensing data compiled

by DCF two years earlier indicated that 27% of its departmental foster homes and

56% of its private agency homes were then overdue for licensing reassessments.

RA 2457. As Commissioner McClain admitted, such rates of non-compliance with

licensing requirements are not only unacceptable, but potentially unsafe. RA 1378-

79.

Investigations

Massachusetts law requires investigations of alleged child abuse or neglect

to be completed within 15 days of receiving a report. 110 Mass. Code Regs.

4.31(2). DCF’s Special Investigation Unit (“SIU”) is responsible for investigating

alleged maltreatment in foster care. The SIU Director confirmed that timely

investigations are important for safety. RA 275-76.12 DCF’s Deputy

Commissioner concurred: it “is absolutely important that [investigations] are

completed on a timely basis.” RA 770-71.

11 Safety expert Arburta Jones testified that 90% aggregate performance should be the floor for this safety measure. RA 1101-05. 12 The portions of the deposition testimony offered into evidence are indicated in highlighting on the transcripts. Where the district court struck testimony, or where Plaintiffs withdrew testimony, that testimony is crossed out.


15

Yet, the trial evidence demonstrated that SIU investigations have regularly

exceeded the allocated 15 days. For example, only 19.8% of such investigations

resulting in a substantiated report of maltreatment in care during the 12 months

ending March 31, 2012 were completed within the required 15 days. More than

30% of such investigations took more than 30 days, more than twice the allowable

time. (Trial Ex. 953, Maltreatment in Placement, Year Ending Mar. 31, 2012).

Moreover, the SIU Director testified that a management report, periodically

prepared to assess the timeliness of SIU’s investigations, had most recently shown

“[t]hat the majority [of investigations] are not completed on time.” RA 270-72.

Accountability

By federal law, DCF must maintain a quality assurance system “it will use to

regularly assess the quality of services . . . and assure that there will be measures to

address identified problems.” 45 C.F.R. § 1357.15(u); see also 45 C.F.R. §

1355.34(c)(3); RA 3836, 3842. DCF has maintained no credible quality assurance

system. As the district court found, “[t]here is at present a dearth of staff members

whose roles are dedicated to managing continuous quality improvement.” Op. 50.

Moreover, the evidence showed that Defendants have been aware of this

problem for years without addressing it. A plan DCF submitted to the federal

government for fiscal years 2010-2014 listed “Strengthen CQI Structures and

Processes” as an action step, acknowledging “[c]ontinuous quality improvement


16

structures and processes are fundamental to the Department’s ongoing monitoring

of our performance and outcomes. The Department recently conducted an

assessment of CQI teams in each Area Office and the results showed significant

variability in the presence and vitality of those teams.” RA 2208; see also RA

1666. An internal DCF memorandum likewise observed, “[t]he Quality

Improvement Unit has a major role to play in advancing [DCF] as a learning

organization, and improving child welfare practice and outcomes, yet of all the

Central Office units, it is the most poorly staffed.” RA 2396. The Assistant

Commissioner for Continuous Quality Improvement testified that DCF, as of

February 2012, was still employing only one manager with day-to-day

responsibility for CQI and acknowledged that additional staff was needed to fulfill

the agency’s quality assurance function. RA 174, 459-60, 462, 464-67; see also

RA 756-57.

Under federal law mandates, DCF must monitor the activities of its private

contractors “as necessary to ensure that Federal awards are used for authorized

purposes in compliance with laws, regulations, and the provisions of contracts or

grant agreements and that performance goals are achieved.” Circular No. A-133

(O.M.B.), §__.400(d)(3), 2007 WL 7141954, *22; 45 C.F.R. §§ 74.51(a), 74.26.

See also RA 3843. DCF contracts with 26 child placing agencies, which


17

collectively provide over 2,000 intensive foster homes, RA 2453-54, as well as

roughly 280 congregate care facilities, RA 1900-01.

In a 2010 letter to the state legislature, Commissioner McClain

acknowledged that “staffing resources at DCF that are dedicated to the review of

private agencies’ practices, compliance with regulations, programmatic quality

assurance review, etc. are not at a level one would expect for a state agency with a

purchase of service budget in excess of $350 million.” RA 2438. Two years later,

DCF’s Director of Foster Care Services testified that a single individual within

DCF was responsible for overseeing every private child placing agency, even

though “there are a number of intensive foster care contracts, and . . . the amount

of work it takes to support those agencies and assure quality is not a one-person

task.” RA 568-72. As DCF’s foster care services unit does not collect performance

data on its private providers, it cannot monitor aggregate performance in crucial

areas such as foster home visitation, caseworker caseloads, and placement

matching decisions. RA 591, 600-01, 605, 607-08, 610, 614-15. DCF’s Director of

Program Operations testified that congregate care providers could go three years or

more without an on-site monitoring visit and that even the remote desk audits, in

DCF’s contract monitoring plans, were “probably not happening all that often.”

RA 648, 650, 657; see also RA 2427-29.


18

Massachusetts Mentor (“Mentor”), one of the two largest private child

placing agencies, provides some 500 foster homes. RA 2453-54. Over the 12

months ending March 31, 2012, DCF investigators substantiated 16 incidents of

abuse or neglect of children in Mentor homes. (Trial Ex. 953). Months after the

January 2012 death of an infant in a Mentor foster home – which state

investigators attributed to unsafe sleeping practices due to Mentor not properly

training foster parents or its own caseworker staff – DCF’s contract monitoring

staff finally undertook an audit of Mentor’s operations. The audit determined that

Mentor had not been assuring the required caseworker training, producing accurate

reevaluation and relicensing studies, or maintaining adequate communication with

its foster parents. RA 3447-48, 3710-11.

II. REENTRY OF CHILDREN INTO FOSTER CARE

Federal law provides that state child welfare agencies must provide services

to help children in foster care and their families reunify “where safe and

appropriate.” 42 U.S.C. § 622(b)(8)(A)(iii)(I). As the district court noted, “[o]ne

of the principal ways to gauge success in this area is to appraise the rate at which

foster children who have exited the foster care system reenter it.” Op. 31. The

district court found, “the reported rates of reentry from federal fiscal years 2010

and 2011 . . . deviated fairly significantly from the national medians at the time.”

Op. 32-33. DCF’s reentry rates placed it 41st among 52 reporting jurisdictions in


19

2010 and 43rd in 2011. Op. 31-32. Commissioner McClain acknowledged that

reentry is “harmful to a child,” and that children who reenter foster care experience

trauma from being removed from their parents twice. He also acknowledged that

many of these children experienced the additional trauma of another incident of

abuse or neglect. RA 1309-10. Yet, he further testified, DCF had yet to “come up

with a solid plan on how we’re going to impact that measure.” RA 882-83.

Child welfare management expert Cathy Crabtree testified that DCF’s

reunification practice failed to meet accepted standards of professional judgment,

providing reasons. RA 1271-72. First, DCF caseworkers have chronically failed to

provide timely 45-day assessments of child and family needs, as Massachusetts

regulations require in order to support family preservation. 110 Mass. Code Regs.

5.02. RA 1478. As confirmed in the “Monthly Operations Statistical” (“Most”)

Report used by DCF, in state fiscal years 2010, 2011, and 2012, such assessments

were timely in only 55.9%, 58.8%, and 67.7% of cases, respectively. RA 3103,

3115, 3127. Second, DCF caseworkers have failed to make the regular visits with

parents required by policy to facilitate sound and timely permanency outcomes.

RA 1507-08, 3103, 3115, 3127. Most Reports confirmed that only 59.6% of

caseworker-parent visits took place in state fiscal year 2012 and only 59.5% had

occurred in state fiscal year 2013 year-to-date. RA 3127, 3133. Third, DCF

caseworkers have failed to ensure that children in foster care visit with their


20

parents, as required by policy to facilitate sound permanency outcomes. RA 1218-

19, 3489. CRC’s case review found that only 37.6% of children in the entry cohort

had all required monthly visits with parents during the period under review; 13.4%

of the children had none at all. RA 3489.

Ms. Crabtree testified that these reunification practices and other important

child welfare practices are impacted by burdensome caseloads. She explained that

reasonable caseloads are essential to sound casework because the number of

children assigned to caseworkers “directly impacts their ability to get their work

done day to day.” RA 1166-67. Citing standards promulgated by the Child

Welfare League of America and Council on Accreditation, Ms. Crabtree opined

that DCF’s caseload standard of 18 families per caseworker departed from

professional judgment. RA 1192. As DCF itself has acknowledged, it is “extremely

difficult for workers to complete all the required tasks associated with their 18

assigned families,” and that “compromises the Commonwealth’s ability to ensure

the safety of all the children [it is] responsible for.” RA 2625. The trial evidence

showed that, as of August 2012, 390 DCF caseworkers had caseloads in excess of

the 18:1 standard, affecting 7,481.25 cases. RA 3238-47 (sum of “Wgt Caseload

Total” column), 3248. During the first eight months of 2012, caseworkers with

caseloads of 20 or more ranged from 101 (in July) to 209 (in May). RA 3446.


21

III. MULTIPLE PLACEMENT MOVES

DCF has long acknowledged that “[p]lacement stability is . . . a key factor in

promoting and maintaining a child’s well-being” and that “[t]he initial removal of

a child from their parents is one of the most traumatic events a child can

experience, and subsequent moves to different placement settings add additional

trauma and further stressors that impede a child’s positive growth and

development.” RA 2575; see also RA 1002-03, 2585. Social work expert Dr.

Lenette Azzi-Lessing testified that there is a “vicious cycle that we see when

children are moved from placement to placement in that every move presents a

traumatic experience . . . and that children often react to that kind of trauma and

loss by behaving in difficult and inappropriate ways,” and “the more difficult and

inappropriate the behavior becomes, the harder it is to maintain a child in

placement.” RA 1003. Yet, as of 2012, the Named Plaintiff case files showed that

Andre had experienced eight placements, Camila 31 placements, Connor 12

placements, Adam 22 placements, and Seth five placements (in just the first 16

months he was in DCF custody). RA 1011, 1040, 1042, 1054; Trial Ex. 1077; see

also RA 996, 1012, 1016-19, 1022-23. Dr. Azzi-Lessing testified, with respect to

Connor B., for example, that mental health professionals found him “in a very

fragile state after having been raped in [a] foster home, that what he needed was

stability, that his mental health at that point was unstable” and that “moving from


22

one foster home to another to another in just a matter of days had to be traumatic to

him.” RA 996.

The district court found that placement stability “often proves elusive in

Massachusetts.” Op. 26. Federal data demonstrated that Massachusetts ranked

forty-seventh lowest among 52 reporting jurisdictions on the federal composite

measure for placement stability both in fiscal years 2010 and 2011. RA 3555,

3576. Among those in DCF custody during federal fiscal year 2011, 1700 children

(19.7%) had experienced six or more placements during their current foster care

episode. RA 3264.

As the district court found, “[t]hese persistent placement problems can

primarily be traced to a single root cause: there is a severe shortage in the number

of foster homes in Massachusetts.” Op. 29. It observed that “[s]taffing shortfalls

contribute substantially to the drag in foster home recruitment.” Id. Child welfare

management expert Cathy Crabtree testified that DCF fails to comport with federal

law, professional standards, and DCF policy due to its admittedly insufficient

recruitment and retention activities. RA 1246; see also 42 U.S.C. § 622(b)(7); RA

1528-29, 3700, 3828.

DCF uses short term placements, such as hotline homes, which are intended

to be used only as emergency placements. (Deposition of Raymond Pillidge, Mar.

7, 2012 at 184-85). The district court found that these short-term placements


23

“disrupt the lives of children in care and are often used for purposes other than

those for which they were designed.” Op. 26-27. As the evidence showed, DCF

has not acted adequately to rectify these ills. For example, DCF Commissioner

McClain acknowledged to his staff in 2010 that DCF’s “‘hotline home/night-to-

night’ system” is “not good for kids.” RA 2400. Some three years later, he

testified that DCF had not come up with a systemic solution for hotline home

problems and he “would have anticipated that we would have gotten to that

earlier.” RA 1361-64.

The trial evidence also established pervasive placement instability within the

pool of intensive foster care (“IFC”) homes supplied by private child placing

agencies.13 A March 2011 DCF study, for example, found “lateral moves” from

one IFC home to another had substantially increased between 2007 and 2010,

concluding it represented “significant churning within the IFC system” and that

“[u]pfront efforts to better match the unique needs of children with the specific

qualities of IFC homes may reduce lateral movement within IFC.” RA 1720. More

than a year after this report, DCF Commissioner McClain testified he had not yet

“‘Directed’ with a capital D” anyone to prepare a strategy for addressing IFC

placement instability. RA 945-46.

13 Intensive foster care placements provide therapeutic services and supports in a family home setting for children with higher needs. (Trial Ex. 385 at 1).


24

IV. INADEQUATE MEDICAL SERVICES

Federal law requires that every child entering foster care receive timely

screening and evaluation under Early and Periodic Screening, Diagnostic, and

Treatment (“EPSDT”) standards. Op. 36-37. In addition, as a report commissioned

by DCF observed: “The absence of these medical examinations can have a

detrimental effect on the health and development of children in out of home

placement.” RA 2608.

The district court determined that “foster children in Massachusetts

commonly receive medical screenings in an untimely fashion, if at all,” citing

aggregate data from 2011 indicating that just 12.1% of foster children received

timely seven-day medical visits and only 7.1% received timely 30-day medical

visits. Op. 37. Since 2008, DCF has set compliance targets at only 50% for the

required seven-day and 30-day medical visits, and has consistently missed even

those modest benchmarks; performance has ranged from 5.1% to 29.6% on seven-

day visits and from 6.1% and 20.7% on 30-day visits. RA 3102-37. (See also Trial

Ex. 954). DCF Commissioner McClain acknowledged that even if DCF had met its

50% targets, performance would have been too low. RA 1426.

Massachusetts state law and DCF policy require caseworkers to maintain

“medical passports” for every child in state custody, a document regularly updated

with relevant information regarding treatment interventions and responses to


25

medication. Op. 37. The district court found it “rare to have medical information

that is fully complete,” citing findings from the CRC case records review that only

52.1% and 73.7% of children in the entry cohort and two-year cohort, respectively,

were timely provided medical passports. Op. 38. For children in the former cohort,

CRC found no medical passport or indication that a medical passport had been

provided to the foster parent in 44.3% of these foster care placements. RA 3469. A

DCF management report from 2008 indicated that approximately 60% of the 5,201

child cases appearing for a foster care review had either (i) no medical passport in

the DCF case file or supplied at the review or (ii) an out-of-date or incomplete

medical passport. RA 3022-24.

V. LACK OF PERMANENCY FOR CHILDREN

The district court found that “[b]ecause substitute care is a less-than-optimal

outcome for children, achieving permanency for children in foster care is among

DCF’s highest-priority objectives.” Op. 30. As noted by the American Academy

of Pediatrics, “[c]hildren who have experienced abuse or neglect have a heightened

need for permanency, security, and emotional constancy and are, therefore, at great

risk because of the inconsistencies in their lives and the foster care system. Every

effort should be made to rapidly establish a permanent placement for the child.”

RA 3535. Yet, as of 2012, Named Plaintiffs Connor B. and Seth T. had been in

custody for periods of five and seven years, respectively, without being restored to


26

a permanent family home. RA 1059-60. Named Plaintiff Adam S. reached the age

of majority, after 10 years in custody, without a permanent family. RA 1021-22,

1060.

Citing the federal measure assessing adoption performance, the district court

found that DCF ranked 47th lowest among 52 reporting jurisdictions in timeliness

of adoption in federal fiscal year 2010 and 49th lowest in 2011, noting that the

median length of time for foster children in Massachusetts to achieve adoption in

fiscal year 1999 was 49.28 months. Op. 33-34. DCF Commissioner McClain

acknowledged that, even with an improved median length of time to adoption of

34.6 months, DCF ranked 44th lowest among 52 jurisdictions some 10 years later

in federal fiscal year 2011. RA 1316-17, 3567. Acknowledging that DCF’s

adoption performance had declined in the preceding 30 months, DCF Deputy

Commissioner Olga Roche testified that the new Patrick Administration “came in,

and it was not a priority, and we sort of didn’t pick it up again.” RA 817-20.

Child welfare management expert Cathy Crabtree testified that DCF fails to

meet accepted standards of professional judgment in its adoption practice. RA

1268. Among other factors, she attributed DCF’s poor adoption performance to the

unreasonably large caseloads assigned to caseworkers responsible for conducting

permanency work. (Trial Tr. Vol. 12, Mar. 1, 2013 at 45-48). A DCF Deputy

Commissioner testified that the caseload standard of 10 to 12 individual children


27

per adoption worker promulgated by the Child Welfare League of America is the

appropriate standard to apply to DCF adoption workers. RA 325, 330-32, 3847-49.

Yet, DCF has applied a caseload standard of 18 cases per worker to adoption

caseworkers, each case potentially involving a sibling group of two or more

children with a goal of adoption. RA 332, 365, 369-70, 380-82. The DCF Deputy

Commissioner further testified that it would not be surprising to see DCF adoption

caseworkers carrying over thirty children on their caseloads. RA 334-36. DCF’s

monthly Goal of Adoption Report routinely has reported case assignments for

individual adoption workers in excess of twenty children. (Trial Ex. 81).

VI. INADEQUATE SIBLING PLACEMENT AND VISITATION

Federal law, state law, state regulations, and DCF policy require that sibling

groups removed to foster care be placed together, unless it is against their best

interests. When not placed together, sibling groups must be provided regular

contact. 42 U.S.C. § 671(a)(31); Mass. Gen. Laws ch. 119, § 23(c); § 26B(b); 110

Mass. Code Regs. 7.101(4); RA 1507-08, 1517. Record evidence showed that

maintenance of sibling relationships “can nurture a sense of stability and continuity

in the lives of foster youth. Oftentimes, children who are abused or neglected by

their caregivers have especially strong ties to one another and separating them may

cause additional trauma.” RA 3637 (citations omitted) (internal quotation marks

omitted). Plaintiffs’ social work expert, Dr. Lenette Azzi-Lessing, testified to a


28

common theme in the Named Plaintiff files she reviewed: “DCF’s failure to

support and maintain the important sibling relations, relationships between

children in custody and their siblings.” RA 1056-57. Dr. Azzi-Lessing explained

with respect to Adam S., for example, that the lack of contact with his sisters was

“obviously of concern” because he had “so little stability in his life” and because

his parents and grandfather were “out of the picture.” RA 1024-25.

Citing data generated in the CRC case records review, the district court

found only 69% of children in the entry cohort had been placed with at least one

sibling for at least part of their time in foster care. Op. 25-26. The district court

found “[t]he rate of sibling placement for children in the two-year cohort was

markedly worse: only 49.9% of children were placed with at least one sibling, and

a mere 18.7% of children were placed with all of their siblings.” Op. 26.

Moreover, the “[r]easons for the lapses in sibling placements were documented in

only 53.8% of cases in the entry cohort and 38.4% of cases in the two-year

cohort.” Id.

With respect to sibling visitation, the district court found, “[i]f one were to

extrapolate from the results of the CRC study, it would appear that child-family

visits are a relatively rare occurrence: only 20.9% and 37.6% of children in the

entry cohort received consistent monthly visits from siblings and parents,

respectively, for the entirety of the thirty-month review period.” Op. 25. The CRC


29

study demonstrated that 61.7% of children in the two-year cohort had no sibling

visits recorded during the period under review and only 5% had visited a sibling in

at least half of all months in the review period. RA 3525.

DCF Commissioner McClain acknowledged that currently there is no

regular management report tracking the incidence of sibling placement together or

the rate of sibling visitation. RA 1444-45. Plaintiffs’ expert, Ms. Crabtree, testified

that DCF practice in relation to sibling visitation departs from standards of

accepted professional judgment. RA 1215.

SUMMARY OF THE ARGUMENT

This case is about the fundamental obligation of the state, when it acts in

loco parentis, to assure the basic safety and well-being of the abused and neglected

children taken into its custody for safekeeping. The trial evidence established that

DCF for years has lacked the foundational structures required to meet this

obligation. DCF’s own performance data demonstrates that children have suffered

harm, and that all class members continue to face the ongoing risk of harm, as a

result. Despite longstanding knowledge of DCF’s failings, Defendants have not

made the corrections necessary to fulfill the Commonwealth’s indispensable role

as protector of these children.

Nonetheless, the district court sent Plaintiffs away without a remedy,

holding them to a new and severe articulation of the culpability standard applicable


30

to their substantive due process claims, a standard so extreme that the Court

likened it to a “virtually unscalable” climb. Op. 83.

The “new, two-pronged” culpability standard applied by the district court –

requiring that “Defendants’ conduct represented a substantial departure from

accepted professional judgment . . . and that such conduct shocks the conscience,”

Op. 66 – violates Supreme Court precedent setting a lesser standard for a

substantive due process claim in the non-penal, custodial setting. Youngberg v.

Romeo, 457 U.S. 307 (1982). The district court compounded this legal error by

misinterpreting the professional judgment prong to require a “wanton

abandonment” of caretaking responsibilities, Op. 68, though this standard, as

defined by the Supreme Court, contains no such mental state. Further aggravating

these errors of law, the district court failed to determine, as was its duty under

Youngberg, that Defendants’ challenged conduct resulted from the affirmative

exercise of professional judgment, notwithstanding its own finding that Plaintiffs

established numerous areas in which DCF has failed to comport with accepted

standards. Then, once more exacerbating its erroneous application of the

culpability standard, the district court failed to apply precedent providing that

“shocks the conscience” is a flexible test, County of Sacramento v. Lewis, 523 U.S.

833, 850-51 (1998), to be calibrated to fit the circumstances presented and applied

this second prong of the new culpability standard in its most extreme articulation.


31

Ultimately, Plaintiffs, vulnerable children who are wholly dependent on the state

for their safety and well-being, were erroneously held to a standard of proof no less

burdensome than the standard to be met by an incarcerated felon.

The district court committed reversible error in two additional respects in

relation to Plaintiffs’ constitutional claims. First, it erred in finding that “Plaintiffs

have not succeeded in showing that the [substantive due process] deprivations

complained of were felt class-wide.” Op. 74. The court failed to address the

evidence of pervasive, actual harm that has befallen children. Further, it failed to

take into consideration the common risks of harm to all children in DCF custody

posed by the system’s manifest deficiencies. Here, Plaintiffs seek purely

prospective injunctive relief, and the abatement of ongoing risks of harm lies at the

very heart of their claims for legal redress.

Second, disregarding case precedent providing that a lack of funding cannot

excuse constitutional deprivations, the district court cast aside its sweeping finding

of the numerous problems “plaguing” DCF and “decline[d] to substitute its

judgment for that of duly elected Massachusetts lawmakers, who properly are

endowed with the power to direct the reserves of the Commonwealth’s coffers to

whatever issue of public import that they see fit.” Op. 67, 72. In so doing, the

district court erroneously permitted fiscal considerations to infect its consideration

of Plaintiffs’ substantive due process claims and to excuse established


32

constitutional deprivations. In relation to Plaintiffs’ procedural due process claims,

it likewise excused the abject failure by DCF to provide meaningful hearings to

children who have been deprived of state-created entitlements, finding that “once

again, limited resources appear to be the properly attributable culprit.” Op. 78.

Finally, in denying Plaintiffs’ federal statutory claim, the district court

looked past uncontradicted record evidence of a pervasive statutory violation – in

this instance, DCF’s incomplete or entirely unavailable case plans – without any

valid legal basis, once again assigning blame for this failing to “financial and

administrative hardships.” Op. 82.

The district court committed substantial legal error in misinterpreting the

substantive due process standard and in essentially treating fiscal constraints as a

defense to Plaintiffs’ claims. But the court’s ruling emanates from a more

fundamental misapprehension. The district court made plain its view that federal

courts should virtually never provide a remedy for widespread constitutional

violations in executive branch agencies, particularly if that remedy would require

additional expenditure by politicians reluctant to open the purse strings for their

most vulnerable constituents. However, the Supreme Court did not permit cost to

delay the desegregation of public parks and recreational facilities. See Watson v.

City of Memphis, 373 U.S. 526, 537 (1963). The Court ruled that prison officials

must provide medical care for the incarcerated, without concern for the number of


33

doctors and nurses that would need to be hired. Estelle v. Gamble, 429 U.S. 97,

103 (1976). The cost of building a state bureaucracy of public defenders was of no

consequence when the Court ruled that the indigent have a fundamental right to the

assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). This

case is hardly distinguishable. Constitutional and statutory violations are rampant

in DCF foster care. If this Court were to accept the district court’s view that federal

judges must yield to executive and legislative prerogatives when such priorities are

inconsistent with the state’s constitutional obligations to the state’s most helpless

citizens, the consequences would be far-reaching.

ARGUMENT

I. STANDARD OF REVIEW

The issues presented in Sections II.A, III, V, and VI are purely legal issues

that address the district court’s conclusions of law and are therefore subject to de

novo review. See Marina Bay Realty Trust LLC v. United States, 407 F.3d 418, 423

(1st Cir. 2005) (citing Mullin v. Town of Fairhaven, 284 F.3d 31, 36-37 (1st Cir.

2001)).

In Section II.B, Plaintiffs’ arguments address the district court’s rulings as to

class-wide harm and whether Defendants’ conduct substantially departed from

accepted professional judgment and was conscience-shocking. In this Circuit,

mixed questions of law and fact are subject to a continuum of review. See Servicios


34

Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc., 145 F.3d 463, 469 (1st

Cir. 1998). Here, the issue should be placed on the de novo end of the continuum,

because Plaintiffs are not challenging any of the findings contained in the district

court’s “Findings of Fact” section, but rather argue that the district court ignored or

misinterpreted controlling case law, as asserted in both Sections II.A and II.B, and

misapplied law to fact. See id. (holding that mixed questions that are “law-

dominated” receive plenary review); see also United States v. Poland, 562 F.3d 35,

37 (1st Cir. 2009) (stating that district court’s misinterpretation of the law is

subject to de novo review). Appellate courts have the “duty to look carefully at

district court decisions to detect infection from legal error,” LoVuolo v. Gunning,

925 F.2d 22, 25 (1st Cir. 1991) (internal quotation marks omitted), and are not

bound by the clear error standard when a lower court has based its rulings upon “a

mistaken impression of applicable legal principles,” Inwood Labs, Inc. v. Ives

Labs, Inc., 456 U.S. 844, 855 n.15 (1982). This is particularly true where such a

mistake “may infect a so-called mixed finding of law and fact.” Uno v. City of

Holyoke, 72 F.3d 973, 978 (1st Cir. 1995) (quoting Thornburg v. Gringles, 478

U.S. 30, 106 (1986)).14

14 Even if this Court were to review portions of Plaintiffs’ arguments in Section II.B under the more deferential “clearly erroneous” standard, a review of the evidence presented at trial would leave this Court with “the definite and firm conviction that a mistake has been committed.” United States v. Candelaria-Silva, 714 F.3d 651, 656-59 (1st Cir. 2013) (internal quotation marks omitted).


35

In Section IV, with respect to whether the district court erred in denying

Plaintiffs’ procedural due process claim, Plaintiffs assert an error of law, meriting

de novo review, and a factual error subject to a “clearly erroneous” standard.

II. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE RECORD ON PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIMS.

A. The District Court Erred in Applying a “New, Two-Pronged Approach” to Plaintiffs’ Substantive Due Process Claims, in Contravention of Controlling Case Law.

In concluding that Plaintiffs did not establish a prima facie case on their

substantive due process claims, the district court adopted a “new, two-pronged

approach,” requiring Plaintiffs to show both that “‘Defendants’ conduct

represented a substantial departure from accepted professional judgment, which

deprived them of conditions of reasonable care and safety, and that such conduct

shocks the conscience.’” Op. 66 (quoting Connor B., 771 F. Supp. 2d at 162-63).15

This was an error of law. Where, as here, Plaintiffs are foster children in the

custody of the Commonwealth and are dependent on Defendants for their safety

and welfare, proof of substantial departures from professional judgment is the

15 The district court held at the motion to dismiss stage that a substantial departure from accepted professional judgment may satisfy the culpability standard “under some circumstances but not others.” Connor B., 771 F. Supp. 2d at 163. In ruling on Defendants’ motion for judgment on the record, the trial court held that even if it had “concluded that DCF practice did indeed substantially depart from professional judgment,” the separate shocks-the-conscience prong would still apply. Op. 73.


36

appropriate articulation of the shocks-the-conscience standard and itself satisfies

the substantive due process culpability standard. Requiring Plaintiffs to go beyond

proof of substantial departures and to meet a separate, “extremely high” burden of

shocking the court’s “impressionable conscience,” Op. 73, constituted error.

Application of this standard resulted in what the district court itself acknowledged

to be “a virtually unscalable peak” that, unsurprisingly, it found Plaintiffs failed to

ascend. Op. 83. This standard effectively shuts the courthouse door on innocents in

state custody who seek to remedy substantive due process violations.

i. Individuals Committed to State Custody for Non-Penal Reasons Are Entitled to a Culpability Standard that Recognizes that They Have Been Deprived of the Ability to Care for Themselves.

The district court acknowledged that “individuals consigned to the state’s

care have a constitutionally guaranteed right to ‘basic human needs [such as] food,

clothing, shelter, medical care, and reasonable safety.’” Op. 63 (alteration in

original) (quoting DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S.

189, 200 (1989)). Supreme Court jurisprudence on substantive due process claims

of individuals in state custody reflects an important distinction between

incarceration, which requires a higher showing of deliberate indifference, and

involuntary commitment, which requires a lesser showing of substantial departure

from professional judgment.


37

In Estelle v. Gamble, the Supreme Court held that in the context of criminal

incarceration, where an individual “cannot by reason of the deprivation of his

liberty, care for himself,” the proper standard to apply to a prisoner’s Eighth

Amendment claim was a “deliberate indifference” standard. 429 U.S. 97, 104, 106

(1976). Six years later in Youngberg v. Romeo, the Supreme Court adopted a

different approach to a substantive due process claim of an individual involuntarily

committed to a state mental institution, holding that “[p]ersons who have been

involuntarily committed are entitled to more considerate treatment and conditions

of confinement than criminals whose conditions of confinement are designed to

punish.” 457 U.S. at 321-22. The standard “reflects the proper balance between

the legitimate interests of the State and the rights of the involuntarily committed to

reasonable conditions of safety and freedom from unreasonable restraints,” and

requires “the decision by the professional [to be] such a substantial departure from

accepted professional judgment, practice, or standards as to demonstrate that the

person responsible actually did not base the decision on such a judgment.” Id. at

321, 323. The Youngberg professional judgment standard has been widely adopted

by courts in a variety of situations involving harm befalling individuals in state

custody. The First Circuit has applied the standard to, for example, residents in

juvenile detention facilities, Santana v. Collazo, 793 F.2d 41, 43, 45 (1st Cir.


38

1986), and claims by involuntarily committed, intellectually disabled individuals,

Doe v. Gaughan, 808 F.2d 871, 876 (1st Cir. 1986).

As the district court recognized, “no First Circuit authority explicitly

prescribes the engagement of any particular standard” for proving a substantive

due process claim in the foster care context. Op. 66-67.16 However, where foster

children in other jurisdictions have sought purely injunctive relief for substantive

due process violations, federal courts have applied the Youngberg professional

judgment standard; for, as the Third Circuit reasoned, “children in foster care [are]

analogous to the institutionalized mental patients at issue in Youngberg v. Romeo.”

Winston ex rel. Winston v. Children & Youth Servs. of Del. Cnty., 948 F.2d 1380,

1390 (3d Cir. 1991); see also D.G. ex rel. Strickland v. Yarbrough, No. 08-CV-

074-GKF-FHM, 2011 WL 6009628, at *14 (N.D. Okla. Dec. 1, 2011)

(unpublished); Kenny A. ex rel. Winn v. Perdue, No. 1:02-cv-1686-MHS, 2004 WL

5503780, at *3-4 (N.D. Ga. Dec. 13, 2004) (unpublished); Brian A. ex rel. Brooks

v. Sundquist, 149 F. Supp. 2d 941, 953-54 (M.D. Tenn. 2000); Charlie H. v.

Whitman, 83 F. Supp. 2d 476, 507 (D.N.J. 2000); Eric L. ex rel. Schierberl v. Bird,

16 The First Circuit applied the deliberate indifference standard in the context of foster care in J.R. ex rel. Raymond v. Gloria, 593 F.3d 73, 79-80 (1st Cir. 2010). However, as the district court here recognized, the plaintiffs in that case sought only damages for individual, not class-wide harms, and “neither of the parties apparently raised the issue of Youngberg’s professional judgment standard, and therefore, the court never addressed Youngberg’s applicability.” See Connor B., 771 F. Supp. 2d at 162 n.5; see also Op. 67 n.42.


39

848 F. Supp. 303, 306-07 (D.N.H. 1994); LaShawn A. v. Dixon, 762 F. Supp. 959,

991-98 (D.D.C. 1991); B.H. v. Johnson, 715 F. Supp. 1387, 1394 (N.D. Ill. 1989);

Doe ex rel. Johanns v. N.Y.C. Dep’t of Soc. Servs., 670 F. Supp. 1145, 1178-79

(S.D.N.Y. 1987).

Courts have generally applied the higher deliberate indifference standard in

cases seeking damages, which Plaintiffs do not do here. This is because, where

individual government actors are accused of perpetrating individual injury, the

professional judgment standard might deter them from seeking government

employment or have a chilling effect on their professional conduct. See Kenny A.,

2004 WL 5503780, at *4; LaShawn A., 762 F. Supp. at 996 n.29; see also L.J. ex

rel. Darr v. Massinga, 838 F.2d 118, 121 (4th Cir. 1988) (“The element of

deliberate indifference may be a substantial factor in the aspect of this case which

seeks monetary recovery, but it is of little moment with regard to injunctive relief

in futuro if plaintiffs can prove that defendants are not acting lawfully.”),

abrogated on other grounds by Suter v. Artist M., 503 U.S. 347 (1992).17 These

17 In actions for damages in the foster care context, a number of circuit courts have applied the deliberate indifference standard, albeit often without expressly considering which standard should be applied. See, e.g., Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 175 (4th Cir. 2010); H.A.L. ex rel. Lewis v. Foltz, 551 F.3d 1227, 1228, 1231-32 (11th Cir. 2008); see also Henry A. v. Willden, 678 F.3d 991, 1000-01 (9th Cir. 2012) (applying deliberate indifference standard to action by foster children seeking both damages and injunctive relief without considering applicability of professional judgment standard); Nicini v. Morra, 212 F.3d 798, 811 n.9 (3d Cir. 2000) (applying the deliberate indifference


40

considerations are not at issue here, as Plaintiffs are seeking only injunctive relief

intended to cure systemic failures.

ii. In the Foster Care Context, a Substantial Departure from Professional Judgment Is Conscience-Shocking.

The district court cited County of Sacramento v. Lewis, 523 U.S. 833 (1998),

as justification for requiring Plaintiffs to show conscience-shocking conduct above

and beyond substantial departures from professional judgment. See Connor B., 771

F. Supp. 2d at 162-63; Op. 66-67. However, Lewis did not overturn Youngberg. It

does not require more than evidence of substantial departures in order to meet the

substantive due process culpability standard in cases brought by involuntarily

committed individuals.

In Lewis, the Supreme Court held that a police officer’s deliberate

indifference during a high-speed police chase did not shock the conscience because

there was no “intent to harm [plaintiff] physically or to worsen [his] legal plight.”

523 U.S. at 854. At the same time, however, the Court explained that conscience-

shocking conduct must be defined by the context in which a particular claim arises;

in certain situations, a showing of deliberate indifference – or a substantial

standard only after the parties declined the court’s invitation to consider the professional judgment standard). The Tenth Circuit has applied the professional judgment standard to damages actions in the foster care context. See Schwartz v. Booker, 702 F.3d 573, 583 (10th Cir. 2012).


41

departure from professional judgment – suffices, without more, to shock the

conscience.

The Court explained that that the “point of the conscience shocking” could,

in certain circumstances, be reached “when injuries are produced with culpability

falling within the middle range, following from something more than negligence

but less than intentional conduct.” Id. at 849 (internal quotation marks omitted).

For example, since deliberate indifference is sufficient to demonstrate an Eighth

Amendment violation by convicted prisoners under Estelle, and “the due process

rights of a [pretrial detainee] are at least as great as the Eighth Amendment

protections available to a convicted prisoner,” a pretrial detainee may establish

substantive due process violation by demonstrating deliberate indifference. Id. at

849-50 (alteration in original).

However, deliberate indifference “may not be so patently egregious” in

other, non-custodial environments. Id. A fatality suffered in a high-speed car chase

such as the one at issue in Lewis is not the same as injury suffered while in state

custody because in the “custodial situation of a prison, forethought about an

inmate’s welfare is not only feasible but obligatory under a regime that

incapacitates a prisoner to exercise ordinary responsibility for his own welfare.”

Id. at 851-53. Where a claim arises from normal custody – and not from “response

to a violent disturbance” – there is no “substantial countervailing interest” that


42

“excuse[s] the State from making provision for the decent care and protection of

those it locks up.” Id. at 851-52.

For the same reasons, the Youngberg professional judgment standard defines

what is conscience-shocking as to the treatment of those involuntarily committed.

See id. at 852 n.12 (noting that, as to involuntarily committed individuals,

Youngberg’s professional judgment standard “can be categorized on much the

same terms” as the deliberate indifference standard applied to prisoners or pretrial

detainees because “[t]he combination of a patient’s involuntary commitment and

his total dependence on his custodians obliges the government to take thought and

make reasonable provision for the patient’s welfare”).

Consistent with this view, this Circuit has held that an individual in the

state’s custody through no fault of his own did not need to separately prove

conscience-shocking conduct in order to demonstrate a substantive due process

violation. In Davis v. Rennie, an involuntarily committed mental patient was

punched in the head during a physical restraint at a state hospital. 264 F.3d 86, 91

(1st Cir. 2001). The defendants argued that the trial judge should have instructed

the jury that it could impose liability for a substantive due process violation only if

it found that defendants’ conduct shocked the conscience. Id. at 97, 99. The First

Circuit rejected this, holding that Youngberg provided “precedent for subjecting

the conduct of a mental health worker to a more exacting standard than that of a


43

prison guard controlling a riot or a police officer chasing a fleeing car.” Id. at 99-

100 (citing Youngberg, 457 U.S. at 321-22). The plaintiff was “in the state’s

custody because of mental illness, not culpable conduct, and the trial court’s

decision to reject the ‘shocks the conscience’ standard is consistent with this

distinction.” Id. In rejecting the argument that an involuntarily-committed

individual must separately show that his mistreatment shocks the conscience, the

First Circuit in Davis confirmed that Lewis did not create an additional shocks-the-

conscience burden as applied to persons committed to state custody. See also

Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011) (affirming preliminary injunction

for civil detainee on Eighth Amendment and Fourteenth Amendment claims based

both on the Eighth Amendment’s deliberate indifference standard and the

Youngberg professional judgment standard without any reference to the need for

the detainee to separately prove conscience-shocking conduct).

Thus, in the custodial context, once a court determines that either deliberate

indifference or professional judgment is the proper standard to apply, proof

satisfying that standard shocks the conscience and establishes a substantive due

process violation.18 See Lewis, 523 U.S. at 850 (with respect to pretrial detainees,

18 In adopting the two-pronged standard, the district court placed reliance on J.R. ex rel. Raymond v. Gloria, 593 F.3d 73 (1st Cir. 2010). However, in J.R., this Circuit held that plaintiffs’ evidence “did not show the defendants acted even with deliberate indifference,” 593 F.3d at 80, and therefore did not issue a holding as to whether deliberate indifference rises to the conscience-shocking level in the foster


44

deliberately indifferent conduct “must” be enough “to satisfy the fault requirement

for due process claims based on the medical needs of someone jailed while

awaiting trial”).

Indeed, decisions from federal courts of appeals throughout the country have

construed Lewis as holding that where a specific standard – such as deliberate

indifference or substantial departures from professional judgment – applies, this

more specific standard is an articulation of shocks-the-conscience and satisfies the

substantive due process culpability requirement. See, e.g., Shreve v. Franklin

Cnty., 743 F.3d 126, 134 (6th Cir. 2014) (where “defendants are afforded a

reasonable opportunity to deliberate . . . [,] their actions will be deemed

conscience-shocking if they were taken with deliberate indifference towards the

plaintiff’s federally protected rights” (alterations in original)); Ammons v. Wash.

Dep’t of Soc. & Health Servs., 648 F.3d 1020, 1027-36 (9th Cir. 2011) (stating that

the Supreme Court “approvingly cited the Youngberg professional judgment

standard” in Lewis and applying the Youngberg standard without separately

care context. In addition, the circumstances of the J.R. case are distinguishable from the case at hand. See supra n.16. The district court also placed reliance on Martínez v. Cui, 608 F.3d 54, 64 (1st Cir. 2010). See Connor B., 771 F. Supp. 2d at 163; Op. 65. However, Martínez does not speak to the question of whether, in a custodial context, a substantial departure from professional judgment is sufficient to demonstrate conscience-shocking conduct. Indeed, Martínez did not even involve plaintiffs who were in state custody, but rather an individual who claimed that a doctor employed by the state committed sexual assault. See Martínez, 608 F.3d at 63-64.


45

requiring conscience-shocking conduct); Bolmer v. Oliveira, 594 F.3d 134, 142-45

(2d Cir. 2010) (district court did not err by applying medical standards test, which

examines whether civil commitment decision is based on criteria “substantially

below the standards generally accepted in the medical community,” instead of

determining whether defendant’s conduct “shocked the conscience” under Lewis

because medical standards test “itself measures what is conscience shocking in this

context”); Smith v. District of Columbia, 413 F.3d 86, 93 (D.C. Cir. 2005) (noting

that in “certain limited circumstances” where the state has “affirmative duties of

care and protection with respect to particular individuals,” such as prisoners and

mental patients, “governmental ‘deliberate indifference’ will shock the conscience

sufficiently to violate due process”). But see Schwartz v. Booker, 702 F.3d 573,

583 (10th Cir. 2012) (articulating the substantive due process test as also requiring

that the defendants’ conduct shock the conscience).

Furthermore, in cases seeking purely injunctive relief in the foster care

context, courts have almost always adopted the professional judgment standard

without applying a separate shocks-the-conscience requirement. See, e.g., Winston,

948 F.2d at 1390-92; Kenny A., 2004 WL 5503780, at *2-5; Brian A., 149 F. Supp.

2d at 952-54; Charlie H., 83 F. Supp. 2d at 504-08; Eric L., 848 F. Supp. at 306-

07; LaShawn A., 762 F. Supp. at 996; Doe ex rel. Johanns, 670 F. Supp. at 1178-

86. Cf. M.D. ex rel. Stukenberg v. Perry, 294 F.R.D. 7, 35-36 (S.D. Tex. 2013)


46

(noting that courts have “articulated culpability standards to further define” the

shocks-the-conscience test). But see D.G., 2011 WL 6009628, at *14 (requiring

abdication of professional judgment to shock the conscience).

Here, the district court held that even where a vulnerable population of foster

children can show that their state caretakers have substantially departed from

accepted professional judgment, subjecting all children in their care to an ongoing

risk of harm, they have not satisfied the substantive due process culpability

standard. Such a result turns Youngberg on its head and renders the substantive due

process right to protection from harm to which this population is entitled a virtually

empty vehicle for relief. The district court’s two-pronged standard constitutes

reversible error.19 Therefore, Defendants’ Motion for Judgment on the Record as

to Plaintiffs’ substantive due process claims must be reversed.

B. The District Court Erred in Applying Plaintiffs’ Substantive Due Process Claims Under the Two-Pronged Standard.

In addition to the erroneous choice of a two-pronged culpability standard,

the court’s assessment of each prong was infected with further errors of law and

errors in application of law to facts, which constitute reversible error. As is clear

from the trial record, (i) Plaintiffs have suffered pervasive harms and are subject to

an unreasonable risk of harm while in DCF custody, (ii) Defendants’ conduct

19 As shown in Sections II.B.i and II.B.ii, Plaintiffs’ evidence is sufficient to satisfy the proper culpability standard.


47

represents a substantial departure from accepted professional judgment, and (iii)

this conduct shocks the conscience.

i. The District Court Erred in Holding that Plaintiffs Did Not Experience Class-Wide Deprivations.

The ruling that Plaintiffs “have not succeeded in showing that the

deprivations complained of were felt class-wide,” Op. 74, is based on legal error

and contradicted by the trial court’s own factual findings.

Plaintiffs have standing to seek injunctive relief to prevent future harm

“irrespective of any showing of the realization of such threatened injuries in the

past.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 57 (1976); see also

Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (plaintiffs seeking

injunctive relief “need not wait until actual casualties occur in order to obtain relief

from such conditions”). Plaintiffs need not need show “certainty of future harm”

but rather the “reasonable threat of such harm.” Osediacz v. City of Cranston, 414

F.3d 136, 143 (1st Cir. 2005). Evidence of past harm can support a likelihood that

plaintiffs will be similarly wronged again. See, e.g., Idaho Watersheds Project v.

Jones, 127 F. App’x 967, 977 (9th Cir. 2005) (“[W]e treat evidence of past harms

or their lack as indicative of the likelihood of future harm.”).

At the class certification stage, the district court confirmed, as have many

courts around the country, that children in foster care have the right to be free from

unreasonable risk of harm while in state care. See Connor B., 272 F.R.D. at 295;


48

see also, e.g., DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1196-98 (10th Cir.

2010) (constitutional injury to children in foster care could include not just actual

abuse and neglect, but the impermissible risk of harm of abuse and neglect due to

alleged systemic failures of child welfare agency); M.D. ex rel. Stukenberg v.

Perry, 294 F.R.D. 7, 34 (S.D. Tex. 2013) (“[Plaintiff foster children] have a right

to be free of the unreasonable risk of harm, and if they suffer that risk now, they

have suffered a legal injury.”), petition to appeal dismissed, No. 13-90045, --- F.

App’x ----, 2013 WL 6069426 (5th Cir. Nov. 19, 2013) (unpublished); D.G., 2011

WL 6009628, at *16 (“[A] claim for violation of a foster child’s substantive right

of due process arises when the child is either harmed or placed at ‘risk of harm.’”

(citing Yvonne L. ex rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883, 892-

93 (10th Cir. 1992))); cf. Helling v. McKinney, 509 U.S. 25, 33-35 (1993)

(recognizing that the Constitution “protects against future harm” and holding that

plaintiff prisoner had stated a claim that he was subjected to “unreasonable risk of

serious damage to his future health”). This right includes freedom from “an

unreasonable risk of harm that would compromise their personal security or

deprive them of reasonably safe living conditions.” M.D., 294 F.R.D. at 33.

The trial record and district court findings of fact demonstrated that all

Plaintiff class members, by definition involuntarily committed to the custody of

DCF, are subject to ongoing, unreasonable risks of harm, as the aggregate


49

performance data in evidence shows that Defendants consistently fail to protect

Plaintiffs from harm while in foster care.20 Such harms fall within the six

categories of substantive due process protections to which the district court held

Plaintiffs are entitled. Op. 63-64.

The district court found, for example, that “[p]lacement stability is [a] goal

that often proves elusive in Massachusetts.” Op. 26. Indeed, a vast percentage of

children in DCF care are consistently subjected to unstable placements. In federal

fiscal year 2011, more than 70 percent of children in DCF custody had experienced

two or more placements during their current foster care experience, including 1700

who had experienced six or more placements in their current foster care episode.

RA 3264. DCF has acknowledged that these children suffer resulting harms, as

each placement move “add[s] additional trauma and further stressors that impede a

child’s positive growth and development.” RA 2575; see also RA 1002-03, 2585.

For example, Named Plaintiff Andre S. endured six placements in less than four

years in DCF custody, which caused “an excessive amount of disruptions and

losses for a young child who had already been through quite a bit.” RA 1040.21

20 Evidence of DCF’s system-wide structural deficiencies, and that such deficiencies have long been known to Defendants and continue to go unremedied, see infra §§II.B.ii, II.B.iii, further supports the ongoing nature of the risk of harm to Plaintiffs. 21 At trial, Plaintiffs introduced detailed evidence of harms suffered by the Named Plaintiffs in order to illustrate how DCF’s poor performance on outcomes, such as


50

Looking at medical services, the district court found that “foster children in

Massachusetts commonly receive medical screenings in an untimely fashion, if at

all,” reporting that, in 2011, just 12.1% of foster children timely received required

seven-day medical visits and that 7.1% timely received required 30-day medical

visits. Op. 37. Missing these required exams “can have a detrimental effect on the

health and development of children in out of home [sic] placement.” RA 2608.

Indeed, Defendants’ failure to provide required medical visits in a timely fashion

for the vast majority of children in their care – a basic necessity that is essential to

protecting these children from harm after they have been removed from their

homes – epitomizes the class-wide harm to which the Plaintiff class is subjected.

On a host of other key DCF measures, including reentry, maltreatment in

care and lack of permanency, the district court made findings of fact documenting

poor performance that similarly translates to harm and risk of harm. See, e.g., Op.

31-33 (reentry), 16-23 (maltreatment), 33-34 (permanency); see also supra pp. 8-

20, 25-27. For example, like the many children in DCF care who age out of foster

care without being adopted or obtaining another form of permanency,22 Named

Plaintiff Adam S. turned 18 while still in DCF custody without any permanent

placement stability, translates into harm and the risk of harm for individual children. See, e.g., RA 985-1071. 22 See, e.g., Op. 36 (finding that “in the third quarter of state fiscal year 2012, nearly as many children left their placements at the age of eighteen as were adopted”).


51

home or family. RA 1021-22. After spending ten years in foster care, he had “no

prospects for a family to care for him on a permanent basis and apparently lack[ed]

the capacity to care for himself.” RA 1060. Two days after he turned 18, he

dropped out of school and “made a plan to move in with friends or go to a

homeless shelter.” RA 1021.

In sharp contrast to its findings of fact in these areas, the trial court’s rulings

characterized Plaintiffs’ evidence as “hav[ing] not succeeded in showing that the

deprivations complained of were felt class-wide.” Op. 74. In addition to ignoring

the large number of class members who had already experienced harm, as

evidenced by the court’s findings as to DCF’s poor performance outcomes, the

district court did not address the risk of harm – an equally important factor –

Plaintiffs were facing, which is not acknowledged in its opinion to constitute legal

injury or a basis for relief.

By way of example, the district court held that maltreatment in care data did

not “sufficiently serve to indict the Massachusetts foster care system” albeit that

Massachusetts has consistently ranked in the bottom quartile of all states on this

metric. Op. 69.23 By choosing to look only at documented past harm in the form of

23 Taking a purely mathematical view, the court found that “most of Massachusetts’s higher-ranked peers beat out the Commonwealth by mere fractions of a percent.” Op. 69. However, the evidence showed that each increment of 0.1% in DCF’s rate of maltreatment in 2011, for example, represented 14 children. Thus, fractions here represent multiple young lives. RA 3026-27.


52

substantiated abuse or neglect, the court did not address how many class members

“were not properly monitored and yet survived an unconstitutional risk of abuse or

neglect unscathed.” DG, 594 F.3d at 1198 (recognizing “[t]he injury [facing

children in foster care] . . . includes exposure to an impermissible risk of harm due

to [the state’s] alleged agency-wide failure[s]” and reasoning that, even if “‘only’

1.2% of . . . foster children actually suffered abuse, that percentage reveals nothing

about how many of those children were not properly monitored and yet survived an

unconstitutional risk of abuse or neglect unscathed”). Indeed, the district court

findings of fact demonstrate massive holes in DCF’s safety net, indicating that

Plaintiffs are not “properly monitored” and therefore are exposed to “an

impermissible risk of harm” that is “shared by the entire class.” See id. at 1196,

98; infra § II.B.ii.

Because the district court’s own findings of fact demonstrate this risk of

harm shared by the class as a whole, as well as the actual harm experienced by a

large number of class members, the district court erred in concluding that there was

no class-wide harm.


53

ii. The District Court Erred in Holding that Defendants Did Not Substantially Depart from Professional Judgment.

a. The district court misconstrued and misapplied the professional judgment standard.

The first prong of the district court’s two-pronged approach adopts the

“professional judgment” standard articulated in Youngberg. Op. 66 (“Plaintiffs

must show that Defendants’ conduct represented a substantial departure from

professional judgment, which deprived them of reasonable care and safety . . . .”

(quoting Connor B., 771 F. Supp. 2d at 162-63)). However, the court misconstrued

and misapplied this standard in two ways.

First, it erroneously imported an Eighth Amendment state of mind

requirement, defining “substantial departure” as “more than mere deviance from

professional norms,” but rather “the most wanton abandonment of caretaking

responsibilities.” Id. at 68 (citing Yvonne L., 959 F.2d at 894; Connor B., 771 F.

Supp. 2d at 162 n.4). Neither Youngberg, nor the two decisions cited by the district

court, require proof of “wanton abandonment.”24 In fact, the First Circuit has never

required wanton conduct when applying the Youngberg standard, nor do other

federal Courts of Appeals appear to have done so.

24 To the extent the district court relied on Yvonne L. and its early ruling in Connor B. to equate the professional judgment and deliberate indifference standards, it contradicted Supreme Court precedent that distinguishes the two standards. See supra, § II.A.i.


54

Proof of “wantonness” is appropriately reserved for claims under the Eighth

Amendment, which proscribes “punishments . . . which involve the unnecessary

and wanton infliction of pain.” Estelle, 429 U.S. 97, 102-03 (1976) (internal

quotation marks omitted). See Farmer v. Brennan, 511 U.S. 825, 838 (1994)

(“[O]ur cases mandate inquiry into a prison official’s state of mind when it is

claimed that the official has inflicted cruel and unusual punishment.” (internal

quotation marks omitted)).25 By importing the “culpable state of mind” from the

“cruel and unusual punishment” context, the district court effectively contradicted

its own acknowledgment that such cases are inapposite because they “pertain[]

only to incarcerated prisoners, whose more limited rights are justified given that

the ‘conditions of [their] confinement are designed to punish.’” Op. 66 n.41

(quoting Connor B., 771 F. Supp. 2d at 162); see also Youngberg, 457 U.S. at 312

n.11, 325 (Eighth Amendment standard of liability was erroneous where

“prisoners’ rights to punishment that is not ‘cruel and unusual’” were not at issue).

This misinterpretation of the professional judgment standard constituted legal error

and infected the district court’s application of the standard to the trial record.

25 This culpable state of mind requirement “follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Farmer, 511 U.S. at 834 (internal quotation marks omitted). “Section 1983 . . . contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” Id. at 840-41. Thus, whether a state of mind requirement exists must be determined in the context of the underlying violation.


55

Second, the court failed to fulfill Youngberg’s requirement that “courts make

certain that professional judgment in fact was exercised.” 457 U.S. at 321; see also

id. at 323 (“[L]iability may be imposed only when the decision by the professional

is such a substantial departure from accepted professional judgment, practice, or

standards as to demonstrate that the person responsible actually did not base the

decision on such a judgment.”). Consistent with Youngberg, the First Circuit has

held that the court’s task is to determine whether a challenged practice is

“supported by some professional judgment.” Santana, 793 F.2d at 45; see also

Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993) (“Professional judgment . . .

creates only a ‘presumption’ of correctness; welcome or not, the final

responsibility belongs to the courts.”).26

Here, “the test is not simply what responsible Commonwealth officials have

determined ‘in good faith’ is necessary for legitimate institutional reasons.”

Santana, 793 F.2d at 45. Rather, it is whether the challenged practice “accords with

the considered judgment of a qualified professional as to what is necessary to

accomplish the institution’s justifiable goals.” Id. Moreover, “[i]t is not the court’s

task to choose among several professionally acceptable choices.” Id.

26 As Chief Judge Seitz of the Third Circuit wrote in the opinion adopted by the Supreme Court, the fact finder must decide “whether the defendants’ conduct had some basis in accepted professional opinion.” Romeo v. Youngberg, 644 F.2d 147, 178 (3d Cir. 1980) (en banc) (Seitz, C.J., concurring); see also Ammons, 648 F.3d at 1040 n.5 (9th Cir. 2011) (“Just ‘any’ judgment . . . will not do; the official must exercise judgment that comports with an objective standard.”).


56

However, when presented with evidence that professional judgment was not

exercised, courts cannot assume conflicting state interests justify the deprivation.

They must look for some “professional support.” Id. at 45-48 (vacating a ruling

that isolation practices in juvenile detention facilities met constitutional

requirements, where there was substantial evidence that professional judgment was

not exercised and almost no evidence in support of the challenged practice, and

holding that “defendants must respond with evidence of professional support for

their isolation practice” because “we are still unwilling to assume . . . that the

Commonwealth’s presumed interests . . . justif[y] the deprivation.”).27

First Circuit trial courts have concluded that professional judgment was not

exercised where a plaintiff presented evidence that the challenged conduct “falls

below any reasonable standard of care,” and the defendants had not “proffered a

persuasive and untainted professional judgment” to the contrary. Battista, 645 F.3d

at 451-52, 454 (affirming a district court’s conclusion that Massachusetts officials

exercised an unreasonable professional judgment or were deliberately indifferent);

see also Healey v. Murphy, Civ. Nos. 01-11099-PBS, 04-30177-PBS, 2013 WL

1336786, at *16-19 (D. Mass. Mar. 29, 2013) (unpublished) (finding that

27 This Court in Santana further noted that “[o]rdinarily, after giving defendants the opportunity to make a record in support of their practices, which they declined, and faced with overwhelming support for plaintiffs in the form of expert testimony, national standards, and judicial precedent, we would find defendants’ system of prolonged isolation to be unconstitutional.” 793 F.2d at 46.


57

defendant’s failure to evaluate civilly committed plaintiffs’ need for

pharmacological treatment using professionally acceptable standards violated the

Due Process Clause, after hearing unrebutted testimony that such treatment is an

accepted practice for psychiatrists to consider when treating plaintiffs’ disorders).

In light of Defendants’ failures to comport with any reasonable standard of

care, the court erred in holding that professional judgment was exercised without

first determining whether the existing structures and practices were supported by

some professional judgment.

b. The district court’s findings, and the evidence in the record, demonstrate substantial departures from professional judgment.

Despite the district court’s ultimate holding that “Defendants, in their

administration of state-run foster care services, did not substantially depart from

widely accepted professional judgment,” Op. 67-68, nothing in the court’s opinion

or the trial record indicates that Defendants made any judgment – much less a

professionally acceptable one – that its existing child welfare structures and

practices were sufficient. There is no indication, for example, that DCF exercised a

professional judgment to visit children as infrequently as once every two or three

months, to burden workers with the responsibility of more than 18 cases at a time,

or to recruit so few foster homes. Rather, as discussed in more detail below, DCF

consistently failed to comport with its own judgments, reflected in its policy and


58

the admissions of its managers, about minimally acceptable child welfare

structures and practice.

Significantly, the court itself found that in many important areas, “DCF has

failed not only to comport with national standards of care and state and federal

requirements but also to comply with its own internal policies.” Op. 67-68. Yet, it

did not identify in its ruling why each of these failures were not “substantial

departures,” or how Defendants’ systemic shortcomings were consistent with

professional judgment. Instead, it erroneously applied a brief assessment of a few

areas, such as caseloads and the rate of maltreatment in care, to the system as a

whole. The court’s broad conclusion that there is a “mixed record” system-wide,

Op. 72, was insufficient in light of the court’s failure to meaningfully address each

of the substantive due process violations alleged. See Hoptowit v. Ray, 682 F.2d

1237, 1256 (9th Cir. 1982) (holding in an Eighth Amendment case that the district

court improperly applied a “totality of conditions” analysis, and instructing the

court on remand to “consider each finding and decide whether each condition

amounts to an unnecessary and wanton infliction of pain.” (emphasis added)),

abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Moreover,

in contrast to its ultimate ruling, the district court’s findings of fact catalog dismal

performance on outcomes that relate directly to the substantive due process

protections Plaintiffs are owed, see supra § II.B.1, as well as longstanding


59

breakdowns in structures and practices fundamental to preventing these harms, as

shown below.

While there is no bright line establishing what amounts to a substantial

departure in every context, the evidence in this case amply demonstrates that the

basic structures of a sound foster care system were so depleted as to thwart the

exercise of professional judgment. For example, an adequate number and array of

foster care placements is essential to ensuring children can be matched with

appropriate placements, and to preventing unnecessary placement moves. Op. 29-

30; RA 1003, 1223, 2575. Federal law, DCF policy, and professional standards

mandate diligent foster home recruitment by child welfare agencies, see supra p.

22. Yet, as the district court found, DCF has consistently fallen short of its own

recruitment target—around 4000 unrestricted foster homes—since the late 1990s.

Op. 29. Nothing in the court’s findings indicated that DCF’s placement array was

justified by some alternative form of professional judgment. In fact, the court

found that DCF does not have enough statewide recruiters to fulfill its own

recruitment objectives, and that its “persistent placement problems can primarily

be traced to . . . a severe shortage in the number of foster homes.” Id. Thus, DCF

failed to build the capacity necessary to obtain what, in its own judgment, is a

minimally adequate placement array.


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The evidence also demonstrates significant structural breakdowns in other

areas, such as caseloads and internal and external accountability. See, e.g., Op. 47-

48 (“[s]ince at least 2008, scores of DCF caseworkers have carried caseloads in

excess of the agreed upon eighteen cases,” and DCF admits that standard

undermines case practice essential to child safety); see also supra p. 20 (Plaintiffs’

expert Cathy Crabtree opined that the caseload standard departed from professional

judgment); Op. 50 (finding that “[t]here is at present a dearth of staff members

whose roles are dedicated to managing continuous quality improvement”); see

supra pp. 16-17 (despite federal law mandating that DCF monitor the activities of

its private contractors, DCF managers admit that staffing resources are insufficient

and that they do not collect or monitor crucial data regarding private provider

performance).

Not surprisingly, in a system compromised by the above structural

deficiencies, Defendants’ performance in many key practice areas fell so far below

all proffered standards of care as to demonstrate that it was unable to exercise

professional judgment. For example, while federal law and DCF policy require

monthly caseworker visitation with children as a basic element of safety, see supra

p. 11, only 43% to 50% of children received all required caseworker visits during

the years of 2008 to 2011. Op. 35. As the district court found, this performance fell

“far below” the 90% federal benchmark. Id. There is no indication in the record, or


61

in the court’s findings, of a professional judgment justifying this practice. Rather,

DCF failed to implement its own professional judgment, as reflected in its own

policy, that all children should receive a minimum of one visit per month from

their caseworker.

Defendants’ performance in numerous other practice areas, including

medical services, licensing, and investigations, also fell far below all proffered

standards. See, e.g., Op. 36-38; see supra p. 24 (despite federal law requiring

timely medical screenings, in 2011 only 12.1% of foster children received timely

seven-day visits, and only 7.1% received timely 30-day visits, far below DCF’s

own modest compliance targets of 50%); see supra pp. 13-14 (DCF data indicates

that up to one quarter of required foster home licensing renewals and

reassessments are untimely in violation of state law, and DCF’s Commissioner

admitted that the rate of non-compliance was unacceptable and potentially unsafe);

see supra pp. 14-15 (only a small percent of investigations into abuse and neglect

are completed in the timeframe required under state law).

These substantial departures from professional judgment are not reflected in

isolated errors in judgment or occasional acts of carelessness, but reflective of

chronic and significant breakdowns in basic child welfare structures and practice.

Moreover, this is not a case in which the district court was asked to choose

between conflicting standards of care, or conflicting strategies for meeting those


62

standards.28 Rather, DCF failed to build a system “in which professional judgment

may be exercised,” Doe v. Gaughan, 808 F.2d 871, 886 (1st Cir. 1986).

Indeed, nothing in the court’s findings or the trial record indicated that

Defendants’ structures and practice fell within the spectrum of professionally

acceptable judgment.29 While the court pointed to the state’s “financial and

administrative constraints,” Op. 71, the availability of resources is not part of the

constitutionally acceptable decision-making process where constitutional

minimums have not been met. See infra, § V. Indeed, courts have recognized that

“overly extensive cost restrictions . . . could so limit the range of recommendations

available to professionals that their judgment would be rendered inadequate to

meet constitutional standards.” Jackson ex rel. Jackson v. Fort Stanton Hosp. &

Training Sch., 964 F.2d 980, 992 (10th Cir. 1992).

Finally, the court erred in applying the Youngberg standard to the rate of

maltreatment in care, which is in fact evidence of a constitutional injury. The

28 See LaShawn A., 762 F. Supp. at 997 (finding in a class action brought on behalf of children in foster care that professional judgment was not exercised where “these failures are not the result of choosing among several professionally acceptable alternatives. These failures are the result of making no choices at all”); cf. Doe v. Gaughan, 808 F.2d 871, 885 & n.14 (1st Cir. 1986) (affirming a district court’s finding that a mentally ill patient’s due process rights were not violated where “the plaintiff has succeeded only in proving that professional opinion differs as to which modalities [of treatment] are appropriate and which are not”). 29 The court’s conclusion that “steady progress has been made” with regard to caseworker caseloads, Op. 72, does not resolve the question of whether the state’s current performance, which continues to exceed the obsolete 18:1 standard, substantially departs from professional judgment.


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proper inquiry was not whether the rate of harm, itself one of the worst in the

nation, substantially departed from national performance and standards, but

whether Defendants exercised professional judgment in building the safety net

necessary to prevent this harm. Evidence in the trial record, and the court’s own

findings, make clear that Defendants substantially departed from professional

judgment in each of the four “hinge pins” of the child welfare safety net: visitation,

licensing, investigations, and accountability, see supra pp. 10-18, and nothing in

the district court’s findings called this evidence into question.30

iii. The District Court Erred in Ruling that Plaintiffs Did Not Demonstrate that the Defendants’ Conduct Was Conscience-Shocking.

Even if this Court holds that a distinct shocks-the-conscience prong applies

to Plaintiffs’ substantive due process claims, in the custodial context this prong

should not create an unscalable peak, as it did here. In applying the shocks-the-

conscience test, the district court failed to properly construe its contours in the

custodial context and misapplied it to the trial record.

The Supreme Court has made clear that the shocks-the-conscience standard

is context-specific and has provided a clear dividing line between circumstances in

which mid-level culpability will suffice to shock the conscience and a higher level

30 Further, as addressed above, the court erred in ignoring evidence of unreasonable risks of harm and therefore improperly concluded that Plaintiffs had not demonstrated class-wide deprivations. See supra § II.B.ii.


64

of culpability is not required: when an individual is in the custody of the state,

where forethought about the individual’s welfare “is not only feasible but

obligatory under a regime that incapacitates [him] to exercise ordinary

responsibility for his own welfare,” and the individual’s claim arises from normal

custody rather than “from response to a violent disturbance.” Lewis, 523 U.S. at

851-52. In the custodial environment of a prison, for example, liability for mid-

level culpability “rests upon the luxury enjoyed by prison officials of having time

to make unhurried judgments, upon the chance for repeated reflection, largely

uncomplicated by the pulls of competing obligations.” Id. at 853. In such an

environment, the Supreme Court has held, “[w]hen such extended opportunities to

do better are teamed with protracted failure even to care, indifference is truly

shocking.” Id. at 853; see also Coyne v. Cronin, 386 F.3d 280, 288 (1st Cir. 2004)

(holding that “where actual deliberation on the part of a governmental defendant is

practical, the defendant may be held to have engaged in conscience-shocking

activity even without actual malice” and stating that “one familiar example” is

where a government official assumes custody of a person and then displays

indifference to that person’s basic needs). Therefore, even if Plaintiffs are required

to prove more than substantial departures from professional judgment in order to

demonstrate conscience-shocking conduct, under Lewis they need not go beyond


65

proof of the mid-level culpability that satisfies the shock-the-conscience test for

incarcerated prisoners.

Similarly, while the district court looked to individual damages cases

involving foster children in determining whether the court’s “impressionable

conscience” was shocked, Op. 73 (citing J.R. ex rel. Raymond v. Gloria, 593 F.3d

73, 80-81(1st Cir. 2010) and K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 853

(7th Cir. 1990)), those cases arise out of vastly different contexts. See, e.g., K.H.,

914 F.2d at 853 (holding that defendants were “immune from damages liability”

with respect to plaintiffs’ challenge to the “general practice of shuttling children

among foster parents” but stating that its ability to remedy such “deep-seated

problems of public responsibility are to be explored not in damages suits but in

equity actions - a route that K.H.’s guardian rather ostentatiously forwent in this

case”).

With this guidance in mind, it is evident that the district court erred in

applying the shocks-the-conscience prong to the trial record. The myriad systemic

deficiencies31 plaguing DCF are not the result of mere negligence or lapse in

attention. Instead, the evidence demonstrated that Defendants, having identified the

31 See supra. § II.B.ii. In light of the abundant evidence in the record, the district court’s holding in its Rulings of Law section that “[w]hile the actions (or inaction) or some resident bad actors reflects poorly on DCF, institutional failings at the Department have not yet been proven,” Op. 73, is erroneous. In fact, this holding is contradicted by the court’s own findings of fact as to numerous system-wide failings. See Op. 15-58.


66

same array of systemic infirmities detailed by the district court in its findings here,

repeatedly have put off to a later day vital corrective actions necessary to abate

those risks. The evidence further showed that children have suffered actual harm as

a result. See supra § II.B.i. Under any interpretation of the applicable culpability

standard in the custodial context, this stunning and abject failure to take reasonable

action to safeguard the Commonwealth’s most vulnerable citizens from known

dangers in the conditions and treatment attending state custody is conscience-

shocking.

The trial record includes numerous examples of Defendants choosing to

delay – or altogether failing to plan – essential corrective actions. In early 2011, a

DCF Deputy Commissioner wrote, “[i]n reviewing recent cases, I have noticed that

family/child visits have been inconsistent and children may not have been seen for

several months at a time.” RA 2656. This observation followed a May 2010

acknowledgement by DCF management that, under existing caseloads, it was

“extremely difficult for workers to complete all the required tasks associated with

their 18 assigned families,” which “compromises the Commonwealth’s ability to

ensure the safety of all the children [it is] responsible for.” RA 2625. DCF

management further admitted that “manageable caseload levels are a critical

variable in assuring worker availability to see families at a frequency and intensity

that promotes addressing the goals of safety, permanency and well-being,” and that


67

“increasing social worker caseloads continue to be the number one barrier” to

improved visitation performance. RA 2255-56. Yet, as readily admitted by the

DCF Commissioner at trial, the agency’s proposed plan – developed in 2010 – to

reduce DCF’s caseload standard from 18:1 to 15:1 had not been finalized, much

less implemented, some two years later as of August 2012. RA 1349. Given this

inaction, it is hardly surprising that DCF’s August 2012 Home Visit Report

showed large numbers of children without visits for two and three months. RA

2170. This protracted tolerance by Defendants of a known gaping hole in the child

welfare safety net constitutes an egregious abdication of duty.

As another example, notwithstanding its knowledge that “[p]lacement

stability is . . . a key factor in promoting and maintaining a child’s well-being,” RA

2575, DCF has long made use of short-term placements, such as hotline homes,

known to generate multiple moves between foster homes. Indeed, the district court

found that DCF’s use of these short-term placements “disrupt[s] the lives of

children in care.” Op. 26-27. The DCF Commissioner put it even more strongly in

2010, writing to his staff that DCF’s “hotline home/night-to-night system” is “not

good for kids.” RA 2400. Nevertheless, the Commissioner admitted over three

years later that DCF had not developed a solution to the hotline home problem and

that he “would have anticipated that we would have gotten to that earlier.” RA

1361-64. A DCF internal study published in March 2011 likewise acknowledged a


68

systemic failure to provide placement stability stating that “lateral moves” between

intensive foster care homes had substantially increased between 2007 and 2010 and

that this constituted “significant churning within the IFC system.” RA 1720. Over

one year later, the DCF Commissioner admitted that he had not as of yet

“‘Directed’ with a capital D” anyone to develop a strategy to cure the known

churning of children in private foster care placements. RA 944-45. This manifest

lack of urgency to rectify systemic ills admittedly “not good for kids” ought to

shock the judicial conscience.

As a final example, the trial evidence demonstrated a similar lack of urgency

by Defendants in addressing known systemic problems in the provision of health

care to children in DCF custody. Under state law and agency policy, DCF is

required to prepare and timely update a medical passport for every child in state

foster care. Op. 37. Yet, a DCF management report dating back to 2008 showed

that caseworkers had not prepared and updated these passports in thousands of

cases. RA 3022. An April 2008 email from the Chairman of the Department of

Pediatrics at the Boston Medical Center to then-EOHHS Secretary JudyAnn Bigby

warned of the inherent danger of this poor medical recordkeeping by DCF, stating

“we have no or at best incomplete medical information about the child – it is poor

care with little value for money, unlikely benefits the child or foster parent and a

medical error waiting to happen.” RA 2469.


69

Two years later in June 2010, DCF developed a Medical Services Strategic

Plan including a provision that DCF “[r]eevaluate the utility of the Medical

passport and make recommendations for improvement in documenting and sharing

healthcare information with substitute care providers.” RA 1733. Another two

years later, in May 2012, DCF’s Deputy Commissioner testified that no action had

yet been taken on this medical passport provision and that the Medical Services

Strategic Plan itself had never been finalized. RA 783-84, 789-90. This is one more

example of Defendants’ dereliction in taking reasonable and timely steps to

eliminate known risks of harm to the children in its care.32 See also Op. 26-27.

Moreover, DCF failed to provide a candid assessment of its performance to

the legislature so that needed resources might be obtained. At trial Commissioner

McClain acknowledged that, based on federal performance measures, DCF was

among the bottom performers nationally in a number of areas key to child safety

and well-being. (Trial Tr. Vol. 16, May 2, 2013 at 3:15-40:19). Yet, DCF

represented to the legislature in a fiscal year 2013 budget presentation based on

32 The trial record reflects similar longstanding knowledge as to system-wide deficiencies and resulting risk of harm to children, left ignored and unremedied by Defendants, in the areas of reentry, multiple placement moves, inadequate medical services, lack of permanency, and inadequate sibling placement and visitation. See supra pp. 18-29; see also RA 773, 817-20, 829-30, 836, 848-49, 898-900, 917-19, 945-46, 1308-10, 1314-18, 1354-55, 1357, 1373, 1661-62, 1672, 1674-75, 1680, 1685, 1701-02, 1710-12, 2072, 2075-76, 2080-81, 2085-86, 2094-95, 2116-21, 2126, 2416, 2736, 2749-51, 2753, 3103-07, 3115-19, 3133-37, 3335-39, 3357-64, 3366-404.


70

these same federal measures that “DCF performed within the top 25% of states.”

(Trial Ex. 544 at EOHHS001940028; Trial Tr. Vol. 16, May 2, 2013 at 40:20-

51:9). Defendants’ indifference to the risks of harm suffered by the Plaintiffs is

also evidenced by the Governor’s failure to require submission by the

Massachusetts Office of the Child Advocate of a comprehensive plan for reforming

the Massachusetts child welfare system. The comprehensive plan, an element of

the Child Protection Act enacted in 2008 in response to multiple tragedies

involving children under DCF watch, was statutorily required “to recommend a

coordinated, system-wide response” to 24 items, including timeliness of adoptions,

social worker caseloads, health service needs, and the frequency of transitions in

placements. See Mass. Gen. Laws ch. 18C, § 11. State law required the

comprehensive plan to look forward five years or more and to be updated annually,

and it was due on June 30, 2010. Mass. Gen. Laws ch. 18C, § 11; 2008 Mass. Acts

176, § 134. As of August 2012, it had not been submitted. RA 1146, 1149-52,

1154-55, 1158.

Ultimately, the district court erred in failing to find conscience-shocking

conduct in the face of evidence that has been well known to the Defendants for

years.


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III. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE RECORD ON PLAINTIFFS’ FAMILY ASSOCIATION CLAIM.

The district court held that in ruling on Plaintiffs’ family association claim,

as with their substantive due process claims, “one must take into account the

extenuating circumstances (i.e. budgetary constraints) that bear on DCF’s capacity

to deliver high-quality care in order to determine whether the children in foster

care were deprived of meaningful opportunities to see their family members.” Op.

77. However, case law is clear that budgetary constraints do not justify a

constitutional violation. See infra § V. Therefore, this ruling, in the face of the

district court’s findings of fact documenting class-wide deprivation of child-family

contact,33 constitutes reversible error.

IV. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE RECORD ON PLAINTIFFS’ PROCEDURAL DUE PROCESS CLAIM.

To prove a procedural due process violation, Plaintiffs must show: (i) they

possess a cognizable property interest which the state has deprived, and (ii) the

33 The district court found, based on the CRC study, that “it would appear that child-family visits are a relatively rare occurrence: only 20.9% and 37.6% of children in the entry cohort received consistent monthly visits from siblings and parents, respectively, for the entirety of the thirty-month review period” and that only “40.2% of children in the entry cohort were visited by any kin whatsoever in the thirty-month window.” Op. 25 & n.19. The district court also found that 31.9% of children in DCF custody were placed outside of their home area, and an additional 18.6% were placed “altogether outside their region of origin,” which makes visits with family members more difficult. Op. 25. The district court also documented low rates of sibling placement and visits. Op. 25-26.


72

procedural safeguards attending the deprivation were constitutionally insufficient.

González-Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010) (citing Ky. Dep’t

of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). The essence of due process is the

requirement that “a person in jeopardy of serious loss [be given] notice . . . and

opportunity to meet it.” Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (internal

quotation marks omitted).

The district court determined that Plaintiffs possess “constitutionally

protected interests” to: (i) visitation with siblings, (ii) medical passports, (iii) the

diligent search for kin, and (iv) medical screenings meeting EPSDT standards. Op.

77-78. Ample trial evidence proved widespread deprivation of these entitlements:

DCF fails to assure sibling visits, Op. 25; RA 3525; children are routinely denied

updated medical passports, Op. 38; RA 3468; DCF fails to undertake timely

searches for kinship placements, RA 3128, 3232, 3478, 3480; and children are

routinely denied timely medical screenings, Op. 37; RA 3103, 3106, 3115, 3118,

3127-28, 3130, 3232.

Having found constitutionally protected interests, the district court

considered whether adequate procedural safeguards have been provided. The

district court found that it is “unclear whether notice . . . is always provided,” but

“one cannot prove the negative from an empty inference.” Op. 78. Plaintiffs

presented the testimony of DCF General Counsel Virginia Peel in which she


73

admitted that 14-day, advanced written notice, as required under state law (110

Mass. Code Regs. 8.01), is not uniformly and consistently provided. RA 500-07.

The district court erred in finding this evidence insufficient to prove improper

notice.

Even assuming the adequacy of notice, the trial evidence established that

DCF fails to provide Plaintiffs a meaningful opportunity to be heard, which by

itself is sufficient to prove a procedural due process violation. See Raper v. Lucey,

488 F.2d 748, 753 (1st Cir. 1973) (“It is elementary that due process . . . requires

the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”

(quoting Goldberg v. Kelly, 397 U.S. 254, 267 (1970))). DCF regulations provide

that a fair hearing “shall be scheduled to be held within 90 calendar days from

receipt of a request.” 110 Mass. Code Regs. 10.10(2) (2011). The district court

found “significant” and “overwhelming” backlogs in DCF’s fair hearing docket.

Op. 58, 78. The evidence showed that less than 11% of hearings conducted in 2011

occurred within the required time-frame. RA 3037-38. In 2010 this was barely five

percent, and in 2009 four percent. RA 3037-38. There is no ambiguity in these

startling figures.

Faced with this evidence, the district court nonetheless excused Defendants’

actions, finding that “limited resources appear to be the properly attributable

culprit.” Op. 78. This finding constitutes reversible legal error as procedural due


74

process violations may not be excused by a claim of insufficient funds. Mills v. Bd.

of Educ. of D.C., 348 F. Supp 866, 876 (D.D.C. 1972) (citing Goldberg, 397 U.S.);

see infra § V.

V. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE RECORD ON PLAINTIFFS’ CONSTITUTIONAL CLAIMS BASED ON IMPROPER FISCAL CONSIDERATIONS.

While acknowledging that the “vindication of conceded constitutional rights

cannot be made dependent upon any theory that it is less expensive to deny than to

afford them,” Op. 62 (quoting Watson v. City of Memphis, 373 U.S. 526, 537

(1963)), the district court nonetheless denied relief as to Plaintiffs’ constitutional

claims on the grounds that the extensive harm done to Plaintiffs was due to

legislative failure to appropriate the resources needed to serve foster children in

DCF’s care.34 Although it characterized as “penury” the Commonwealth’s

appropriations to DCF, the district court “decline[d] to substitute its judgment for

that of duly elected Massachusetts lawmakers, who properly are endowed with the

34 See Op. 71 (holding, with respect to substantive due process claims, that “[i]n truth, financial and administrative constraints—not the alleged mismanagement by DCF officials—pose the greatest threat to children in the Massachusetts foster care system today”); Op. 77 (holding, with respect to family association claim, that “one must take into account the extenuating circumstances (i.e., budgetary constraints) that bear on DCF’s capacity to deliver high-quality care” in deciding whether Plaintiffs were deprived of meaningful opportunities to see their family members); Op. 78 (holding, with respect to procedural due process claim, that “limited resources appear to be the properly attributable culprit” for “overwhelming backlogs in the scheduling of fair hearings”).


75

power to direct the reserves of the Commonwealth’s coffers to whatever issue of

public import they see fit.” Op. 72, 84. In so doing, the district court effectively

held that politicians’ fluctuating levels of fiscal generosity, rather than

constitutional mandates, set the bar for minimally adequate protections plaintiffs

are owed. That approach is contrary to case law and constitutes reversible error.

The law is clear that federal courts cannot exempt state actors from liability

for constitutional deprivations because they plead that they lack funds to effectuate

meaningful remedies. See, e.g., Bounds v. Smith, 430 U.S. 817, 825 (1977) (“the

cost of protecting a constitutional right cannot justify its total denial”); Watson,

373 U.S. at 537; Stone v. San Francisco, 968 F.2d 850, 858 (9th Cir. 1992)

(“federal courts have repeatedly held that financial constraints do not allow states

to deprive persons of their constitutional rights”); Rozecki v. Gaughan, 459 F.2d 6,

8 (1st Cir. 1972) (rejecting the lower court’s conclusion that state officials were not

liable because they were “doing all they can with what they have” and stating that

“[h]umane considerations and constitutional requirements are not, in this day, to be

measured or limited by dollar considerations” (internal quotation marks omitted)).

As the district court acknowledged, judicial protection is especially critical where

the individuals being deprived of rights are in state custody and wholly dependent

on public funding for their basic needs. See Op. 63.


76

The district court’s conclusion that “financial and administrative

constraints—not the alleged mismanagement by DCF officials—pose the greatest

threat to children in the Massachusetts foster care system today,” Op. 71, does not

excuse an unconstitutional result. Where, as here, Plaintiffs are being deprived of

constitutional rights, the district court must restore those rights. If it concludes that

the Legislature has chosen not to allocate the resources necessary for DCF to

comply with corrective directives, this does not mean that the court may back away

from a meaningful remedy.35 “The obligation . . . to eliminate existing

unconstitutionalities does not depend upon what the Legislature may do, or upon

what the Governor may do, or, indeed, upon what [Defendants] may actually be

able to accomplish.” Rozecki, 459 F.2d at 8 (quoting Holt v. Sarver, 309 F. Supp.

362, 385 (E.D. Ark. 1970), aff’d, 442 F.2d 304 (8th Cir. 1971)) (internal quotation

marks omitted); see also Dimarzo v. Cahill, 575 F.2d 15, 19 (1st Cir. 1978) (“A

district court can order changes which will force the state to expend funds.”);

Gates v. Collier, 501 F.2d 1291, 1319 (5th Cir. 1974) (“the defenses of fund

35 The district court implicitly recognized this when it ruled that Plaintiffs will have a future cause of action under the Adoption Assistance and Child Welfare Act of 1980 if foster care maintenance payments were to fall substantially below U.S. Department of Agriculture guidelines. Op. 81. In such event, the only meaningful way for Defendants to satisfy a judgment in Plaintiffs’ favor would be to procure an increase in appropriated funds.


77

shortage and the inability of the district court to order appropriations by the state

legislature, have been rejected by the federal courts”).36

Doe ex rel. Johanns v. New York City Department of Social Services, 670 F.

Supp. 1145 (S.D.N.Y. 1987), addressed a class of children in foster care custody

challenging a policy of repeatedly assigning children to temporary foster care

facilities on a night-to-night basis. 670 F. Supp. at 1147-48. Holding this practice

deprived the children of liberty without due process, the court entered a

preliminary injunction. Id. at 1186. The court rejected the city’s argument that the

policy could be justified in “the context of the current available resources and

circumstances [NYC DSS] faced.” Id. at 1184. Rather, “‘[t]o the extent that a

professional’s judgment of the appropriate treatment is shown to have been

modified to fit what is available, that judgment likely has become a substantial

departure from accepted professional judgment, practice, or standards.’” Id.

(quoting Thomas S. v. Morrow, 601 F. Supp. 1055, 1059-60 (M.D.N.C. 1984)); see

also B.H., 715 F. Supp. at 1398 & n.6 (“[c]oncern with the availability of resources

36 Indeed, Youngberg holds that budgetary constraints may give rise to a good-faith immunity defense in actions seeking damages against state agents in their individual capacities, implying that the same is not true for actions in equity such as the one here. Youngberg, 457 U.S. at 323; see Thomas S. v. Morrow, 601 F. Supp. 1055, 1059-60 (M.D.N.C. 1984) (while lack of funding “is critical in determining whether damages may be recovered[,] . . . consideration of budgetary constraints is not proper when defining this constitutional right. . . . [B]udgetary constraints [are not] restrictive of a court’s equitable authority and power in fashioning prospective relief after determining that this constitutional right has been violated.”).


78

is rarely part of the constitutional decision-making process where a recognized

constitutional right is violated”).

Here, the district court acknowledged that each constitutional right asserted

by Plaintiffs is valid and deprivation of each such right is actionable. See Op. 63-

64, 74-75, 77-78. Yet, notwithstanding the litany of systemic shortcomings it

found, it focused on the “penury” of those holding state purse-strings. Op. 84. This

is tantamount to a ruling that redress of Plaintiffs’ acknowledged harms cannot be

awarded by the courts as mandatory relief, but instead is dependent on the whims

of political branches of government. Harmed on a daily basis by acknowledged

shortcomings of the Defendants’ foster care system, these children do not have

time to wait for fiscal serendipity: they are entitled to due process now. “[T]he

Constitution does not put a price on constitutional rights, in terms of either time or

money. The rights guaranteed by the Constitution are to be made effective in the

present.” Ensley Branch, N.A.A.C.P. v. City of Birmingham, 31 F.3d 1548, 1574

(11th Cir. 1994). The district court’s improper consideration of budgetary

constraints in its assessment of each of Plaintiffs’ constitutional claims requires

reversal of judgment on the record.


79

VI. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE RECORD ON PLAINTIFFS’ STATUTORY CASE PLAN CLAIM.

Without providing any valid legal justification, the district court denied

Plaintiffs’ claim that Defendants fail to provide them with case plans that meet the

requirements of the Adoption Assistance and Child Welfare Act of 1980, 42

U.S.C. §§ 670 et seq. (“AACWA”). Despite its recognition that a large percentage

of children in DCF care have case plans that are incomplete or entirely unavailable,

the district court gave short shrift to Plaintiffs’ case plan claim and disposed of it

with the statement that “mere gaps in record keeping hardly constitute grave

statutory error, particularly when viewed in the context of . . . financial and

administrative hardships.” Op. 82 (citation omitted). This ruling constitutes legal

error.

Under AACWA, states that accept federal funds for their child welfare

systems must provide each child in foster care with a case plan, a written document

that contains statutorily-mandated information about the child including, among

other things, a discussion of the safety and appropriateness of the child’s placement

and a plan for assuring that the child receives safe and proper care and services. 42

U.S.C. § 671(a)(16); 42 U.S.C. § 675(1). This Circuit has previously affirmed a

district court’s order granting a preliminary injunction to a class of foster children

requiring the state to provide case plans with statutorily-mandated items to


80

Plaintiffs, based on the district court’s holding that defendants violated plaintiffs’

right to case plans under a precursor statute to 42 U.S.C. § 675(1). Lynch v. King,

550 F. Supp. 325, 338, 346-47 (D. Mass 1982), aff’d sub nom. Lynch v. Dukakis,

719 F.2d 504, 506 (1st Cir. 1983).

Here, the district court held at the motion to dismiss stage that Plaintiffs

have privately enforceable rights to individualized case plans. Connor B., 771 F.

Supp. 2d at 170-72; see also Lynch v. Dukakis, 719 F.2d 504, 509-12 (1st Cir.

1983). Based on the trial record, the district court found:

The results from the CRC study suggest that case plans are generally not well maintained and, in some cases, are entirely unavailable for review. See CRC Study tbls.28a & 55a (reporting that 14.6% of children in the entry cohort and 35.1% of children in the two-year cohort were missing case plans in their case files); id. tbl.29 (reporting, with respect to the entry cohort, that 65.8% of the case plans contained child service data and that 73.9% of the case plans contained family service data); id. tbl.56 (reporting, with respect to the two-year cohort, that 31.8% of the case plans contained child service data and that 10.7% of the case plans contained family service data).

Op. 81-82; see also Lynch, 550 F. Supp. at 336 (citing review that found that 20

percent of all foster care cases did not have written case plans and that, of the cases

that did have written case plans, 37 percent were incomplete).


81

The district court’s hasty disposition of this cause of action on the basis that

“mere gaps in record keeping37 hardly constitute grave statutory error,” Op. 82,

provides no legal basis for denying Plaintiffs’ valid claim based on a federal statute

and constitutes reversible error.38 Furthermore, this ruling ignores case law

recognizing the importance of case plans in the foster care context and the harm

inherent in a system in which case plans are not consistently provided:

The case plan is the very foundation of the system of protection for a foster child. It is a blueprint of the steps that must be taken, and services that must be provided, to ensure the safety and welfare of the child. . . . [W]ithout a case plan and periodic review, the psychological and bodily safety of the child is at serious risk, for there is no guarantee that anyone is looking out for his or her interests.

Lynch, 550 F. Supp. at 338.

Nor does the district court’s reference to the “financial and administrative

hardships” suffered by Defendants provide a legal basis for its disposition of

37 To the extent that this ruling implies that case plans for some of the children subject to the CRC review actually exist but were not in the case files reviewed by CRC, such suggestion is contradicted by Magistrate Judge Neiman’s February 29, 2012 order that Defendants were precluded from relying on any documentation beyond the files produced to Plaintiffs for the CRC review in opposition to CRC’s analysis. See RA 23. 38 The district court’s citation to Bailey v. Pacheco, a district court case from New Mexico, for the proposition that “‘[s]loppy record keeping skills’ did not cause social worker to relinquish the trappings of presumptively valid professional judgments,” Op. 82 (citing Bailey, 108 F. Supp. 2d 1214, 1223 (D.N.M. 2000)), does not provide legal support for the denial of the Plaintiffs’ federal statutory case plan claim. Bailey involved an individual child’s substantive due process claim for damages based on injuries suffered while in foster care and there was no statutory cause of action – or any other cause of action relating to case plans – at issue in that case. See Bailey, 108 F. Supp. 2d 1214, 1218-21 (D.N.M. 2000).


82

Plaintiffs’ case plan claim. Op. 82. Just as lack of funding does not constitute a

valid defense against constitutional claims, see supra § V, financial hardship, if

proven, is not a proper legal basis for denying Plaintiffs’ entitlement to case plans

under AACWA. Indeed, in Lynch, the court held that judicial sensitivity to

concerns regarding funding did not “justify abdication of judicial responsibility,”

in particular where “Congress—and not any court—created requirements it thought

essential to protect the welfare of foster children” and the “Commonwealth

voluntarily undertook to fulfill those requirements as a condition of receiving

federal money.” Lynch, 550 F. Supp. at 339; see also Rolland v. Romney, 318 F.3d

42, 58 (1st Cir. 2003) (affirming order requiring state to provide specialized

services in class action brought by developmentally disabled Massachusetts

nursing home residents despite its understanding of the “Commonwealth’s posture

in this case, especially given its exigent budgetary circumstances”).

Therefore, the district court’s ruling granting Defendants’ Motion for

Judgment on the Record as to Plaintiffs’ statutory case plan claim should be

reversed.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the judgment of

the district court be reversed and vacated and that the case be remanded for further

proceedings consistent with the rulings of this Court.


83

DATED: March 24, 2014 RESPECTFULLY SUBMITTED: /s/Marcia Robinson Lowry . Marcia Robinson Lowry (No. 1136452) Sara M. Bartosz (No. 1161471) Rachel B. Nili (No. 1141572) Sarah T. Russo (No. 1161468) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 [email protected] [email protected] [email protected] [email protected]

Mary K. Ryan (No. 13421) Daniel J. Gleason (No. 15241) Jonathan D. Persky (No. 1144768) NUTTER MCCLENNEN & FISH, LLP 155 Seaport Boulevard Boston, MA 02210 Phone: (617) 439-2000 Facsimile: (617) 310-9000 [email protected] [email protected] [email protected] Counsel for Plaintiffs-Appellants


84

FED. R. APP. P. 32(A) CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because:

[X] this brief contains 19,949 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).39

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[X] this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in 14 point Times New Roman font.

/s/ Marcia Robinson Lowry .

Attorney for Plaintiffs-Appellants

Dated: March 24, 2014

39 On March 18, 2014, this Court granted Plaintiffs-Appellants’ Motion for Leave to File Oversized Brief, allowing Plaintiffs-Appellants to file an opening brief not exceeding 20,000 words.


85

CERTIFICATE OF SERVICE

I hereby certify that, on March 24, 2014, I electronically filed the foregoing

document with the United States Court of Appeals for the First Circuit by using the

CM/ECF system. I certify that the following parties or their counsel of record are

registered as ECF Filers and that they will be served by the CM/ECF system:

Liza Tran, Esq. Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 02108 Counsel of Record for Defendants-Appellees /s/Marcia Robinson Lowry Marcia Robinson Lowry


No. 13-2467

In the United States Court of Appeals for the First Circuit

CONNOR B., by his next friend Rochelle Vigurs; ADAM S., by his next friend Denise Sullivan; CAMILA R., by her next friend Bryan Clauson; ANDRE S., by his next friend Julia Pearson; SETH T., by his next friend Susan Kramer; and RAKEEM D., by his next friend Bryan Clauson, for themselves and those

similarly situated, Plaintiffs-Appellants

v.

DEVAL L. PATRICK, Governor of the Commonwealth of Massachusetts; JOHN POLANOWICZ, Secretary of the Massachusetts Executive Office of Health and Human Services; and OLGA I. ROCHE, Commissioner of the

Massachusetts Department of Children and Families, in their official capacities,

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Civ. No. 1:10-cv-30073-WGY

ADDENDUM OF PLAINTIFFS-APPELLANTS

Marcia Robinson Lowry (No. 1136452) Sara M. Bartosz (No. 1161471) Rachel B. Nili (No. 1141572) Sarah T. Russo (No. 1161468) CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, NY 10001 Phone: (212) 683-2210 Facsimile: (212) 683-4015 [email protected] [email protected] [email protected] [email protected]

Mary K. Ryan (No. 13421) Daniel J. Gleason (No. 15241) Jonathan D. Persky (No. 1144768) NUTTER MCCLENNEN & FISH, LLP155 Seaport Boulevard Boston, MA 02210 Phone: (617) 439-2000 Facsimile: (617) 310-9000 [email protected] [email protected] [email protected] Attorneys for Plaintiffs-Appellants


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TABLE OF CONTENTS

Findings and Rulings (Nov. 22, 2013) [ECF No. 373] .............................................. 1

Order [Granting Motion for Judgment on the Record] (Sept. 30, 2013) [ECF No.

369] .......................................................................................................................... 85

Judgment In a Civil Case (Sept. 30, 2013) [ECF No. 370] ..................................... 88

Memorandum and Order Regarding Defendant Patrick’s Motion to Dismiss and

Defendants’ Motion to Dismiss (Jan. 4, 2011), reported at 771 F. Supp. 2d 142 (D.

Mass. 2011) .............................................................................................................. 89

28 U.S.C. § 1291 .................................................................................................... 107

28 U.S.C. § 1331 .................................................................................................... 108

28 U.S.C. § 1343 .................................................................................................... 109

42 U.S.C. § 622 (Excerpt) ..................................................................................... 111

42 U.S.C. § 624 ...................................................................................................... 115

42 U.S.C. § 670 ...................................................................................................... 118

42 U.S.C. § 671 (Excerpt) ...................................................................................... 119

42 U.S.C. § 675 (Excerpt) ...................................................................................... 123

42 U.S.C. § 1983 .................................................................................................... 127

45 C.F.R. § 74.26 ................................................................................................... 128

45 C.F.R. § 74.51 ................................................................................................... 130

45 C.F.R. § 1355.34 (Excerpt) ............................................................................... 132

45 C.F.R. § 1357.15 (Excerpt) ............................................................................... 137

Mass. Gen. Laws ch. 18C, § 11 ............................................................................. 140

Mass. Gen. Laws ch. 119, § 23 .............................................................................. 144

Mass. Gen. Laws ch. 119, § 26B ........................................................................... 148


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An Act Protecting Children in the Care of the Commonwealth (Mass. Acts ch. 176,

§ 134 (2008) (Excerpt) .......................................................................................... 150

110 Code Mass. Regs. 4.31 .................................................................................... 154

110 Code Mass. Regs. 5.02 .................................................................................... 155

110 Code Mass. Regs. 7.101 .................................................................................. 156

110 Code Mass. Regs. 7.113 .................................................................................. 158

110 Code Mass. Regs. 8.01 .................................................................................... 161

110 Code Mass. Regs. 10.10 .................................................................................. 163


1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) CONNOR B., by his next friend, ) Rochelle Vigurs, ADAM S., by his ) next friend, Denise Sullivan, ) CAMILA R., by her next friend, ) Bryan Clauson, ANDRE S., by his ) next friend, Julia Pearson, SETH ) T., by his next friend, Susan ) Kramer, and RAKEEM D., by his next ) friend, Bryan Clauson, ) individually and on behalf of all ) others similarly situated, ) CIVIL ACTION ) NO. 10-30073-WGY Plaintiffs, ) ) v. ) ) DEVAL L. PATRICK, Governor of ) the Commonwealth of Massachusetts, ) JOHN POLANOWICZ, Secretary of the ) Massachusetts Executive Office of ) Health and Human Services, and ) OLGA I. ROCHE, Acting Commissioner ) of the Massachusetts Department of ) Children and Families, in their ) official capacities, ) ) Defendants. ) )

FINDINGS AND RULINGS

YOUNG, D.J. November 22, 2013

I. INTRODUCTION

Anonymized minors acting on behalf of a class of

approximately 8500 children (collectively, the “Plaintiffs”)

who, after being removed from their family homes due to abuse or

Case 1:10-cv-30073-WGY Document 373 Filed 11/22/13 Page 1 of 84

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2

neglect, have suffered harm or are exposed to harm1 in the

custody of the Massachusetts Department of Children and Families

(“DCF” or the “Department”), bring this suit under 42 U.S.C.

section 1983 against high-level officials in the Commonwealth’s

administrative bureaucracy (collectively, the “Defendants”) for

allegedly circumscribing the myriad constitutional and statutory

rights of the class members. Specifically, the Plaintiffs

contend that the Defendants violated (1) class members’ right to

substantive due process; (2) class members’ constitutionally

guaranteed liberty, privacy, and associational interests,

particularly the right to familial association; (3) certain

provisions of the Adoption Assistance and Child Welfare Act of

1980 (“AACWA”), 42 U.S.C. §§ 670-676, specifically those

pertaining to foster care maintenance payments and

individualized case plans; and (4) class members’ right to

procedural due process. The sheer number and breadth of

allegations raised by the Plaintiffs in this case effectively

amount to an all-out assault on the Massachusetts foster care

system, in which the Plaintiffs request all manner of

declaratory and injunctive relief. The Defendants, for their

part, have moved for judgment on the record.

1 August 15, 2012, was set as the fact cutoff date for

liability purposes. Elec. Order, May 17, 2012.


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3

A. Procedural Posture2

On April 15, 2010, lead plaintiffs Connor B.,3 Adam S.,

Camila R., Andre S., Seth T., and Rakeem D. (collectively, the

“Named Plaintiffs”), by their next friends and on behalf of all

others similarly situated, filed a complaint in this district

against Massachusetts Governor Deval Patrick and the heads of

the Massachusetts Executive Office of Health & Human Services

and DCF. Compl., ECF No. 1. That same day, the Plaintiffs

filed a motion to certify a class and appoint class counsel.

Pls.’ Mot. Class Certification & Appointment Class Counsel, ECF

No. 2. The Defendants moved to dismiss the complaint on August

20, 2010, Mot. Hon. Deval L. Patrick Dismiss Compl. Against Him

Pursuant Fed. R. Civ. P. 12(b)(1) & 12(b)(6), ECF No. 17; Defs.’

Mot. Dismiss Compl. Pursuant Fed. R. Civ. P. 12(b)(1) &

12(b)(6), ECF No. 18, and subsequently filed an opposition to

the Plaintiffs’ motion for class certification, Defs.’ Opp’n

Pls.’ Mot. Class Certification, ECF No. 32.

2 Children’s Rights, one of the Plaintiffs’ counsel in this

matter, have secured settlements with over a dozen other states in similar foster care management disputes. See Susan Ferriss, Class-Action Suit Challenges Massachusetts Foster Care System, Center for Pub. Integrity (Jan. 23, 2013, 6:00 AM), http://www. publicintegrity.org/2013/01/23/12062/class-action-suit-challenges-massachusetts-foster-care-system. Massachusetts is the first to take up the gauntlet and accept the Plaintiffs’ challenge in court. Id.

3 Pursuant to Local Rule 5.3(a), pseudonyms have been used to protect the identities of the children who are parties to this class action.


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4

Following additional filings by both parties, Judge Michael

Ponsor issued a memorandum and order on January 4, 2011, denying

the Defendants’ motions to dismiss and leaving for later

resolution the Plaintiffs’ motion for class certification.

Connor B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142 (D.

Mass. 2011) (Ponsor, J.). Nearly two months later, Judge Ponsor

revisited the remaining motion, granting the Plaintiffs class

certification and referring the case to Magistrate Judge Kenneth

Neiman for further adjudication.4 Mem. & Order Regarding Pls.’

Mot. Certify Class & Appoint Class Counsel, ECF No. 49; Elec.

Order, Feb. 28, 2011. The case was eventually reassigned to

this Court on November 19, 2012. Elec. Notice, Nov. 19, 2012,

ECF No. 203.

On December 3, 2012, the Defendants moved for partial

summary judgment on the Plaintiffs’ substantive due process

count and for full summary judgment on all of the remaining

counts in the Plaintiffs’ complaint. Defs.’ Mot. Partial Summ.

J., ECF No. 209. At a motion hearing held on January 10, 2013,

the Court denied the Defendants’ motion as matter of judicial

economy. Elec. Clerk’s Notes, Jan. 10, 2013, ECF No. 272. The

case proceeded to trial on January 22, 2013. Elec. Clerk’s

Notes, Jan. 22, 2013, ECF No. 291.

4 The Defendants’ attempt to decertify the newly constituted

class proved equally futile. See Connor B. ex rel. Vigurs v. Patrick, 278 F.R.D. 30 (D. Mass. 2011) (Ponsor, J.).


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5

On April 30, 2013, following the close of the Plaintiffs’

case-in-chief, the Defendants filed a motion for judgment on the

record and appended to their motion a memorandum of law in

support. Defs.’ Mot. J. R., ECF No. 316; Mem. Law Supp. Defs.’

Mot. J. R. (“Defs.’ Mem.”), ECF No. 317. The Plaintiffs

submitted a brief in opposition to the Defendants’ motion on May

16, 2013. Pls.’ Mem. Law Opp’n Defs.’ Mot. J. R. (“Pls.’

Opp’n”), ECF No. 356. The motion was heard on May 21, 2013, but

the Court declined to rule on it at the hearing, deciding

instead to take the matter under advisement and adjourn the case

without day. Mot. Hr’g Tr. 37:17-18, May 21, 2013, ECF No. 364.

B. Child Welfare Regulatory Framework

Under Title IV-E of the Social Security Act,5 42 U.S.C.

§§ 670-676, the Children’s Bureau of the Administration for

Children and Families (“ACF”), which sits within the U.S.

Department of Health & Human Services (“HHS”), allots federal

funds to states to assist in their provision of foster care

services. See Title IV-E Foster Care, Children’s Bureau (May

17, 2012), http://www.acf.hhs.gov/programs/cb/resource/title-

ive-foster-care. In order to qualify for Title VI-E funds,

state foster care agencies must meet a long list of federal

requirements. See 42 U.S.C. § 671(a).

5 Title IV-E is also known as the Adoption Assistance and

Child Welfare Act of 1980. Henry A. v. Willden, 678 F.3d 991, 1007 n.9 (9th Cir. 2012).


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6

The receipt of said funds is additionally conditioned upon

participation in and the successful completion of Child and

Family Services Reviews (“CFSRs”). Trial Ex. 808, Children’s

Bureau Child & Family Servs. Reviews Fact Sheet (“CFSR

Overview”) 1. HHS has established seven outcome measures spread

across three categories to grade a state agency’s performance:

(1) A title IV–E agency’s substantial conformity will be determined by its ability to substantially achieve the following child and family service outcomes: (i) In the area of child safety:

(A) Children are, first and foremost, protected from abuse and neglect; and, (B) Children are safely maintained in their own homes whenever possible and appropriate;

(ii) In the area of permanency for children: (A) Children have permanency and stability in their living situations; and (B) The continuity of family relationships and connections is preserved for children; and

(iii) In the area of child and family well-being:

(A) Families have enhanced capacity to provide for their children’s needs; (B) Children receive appropriate services to meet their educational needs; and (C) Children receive adequate services to meet their physical and mental health needs.

45 C.F.R. § 1355.34(b)(1). In addition to these seven outcome

measures, HHS has adopted six statewide data indicators to

assist in determinations of whether a state is in substantial

conformity with Title IV-E: (1) the recurrence of maltreatment;


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7

(2) the incidence of child abuse and/or neglect in foster care;6

(3) the number of re-entries into the foster care system; (4)

the length of time to achieve reunification; (5) the length of

time to achieve adoption; and (6) the stability of foster care

placement.7 See Title IV-E Foster Care Eligibility Reviews and

Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020,

4024 (Jan. 25, 2000) (codified at 45 C.F.R. pts. 1355-1357); see

also Admin. Children & Families, U.S. Dep’t Health & Human

Servs., Background Paper: Child and Family Services Reviews

National Standards 1 (2012), available at http://www.acf.hhs.

gov/sites/default/files/cb/cfsr_background_paper.pdf.

States that fail to meet the requirements of a CFSR must

draft and implement a Program Improvement Plan (“PIP”) that

establishes performance improvement goals in the areas in which

the states are not in substantial conformity with federal

standards. See CFSR Overview 2. There is great incentive to

6 This indicator has since changed to refer to the absence

of maltreatment of children in foster care. See infra Part II.A.

7 The first two statewide indicators pertain to the first

safety outcome –- namely, that “[c]hildren are, first and foremost, protected from abuse and neglect,” 45 C.F.R. § 1355.34(b)(1)(i)(A) -- whereas the last four statewide data indicators pertain to the first permanency outcome -- namely, that “[c]hildren have permanency and stability in their living situations,” 45 C.F.R. § 1355.34(b)(1)(ii)(A). See Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020, 4024 (Jan. 25, 2000) (codified at 45 C.F.R. pts. 1355-1357).


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keep pace with the goals set forth in the PIPs, as states that

fail to do so are assessed penalties as punishment for their

noncompliance. See id.

C. Child Welfare Standards

National child welfare standards established by the Council

on Accreditation (“COA”) and the Child Welfare League of America

(“CWLA”) provide the normative backdrop against which DCF’s

challenged practices and policies must be cast.8

COA is an accrediting organization that performs research

on best practices in child welfare and sets professional

standards for child welfare agencies. See Trial Tr. vol. 11,

33:5-9, 33:23-34:1, Feb. 28, 2013, ECF No. 335. COA standards

are derived both from the opinions of independent panels

(comprised of experts drawn from across the social services

spectrum) and from the relevant academic literature. Rule

30(b)(6) Dep. Council Accreditation, Richard Klarberg 37:19-20,

41:20-42:4, Aug. 9, 2012, ECF No. 226-1. Standards that have

been transcribed in draft form are then disseminated for comment

to individuals who have expertise in the applicable field. Id.

8 Admittedly, neither COA nor CWLA standards impose upon

child welfare agencies obligations that have the force of law. See Trial Tr. vol. 19, 73:20-75:18, 87:12-25, May 7, 2013, ECF No. 347 (noting that COA and CWLA standards are intended to be viewed aspirationally). Nevertheless, given the standards’ widespread usage, this Court elevates them as reflective of the bar to which child welfare agencies are generally expected to measure up.


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9

at 41:14-19, 46:17-22. The comments received are customarily

incorporated into existing standard statements and reviewed

again by the independent panelists, id. at 47:7-12, making the

process of COA standard-setting rather iterative and dynamic.

CWLA is a public, non-profit agency that, like COA,

conducts best-practices research and sets industry standards for

child welfare services. Trial Tr. vol. 11, 33:15-21. CWLA

standards are set by a process similar to the one used for the

development of COA standards. Rule 30(b)(6) Dep. Child Welfare

League Am., Linda Spears 77:12-78-24, Aug. 14, 2012, ECF No.

226-1.

D. Expert Witness Testimony

Over the course of the bench trial, seven expert witnesses

(all for the plaintiff) were called to the stand to testify.

The Court takes the time here to provide a brief biography of

the witnesses and explain their particular relevance or

contribution to the matter under review.

1. Named Plaintiff Case File Review

Dr. Lenette Azzi-Lessing (“Dr. Azzi-Lessing”) is a tenured

associate professor of social work at Wheelock College, located

in Boston, Massachusetts. Trial Tr. vol. 3, 103:3-18, Jan. 25,

2013, ECF No. 327. Dr. Azzi-Lessing conducted a review of five

of the Named Plaintiffs’ DCF case files, which date from the

children’s entry into the foster care system through early 2012.


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Trial Tr. vol. 6, 76:5-7, 79:3-10, Feb. 4, 2013, ECF No. 330.

The aim of Dr. Azzi-Lessing’s case file review was to assess

DCF’s effectiveness in providing the five Named Plaintiffs with

“safety, permanency and well-being.” Id. at 71:14. In reaching

her conclusions, Dr. Azzi-Lessing drew upon COA and CWLA

standards, academic literature, federal welfare regulations,

internal DCF policies, and her own teaching experiences. See

id. at 71:9-14, 73:14-74:2.

2. Children’s Research Center Case File Study

The Children’s Research Center (“CRC”), a division within

the National Council on Crime & Delinquency, was retained by the

Plaintiffs to perform a study of DCF case files to determine

whether and the extent to which DCF met prevailing standards of

case practice in foster care. See Trial Tr. vol. 4, 4:8-16,

20:15-20, Jan. 30, 2013, ECF No. 328. Dr. Raelene Freitag (“Dr.

Freitag”), the director of CRC, managed the study and was a co-

author of the report that contained CRC’s findings. Id. at

4:12-13, 30:7-15. Dr. Kristen Johnson (“Dr. Johnson”), a senior

researcher at NCCD, assisted Dr. Freitag at all stages of the

study, performing study and research design, establishing data

collection protocols, training case readers, conducting data

cleaning and analysis, and co-authoring the CRC report. See id.

at 22:25-23:2; Trial Tr. vol. 5, 67:22-68:3, 78:1-15, Jan. 31,

2013, ECF No. 329. Dr. Erik Nordheim (“Dr. Nordheim”), a


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statistics professor at the University of Wisconsin-Madison in

Madison, Wisconsin, served as Dr. Johnson’s consultant and

advised CRC on its study’s sample design. See Trial Tr. vol. 4,

31:14-32:2; Trial Tr. vol. 6, 33:19-21, 36:5-14.

CRC conducted a longitudinal study that involved an

examination of a random and representative sample of 484 DCF

case files, equally divided into two cohorts of foster children

who were followed for a period of thirty months.9 See Trial Ex.

1066, Compliance Foster Care Case Practice Standards Mass. Dep’t

Children & Families: Longitudinal Study Two Cohorts (“CRC

Study”); Trial Ex. 1065, Compliance Foster Care Case Practice

Standards Mass. Dep’t Children & Families: Longitudinal Study

Two Cohorts app.C (“CRC Study Appendix C”); see also Trial Tr.

vol. 4, 24:24-25:2, 27:2-4, 31:6-13, 32:12-22; Trial Tr. vol. 5,

84:6-9. The first cohort, labeled the “entry cohort,” was

comprised of children who had entered the Massachusetts foster

care system during the twelve-month window between July 1, 2009,

and June 30, 2010. See Trial Tr. vol. 4, 25:6-9. This

particular group of foster children was selected for the purpose

of assessing current DCF practice for children just entering

foster care. Id. at 25:9-13. The second cohort, labeled the

“two-year cohort,” gave CRC a picture of long-term DCF practice,

9 None of the Named Plaintiffs’ case files were among those

sampled in the CRC study. Trial Tr. vol. 4, 28:8-10.


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as the cohort consisted of children who had been in foster care

for two or more years as of July 1, 2009. See id. at 25:14-20,

55:11-12. The CRC study covered a wide range of “key points” in

foster care practice, touching upon reunification, permanency,

placement stability, maltreatment in care, and family

visitation, among other subjects. Trial Tr. vol. 5, 77:13-22.

3. Psychotropic Medication Review

Dr. Christopher Bellonci (“Dr. Bellonci”) is a board-

certified adult and child psychiatrist who presently works as an

assistant professor at Tufts University School of Medicine and

as an attending psychiatrist at Tufts Medical Center, both of

which are located in Boston, Massachusetts. See Trial Tr. vol.

1, 111:24-112:3, 119:24-120:3, Jan. 22, 2013, ECF No. 325. The

Plaintiffs retained Dr. Bellonci in March 2012 to review three

of the Named Plaintiffs’ case files and produce a report

speaking to the degree to which DCF met the standards governing

child welfare practices concerning the administration of

psychotropic medication and mental health services. Trial Tr.

vol. 2, 36:2-6, 36:21-37:10, 114:13-19, Jan. 24, 2013, ECF No.

326. He paid particular attention to whether DCF obtained

informed consent from the relevant parties to whom they were

responsible, provided adequate oversight of the psychotropic

drug administration process, and had in place an adequate

monitoring system. See id. at 116:21-117:2. To support his


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findings, Dr. Bellonci relied upon his personal experience

working with the foster care population and knowledge of other

states’ foster care systems, academic literature, federal

guidelines, and standards set forth by the American Academy of

Child and Adolescent Psychiatry (“AACAP”). See id. at 38:3-10,

43:11-16, 43:25-44:10, 77:4-13.

4. Management Reviews

Catherine Crabtree (“Crabtree”) is a senior project leader

at the Center for Government and Public Affairs at Auburn

University at Montgomery in Montgomery, Alabama, where she

consults with public agencies and non-profit institutions on

questions concerning organizational reform and performance

management. Trial Tr. vol. 11, 7:19-22, 8:5-12. Crabtree also

has an extensive background in child welfare, mental health, and

other social services work in Tennessee and Alabama. See id. at

10:6-13:1, 14:25-16:7, 16:19-18:15. In the spring of 2012, the

Plaintiffs contacted Crabtree to do a management review of the

Massachusetts foster care system. See id. at 24:3-14. The

management review focused on “four critical building blocks” of

child welfare agency practice, id. at 29:18-19: (1) the number

of skilled and trained DCF personnel; (2) the balance of foster

care placements and services; (3) the presence of quality

assurance systems; and (4) the existence of accountable and

stable leadership. See id. at 29:15-31:2. In the course of her


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review, Crabtree turned to a variety of sources, including state

and federal regulations, national professional standards, DCF’s

internal policies and communications, and deposition testimony.

See id. at 25:14-26:3.

Arburta Jones (“Jones”) boasts a long work history in

various positions in the child and social welfare systems in New

Jersey. See Trial Tr. vol. 8, 115:6-135:1, Feb. 6, 2013, ECF

No. 332. The Plaintiffs retained Jones in May 2012 to study

issues related to the safety of children in DCF custody who are

situated in out-of-home placements. Id. at 135:4-14. Jones’s

review focused on the quality of four “hinge pins” of child

welfare, id. at 141:16: (1) family visitation; (2) foster home

licensing; (3) foster care investigations; and (4) internal and

external accountability systems. Id. at 141:13-142:1. Jones’s

analysis depended largely upon the depositions of DCF staff and

executives; DCF’s internal data, reports, and communications;

CWLA and COA standards; data produced by the Massachusetts

Office of the Child Advocate (the “OCA”); and state and federal

regulations. Id. at 135:24-136:11, 138:11-20.


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II. FINDINGS OF FACT10

The amount of material that this Court has been called upon

to review to inform its findings is, quite frankly, voluminous:

over the course of the last nine months, the Court has

scrutinized numerous depositions and party filings, heard

twenty-four days of trial testimony,11 read nearly 3000 pages of

trial transcript, and studied just under 1200 trial exhibits

(which themselves collectively comprised tens of thousands of

10 A motion for judgment on the record, like a motion for

judgment on partial pleadings made under Federal Rule of Civil Procedure 52(c) (“Rule 52(c)”), grants a district court occasion to enter judgment for a party prior to the conclusion of a jury-waived trial “[i]f a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue.” Fed. R. Civ. P. 52(c). Rule 52(c), however, states that “[a] judgment on partial findings must be supported by findings of fact and conclusions of law.” Id. (emphasis added). The Court bristles at this requirement, as it effectively gives short shrift to the party that has yet to put on all of its evidence. (Indeed, the Defendants were able to present only two of the fifteen witnesses that they expected to call, so the trial record is likely incomplete. See Joint Pretrial Mem., App. B, Defs.’ Witness List 2, ECF No. 277-2.) Nevertheless, this Court is hamstrung by its obligation to obey Rule 52(c)’s commandment. It must be understood, then, that these findings may overstate matters in the Plaintiffs’ favor even though ultimately they have fallen short.

11 Fifty days -- twenty for the Plaintiffs’ case-in-chief

and up to thirty for the Defendants’ -- had originally been allotted for this trial. Elec. Clerk’s Notes, Jan. 16, 2013, ECF No. 278. The Defendants’ motion for judgment on the record, however, gave the Court appropriate reason to suspend the proceedings. Defs.’ Mot. Directed Verdict, ECF No. 316.


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pages of documents).12 Obviously, it would be near impossible to

take into consideration every last shred of evidence on every

topic broached in this case. Naturally, then, the Court

necessarily is selective in its reproduction of the record,

condensing the most salient kernels of information and

deemphasizing (or altogether omitting) those facts that are not

as germane to this Court’s conclusions.

A. Maltreatment in Foster Care

HHS has conducted two rounds of CFSRs, the first spanning

the years from 2000 to 2004 and the second spanning the years

from 2007 to 2010. See Nat’l Conference of State Legislatures,

State Progress Toward Child Welfare Improvement 2 (2010),

available at http://www.ncsl.org/documents/cyf/progress_cw_

improvement.pdf. For the first-round CFSRs, HHS set the

national standard for the acceptable incidence of child abuse or

neglect in foster care at 0.57%, meaning that a 0.57% rate of

substantiated maltreatment would constitute the seventy-fifth

percentile of all states’ performance on this statewide data

indicator.13 See Trial Ex. 488, Background Paper: Child & Family

12 The Plaintiffs’ proposed findings of facts alone,

submitted in conjunction with their opposition to the Defendants’ motion, measures a prolix 396 pages in length. See Pls.’ Mem. Law. Opp’n Defs.’ Mot. J. Record, Ex. A, Pls.’ Proposed Findings Fact, ECF No. 356-1.

13 The CFSR implementing regulations set the 75th percentile

of the states’ performance as “[t]he national standard for each


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Servs. Reviews Nat’l Standards 2-3. The first-round CFSR for

Massachusetts, completed in 2001, found a 0.85% incidence of

child abuse or neglect in 1997 and a 0.94% incidence of child

abuse or neglect in 1999, rates that were 0.28 and 0.37

percentage points above the national standard, respectively.14

Trial Ex. 55, Mass. Statewide Assessment: Mass. Child & Family

Servs. Review (“First-Round CFSR Statewide Assessment”) CSF-

000000425. For the second-round CFSRs, HHS reframed this

statewide data indicator as the absence of maltreatment of

children in foster care by foster parents or facility staff and

pegged the national standard for this new metric at 99.68%15

(effectively tightening the old standard from 0.57% to 0.32%).

See The Data Measures, Data Composites, and National Standards

to be Used in the Child and Family Services Reviews, Notice, 71

statewide data indicator.” Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed. Reg. 4020, 4024 (Jan. 25, 2000) (codified at 45 C.F.R. pts. 1355-1357).

14 Data for 1998 is unavailable because, during that year,

the Department was in the process of converting its management information system. See Trial Ex. 56, Child & Family Servs. Review: Final Assessment CSF-000000319.

15 The second-round CFSR national standard was originally

set at 99.67%. The Data Measures, Data Composites, and National Standards to be Used in the Child and Family Services Reviews, Notice, 71 Fed. Reg. 32,969, 32,980 tbl.1 (June 7, 2006). The standard was raised to its present level after HHS undertook a revision of CFSR standards to bring these measures in line with new data. The Data Measures, Data Composites, and National Standards to be Used in the Child and Family Services Reviews; Corrections, Notice, 72 Fed. Reg. 2881, 2881 (Jan. 23, 2007).


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Fed. Reg. 32,969, 32,973 (June 7, 2006); The Data Measures, Data

Composites, and National Standards to be Used in the Child and

Family Services Reviews; Corrections, Notice, 72 Fed. Reg. 2881,

2886 tbl.A (Jan. 23, 2007). In other words, if 99.68% or more

of foster children statewide were not victims of a substantiated

or indicated maltreatment, that state would be deemed to have

met the national standard. The second-round CFSR for

Massachusetts, completed in 2007 and relying in part upon state

child welfare data from 2004, 2005, and the first three months

of 2006, found a 98.72% absence of child abuse or neglect in the

Commonwealth during the time period, 0.37 percentage points

below the national standard and marking a decline in performance

from the first-round CFSR. See Trial Ex. 58, Final Report:

Mass. Child & Family Servs. Review (“Second-Round CFSR Final

Report”) CSF-000000747, CSF-000000750.

Due to its poor performance in the second-round CFSR,

Massachusetts submitted a PIP for approval by HHS. See

generally Trial Ex. 33, Mass. Child & Family Servs. Review

Program Improvement Plan. The Department agreed to achieve an

improvement goal of 99.03%, see id. at 54, but later negotiated

a lower improvement goal of 98.8%, Trial Ex. 587, DCF PIP

Quarterly Report: Quarter One DCF000063281. DCF met the latter

negotiated improvement goal. Trial Ex. 588, DCF PIP Quarterly

Report: Quarter Two DCF000554885.


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A third-round CFSR, though widely expected, has not yet

taken place. See Children’s Bureau, U.S. Dep’t of Health and

Human Servs., Child and Family Services Review: Technical

Bulletin #6 (Feb. 4, 2013), available at http://www.acf.hhs.gov/

sites/default/files/cb/cfsr_tb6.pdf. That said, HHS’s annual

publication reporting child maltreatment data serves to fill the

gaps for more recent years. This publication provides state-by-

state data with respect to the absence of maltreatment in foster

care for a given federal fiscal year. See, e.g., Trial Ex.

1088, Child Maltreatment 2010; Trial Ex. 1161, Child

Maltreatment 2011. From 2006 to 2011, Massachusetts reported

absence of maltreatment rates of 99.05%, 99.14%, 98.93%, 99.16%,

99.22%, and 99.30%, respectively. See Child Maltreatment 2010,

at 57 tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15. These

results, when compared to those of other states, placed the

Commonwealth fourth worst out of forty-six reporting states in

2006, the seventh worst out of forty-six reporting states in

2007, the fourth worst out of forty-eight states in 2008, the

seventh worst out of forty-nine states in 2009, the eighth worst

out of forty-seven states in 2010, and the seventh worst out of

forty-nine states in 2011.16 See Child Maltreatment 2010, at 57

tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15.

16 DCF’s own internal data shows that the agency’s

performance in the area of child maltreatment has slipped since


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The CRC longitudinal study also documented rates of alleged

abuse or neglect committed against children in the study’s entry

and two-year cohorts. Among 242 children in the entry cohort,

forty-four allegations of abuse or neglect during the DCF

observation period were reported. See CRC Study tbl.18. Twelve

of these allegations were substantiated, causing children to be

removed from their environments in eleven cases.17 Id. This

means that roughly 5% of the children in the entry cohort sample

population were victims of substantiated abuse or neglect, and

that approximately 91.6% of these children were removed from

their environments.

The CRC study reported comparable incidence rates for the

two-year cohort. Among 242 children in the two-year cohort,

fifty-six allegations of abuse or neglect during the DCF

observation period were reported. Id. tbl.45. Ten allegations

were substantiated, and children were removed from their

2011. See Trial Ex. 964, Child & Family Servs. Review Measures DCF011097888, DCF011421629 (reporting a 99.2% statewide rate of absence of maltreatment in foster care for the twelve-month periods ending March 31, 2012, and June 30, 2012).

17 Two of these twelve substantiated allegations fall into a subcategory of allegations made specifically against an individual in the foster home. See CRC Study tbl.18. But the data shows that five children in this subcategory were removed from their environments. See id. The Court admits its uncertainty as to why more children were removed from their placements than made substantiated allegations in this subcategory, but has no cause to inquire further into this matter.


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environment in eight of these cases.18 Id. This means that

roughly 4.1% of the children in the two-year cohort sample

population were victims of substantiated abuse or neglect during

the observation period, and that approximately 80% of these

children were removed from their environments.

Statistics on the two-year cohort prior to the observation

period are striking. Of 240 children in the two-year cohort,

forty-three children were victims of substantiated maltreatment

prior to July 2009. See CRC Study Appendix C tbl.C59. This

means that at the start of the observation period, 17.9% of

children in the two-year cohort had already experienced

substantiated maltreatment while in DCF custody. In roughly

37.2% of these cases, the children had been substantiated

victims between two and nine times. See id.

The five Named Plaintiff case files reviewed by Dr. Azzi-

Lessing documented egregious instances of maltreatment. For

example, at the age of six, Connor B. was placed in a foster

home for four to six weeks with a teenager known to be at risk

for sexually abusing younger children. See Trial Tr. vol. 6,

83:12-22, 84:10-23. He reportedly raped Connor B. repeatedly

during the course of his stay. See id. at 85:15-23. The

18 Once again, the Court expresses confusion regarding the

reported statistics, this time because the number of sample children removed from their parental homes is greater than the number of substantiated incidents of abuse or neglect in those settings. See CRC Study tbl. 45.


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teenager was subsequently removed from the foster home, and DCF

revoked the foster home’s license to host foster children. Id.

at 115:24-116:13. In the case of Adam S., DCF initially

screened out complaints of abuse or neglect that allegedly took

place in Adam S.’s adoptive home, which included instances of

corporal punishment and force-feeding. Id. at 117:9-19.

Eventually, a DCF investigator initiated a review of the foster

home, which resulted in the removal of certain foster children

from the home. Id. at 118:18-22. But because the investigator

did not provide the remaining children with protective services,

Adam S. and his sisters suffered brutal beatings by their

adoptive parents until they were ultimately removed from the

adoptive home as well. See id. at 118:18-120:6. Andre S. and

his sister, both under the age of four, resided in an

overcrowded foster home with seven other children for over two

years. See Trial Tr. vol. 7, 28:1-4, 28:13-21, Feb. 5, 2013,

ECF No. 331. At a later preadoptive foster placement at their

cousin’s home, Andre S. and his sister were reportedly prompted

to engage in sexual acts with one another and to watch the

cousin and her boyfriend have sex and take drugs together. See

id. at 35:14-19, 38:14-22. Andre S.’s sister also reported

being raped by the cousin’s boyfriend on numerous occasions.

Id. at 38:23-39:1. The children were eventually removed, and


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DCF later investigated and substantiated the majority of the

reported events. See id. at 39:2-9.

Sworn trial testimony provided by Lauren James (“James”), a

former ward of DCF custody, also speaks to maltreatment in care.

See Trial Tr. vol. 1, 28:24-25, 29:25:30-2. James attested to a

wide range of negative experiences in foster care, including,

among other things, sharing beds with other foster children, id.

at 32:24-33:1, performing excessive amounts of housework, id. at

35:11-36:12, having inadequate food, id. at 36:13-37:15, having

strained contact with family members, id. at 39:17-24, and

taking prescribed psychotropic medications beginning at age six

or seven, id. at 62:8-24.

B. Family Visits and Placements

The maintenance of family relationships is an issue of key

concern for foster care agencies. According to DCF policy,

foster children must be given the opportunity to receive their

parents and siblings on visits at least once per month. Trial

Ex. 1, DCF Case Practice Policy & Procedures Manual DCF POL

(7/08) 140. Children taken into foster care custody are also

expected to be relocated to a foster home or other placement

with or in close proximity to their siblings and other family

members, unless the placement would endanger a child’s safety.

See 42 U.S.C. § 671(a)(31)(A); Mass. Gen. Laws ch. 119, § 23(c);

110 Mass. Code Regs. 7.101(1)(b), (e). By natural extension,


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then, Massachusetts regulations express an unambiguous

preference for placements with relatives, known as “kinship

placements,” and placements of children into homes in which

there are no other foster children, known as “child-specific

placements,” over other potential arrangements. See 110 Mass.

Code Regs. 7.101(2)(a)-(b) (listing “placement with a kinship

family” and “placement with a child-specific family” atop the

hierarchy of possible placement resources). DCF must screen

kinship placements and child-specific placements before a foster

child is relocated, however, and the Department is statutorily

obliged to reassess these placements on an annual basis. 110

Mass. Code Regs. 7.108(1)-(2), 7.113(1).

In its first-round CFSR, Massachusetts’s performance in

achieving continuity in family and area relationships was found

to be in substantial conformity with federal law. Trial Ex. 56,

Child & Family Servs. Review: Final Assessment (“First-Round

CFSR Final Assessment”) CSF-000000331; see also id. at CSF-

000000331-34 (dubbing as “strengths” Massachusetts’s efforts to

ensure that children in out-of-home placements remained in close

proximity to their former communities, maintained relationships

with their families, and were placed in safe homes with

relatives). The Commonwealth did not achieve these results in

the second round, however. See Second-Round CFSR Final Report

CSF-000000780-91 (labeling Massachusetts’s performance with


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respect to placements with siblings, kinship placements, and

preserving family connections as areas needing improvement). If

one were to extrapolate from the results of the CRC study, it

would appear that child-family visits are a relatively rare

occurrence: only 20.9% and 37.6% of children in the entry cohort

received consistent monthly visits from siblings and parents,

respectively, for the entirety of the thirty-month review

period.19 CRC Study tbl.16.

Nor does Massachusetts boast a sterling record with respect

to the suitability of placements. Roughly 31.9% of children in

DCF custody have been placed outside of their local home area,

and some 18.6% of children were placed altogether outside their

region of origin,20 see Trial Ex. 418, Proximity Placement Tables

12, which makes visits with family members and caseworkers,

commuting to and from school, and attending doctor’s

appointments more difficult, see Trial Tr. vol. 11, 118:2-20.

The CRC study found that with respect to sibling placement, 69%

of children in the entry cohort with siblings also in foster

care were placed with at least one sibling for at least part of

19 In fact, only 40.2% of children in the entry cohort were

visited by any kin whatsoever in the thirty-month window. CRC Study tbl.16. This memorandum omits reference to parallel data for the two-year cohort, as certain omissions made the information unhelpful for analytical purposes. See id. tbl.43b.

20 These figures are accurate as of March 31, 2012, the latest date for which data has been provided. See Trial Ex. 418, Proximity Placement Tables 12.


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26

their time in care, and 49.5% of children in the entry cohort

were placed with all of their siblings for at least part of

their time in foster care. See CRC Study tbl.8. The rate of

sibling placement for children in the two-year cohort was

markedly worse: only 43.9% of children were placed with at least

one sibling, and a mere 18.7% of children were placed with all

of their siblings. See id. tbl.37. Reasons for the lapses in

sibling placements were documented in only 53.8% of cases in the

entry cohort and 38.4% of cases in the two-year cohort. CRC

Study Appendix C tbl.C28. In addition, children are sometimes

removed to kinship and child-specific placements that have not

yet received formal authority to operate. See Trial Ex. 512,

Unapproved Homes Active Placements (reporting the list of

unapproved kinship and child-specific homes in the Boston,

Northern, and Southern regions with active placements).

C. Placement Stability

Placement stability is another goal that often proves

elusive in Massachusetts. DCF regularly makes use of a variety

of short-term placements. See, e.g., Dep. Joy E. Cochran

(“Cochran Dep.”) 159:22-160:23, Apr. 13, 2012 (describing DCF’s

use of night-to-night placements, where foster children are

placed for periods of about a week or less and then moved to

other locations); Dep. Raymond W. Pillidge (“Pillidge Dep.”)

184:17-185:15, Mar. 7, 2012 (describing DCF’s use of hotline


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27

homes, where foster children may be placed for a few days or a

weekend in the event that there is a lack of available foster

homes). These short-term placements disrupt the lives of

children in care and are often used for purposes other than

those for which they were designed. See, e.g., Pls.’

Designations Fact Dep. Mary Gambon (“Gambon May Dep.”) 165:24-

167:17, May 14, 2012, ECF No. 226-1 (confirming former DCF

Commissioner Angelo McClain’s21 (“McClain”) belief that hotline

homes and night-to-night placements are “not good for kids,” id.

at 166:6-7, and agreeing that multiple placements are harmful to

foster children, id. at 167:13-15); Pillidge Dep. 184:17-185:1

(agreeing that hotline homes are to be used only for emergency

placements after the close of regular business hours); see also

110 Mass. Code Regs. 7.101(2)(e) (positioning “placement in a

shelter/short term program or group home” on a lower rung of a

prioritized list of placement options).

Additional problems are posed by DCF’s reliance on

Stabilization, Assessment and Rapid Reintegration (“STARR”)

facilities and Intensive Foster Care (“IFC”) placements. STARR

facilities are intended to be used as “up-to-45-day placement[s]

for children or youth who may be coming into the department’s

care or custody . . . [and who may warrant] a period of more

21 Commissioner McClain succeeded Commissioner Harry Spence,

presently the Administrator of the Massachusetts Trial Court.


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28

intensive assessment and stabilization before determining the

next appropriate level of care.” Pls.’ Designations Rule

30(b)(6) Dep. Robert E. Wentworth, Jr. Re: Purchased Servs.

Licensing, Delivery, & Oversight 13:2-8, Dec. 29, 2011, ECF No.

226-1. Likewise, IFC programs “provide therapeutic services and

supports in a family-based placement setting to children and

youth [who] . . . are transitioning from a residential/group

home level of care . . . or discharging from a hospital

setting.” Trial Ex. 385, Intensive Foster Care Scope Serv.

DCF000465967. Due to a lack of available foster homes, however,

foster children are frequently moved into STARR facilities and

IFC placements even when they do not meet the eligibility

criteria for entering such placements. See Trial Ex. 407, Email

Frances Carbone to Perry Trilling & Amy Kershaw DCF003355182

(conveying a DCF’s employee stated reasons for using STARR

facilities, including “provid[ing] quick family treatment

sometimes to diffuse the situation so that the child can return

home”); Gambon May Dep. 213:9-17 (describing DCF’s practice of

“hoteling,” which refers to the assignment of a foster child to

an IFC placement even if the child does not exhibit the

requisite behavior or medical conditions that would qualify her

for the placement). In certain instances, children remain in

these facilities for longer than is recommended. See, e.g.,

Trial Ex. 673, N. Regional Office - Apr. 2011, at 1 (revealing


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29

that twenty-one children in DCF’s Northern Region remained in a

STARR facility for longer than the prescribed forty-five-day

period).

These persistent placement problems can primarily be traced

to a single root cause: there is a severe shortage in the number

of foster homes in Massachusetts. DCF’s general goal is to

maintain a pool of around 4000 unrestricted homes for foster

care placements, see Pls.’ Designations Rule 30(b)(6) Dep. Mary

Gambon Re: Recruitment & Retention Foster Homes (“Gambon Oct.

Dep.”) 94:12-95:12, Oct. 18, 2011, ECF No. 226-1, but the

Department has fallen short of that target since the late 1990s,

Trial Ex. 955, DCF Quarterly Reports, 2008-2012, Tab Q3 2012, at

62 fig.28. Staffing shortfalls contribute substantially to the

drag in foster home recruitment. See, e.g., Gambon Oct. Dep.

50:9-51:7 (explaining that four additional statewide recruiters

would be necessary in order to fulfill DCF’s recruitment

objectives); cf., e.g., id. at 17:14-18 (certifying that DCF’s

central office in Boston has only four employees dedicated, and

only in part, to the recruitment of foster homes).

What’s more, neither bolstering the administrative ranks

nor obtaining the requisite number of foster homes will resolve

the ongoing placement challenges related to ensuring a child’s

unique fit with a prospective placement, a consideration which

rightly figures prominently in placement decisions. See Gambon


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30

Oct. Dep. 96:20-97:14 (“At any point in time, when you look at

the number of homes that [DCF] ha[s] . . . you’ll have sometimes

upwards of 1,000, 1,500 homes without placements. . . . [I]t’s

all about matching the right home. . . . [W]e’re looking at are

we able to bring in homes that can take sibling groups, are we

able to bring in homes that can take certain types of behavior?

Are we able to bring in homes that can work more closely with

families? Are we able to bring in homes that can commit to a

family over time as opposed to taking a child for three to five

days until we can find another home? So a lot of it is not just

based on numbers but also the type of homes you look at.”); cf.

Trial Ex. 671, Findings Initial Child & Family Service Reviews:

2001-2004, at 22 (including “[m]ismatching placements to

children’s needs” among common concerns regarding placement

stability).

D. Permanency

Because substitute care is a less-than-optimal outcome for

children, achieving permanency for children in foster care is

among DCF’s highest-priority objectives. See 110 Mass. Code

Regs. 1.02(3)-(4). To this end, DCF is called upon to “direct

[its] efforts toward reunification of child(ren) and parent(s),”

and “[a]s soon as it is determined that reunification is not

feasible, the Department [is instructed to] take swift action to

implement another permanent plan, such as adoption or


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guardianship.” 110 Mass. Code Regs. 1.02(4). Massachusetts

regulations mandate that DCF provide to every family receiving

foster care services a service plan that lays out the conditions

necessary to achieve one of three goals, the two most relevant

being (1) the reunification of a foster child with her family,

or (2) the provision of an alternative permanent home for a

foster child. 110 Mass. Code Regs. 6.01(1)(b)-(c), 6.02.

One of the principal ways to gauge success in this area is

to appraise the rate at which foster children who have exited

the foster care system reenter it. See Trial Tr. vol. 19, 16:4-

17:1, May 7, 2013, ECF No. 347. In the first-round CFSR,

Massachusetts’s rate of reentry was 22.3%, more than two-and-a-

half times greater than the national standard of 8.6% during the

2000-2001 review period. First-Round CFSR Final Assessment CSF-

000000306. By the second-round CFSR, only 15.7% of children

leaving the Massachusetts foster care system reentered it, a

figure still above the national median performance of 15% during

the 2006-2007 review period. Second-Round CFSR Final Report

CSF-000000765. In federal fiscal year 2010, 15.3% of

Massachusetts foster children who were discharged on the basis

of reunification reentered foster care within twelve months from

the date of discharge, Children’s Bureau, U.S. Dep’t of Health &

Human Servs., Child Welfare Outcomes 2008-2011: Report to

Congress 178 (2012), available at


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32

http://www.acf.hhs.gov/sites/default/files/cb/cwo08_11.pdf

[hereinafter Child Welfare Outcomes 2008-2011],22 which placed

the Commonwealth forty-first among fifty-two reporting

jurisdictions, Trial Ex. 1084, Table Summaries Child Welfare

Outcomes Data 2010 (“Child Welfare Outcomes Tables 2010”) 6.23

The next year, the rate of reentry crept up to 15.6%, Child

Welfare Outcomes 2008-2011, at 178, and Massachusetts’s national

rank fell to forty-third, Trial Ex. 1085, Table Summaries Child

Welfare Outcomes 2008-2011: Report Congress (“Child Welfare

Outcomes Tables 2008-2011”) 7. Although the reported rates of

22 Technically, the Children’s Bureau report on child

welfare outcomes publicizing statistics from federal fiscal years 2008 to 2011 is not in evidence. See Parties’ Am. Uncontested Ex. List., Ex. A, Joint Uncontested Exs., ECF No. 367-1. The Court did, however, admit in evidence under Federal Rule of Evidence 1006 a series of tables prepared by Elissa Glucksman Hyne (“Hyne”), a senior policy analyst at Children’s Rights, the national watchdog organization that spearheaded this action against the Defendants on behalf of the Plaintiffs. See Trial Tr. vol. 8, 52:6-11, 53:7-20, 57:19-20; Trial Ex. 1084, Table Summaries Child Welfare Outcomes Data 2010; Trial Ex. 1085, Table Summaries Child Welfare Outcomes 2008-2011: Report Congress. Hyne’s tables reproduce data found in the Children’s Bureau report. See Trial Tr. vol. 8, 69:7-9. Consequently, the Court cites to the online-accessible version of the report.

23 In addition to summarizing federal child welfare outcome

data, Hynes’s tables assigned rankings to each state, the District of Columbia, and Puerto Rico on the basis of their performance on various child welfare outcome measures. See Trial Tr. vol. 8, 56:4-15. The Court declined to admit the rankings, given that they were the product of “simple arithmetic.” Id. at 57:22; see id. at 57:19-23. The Court has since independently verified Hyne’s calculations and thus gives credence to her ranked orderings as a reflection of the Court’s own arithmetic computation.


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33

reentry from federal fiscal years 2010 and 2011 marked

improvements over those seen in the prior decade, they

nevertheless deviated fairly significantly from the national

medians at that time. See Child Welfare Outcomes 2008-2011, at

viii tbl.2 (showing median rates of 12.6% and 11.8% for 2010 and

2011, respectively).

Where reunification is impossible or impracticable, the

timeliness of adoptions serves instead as a bellwether of

progress in permanency. See Trial Tr. vol. 19, 17:13-18:6.

According to results from the first-round CFSR for federal

fiscal year 1999, the median length of time for foster children

in Massachusetts to achieve adoption was 49.28 months. First-

Round CFSR Statewide Assessment CSF-000000428-30. During

federal fiscal year 2010, Massachusetts achieved a composite

score24 of 83.7 in timeliness of adoptions, Child Welfare

24 The composite score reflects an aggregate appraisal of

five individual measures related to the timeliness of adoptions: (1) the percentage of children discharged from foster care to a finalized adoption less than twenty-four months from the date of the last removal from home; (2) the median length of stay in care, from the date of the last removal to the date of adoption, of all children in foster care who were discharged to a finalized adoption; (3) the percentage of children in foster care who were in care for seventeen or more continuous months as of the first day of the year and who were discharged to a finalized adoption by the final day of the year; (4) the percentage of children who were in care for seventeen or more continuous months and not legally free for adoption as of the first day of the year, who then became legally free for adoption during the first half of the year; and (5) the percentage of


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34

Outcomes 2008-2011, at 178, which represents forty-seventh place

among fifty-two reporting jurisdictions, Child Welfare Outcomes

Tables 2010, at 7. For fiscal year 2011, Massachusetts obtained

a composite score of 76.2, Child Welfare Outcomes 2008-2011, at

178, which caused it to drop two places to forty-ninth place,

Child Welfare Outcomes Tables 2008-2011, at 8. On a micro

level, Dr. Azzi-Lessing’s case file review squared with the

national results. She found that DCF had failed to achieve

permanent placements for all five Named Plaintiffs. See Trial

Tr. vol. 7, 73:3-77:15. What’s more, DCF’s efforts in this

regard were plagued by inconsistency and “inertia,” Trial Tr.

vol. 7, 75:21, causing the Named Plaintiffs to “languish” in

foster care for years, id. at 73:8, without clear prospects for

permanency.

E. Case Worker Visitation

Federal law requires that caseworkers visit the children in

foster care to whom they are assigned on a monthly basis. 42

U.S.C. § 624(f)(1)(A). Research shows that a correlation exists

between the frequency of caseworker visits and favorable foster

care outcomes. Trial Tr. vol. 17, 107:20-21, May 3, 2013, ECF

No. 342.

children discharged to a finalized adoption less than twelve months after becoming legally free for adoption. Child Welfare Outcomes 2008-2011, at 178 & n.16.


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35

From 2008 to 2011, between 43% and 50% of children received

monthly visits from the caseworkers, Child Welfare Outcomes

2008-2011, at 173, which fell far below the 90% benchmark set

for this metric during that time period, Trial Ex. 153, Monthly

Caseworker Visits Data Fiscal Year (FY) 2007, at 3. CRC’s

review indicated that only 12.9% of children in the two-year

cohort received consistent monthly contact from their caseworker

throughout the two-year review period. CRC Study tbl.41. The

study also found that 16.1% of children in the entry cohort

received no contact at all from their caseworker during their

first month in DCF’s care. CRC Study tbl.12.

F. Services

1. Preparing Foster Children for Adulthood

The provision of life skills to foster children is a core

responsibility of child welfare agencies. See, e.g., Trial Ex.

2, Case Practice Policy & Procedures Manual DCF POL 201 (“It is

critical that youth served by [DCF] be systematically and

comprehensively prepared for independent living to enable them

to function as productive members of society.”). To this end,

42 U.S.C. section 675(5)(H) provides, in relevant part:

[D]uring the 90-day period immediately prior to the date on which [a foster] child will attain 18 years of age, . . . a caseworker on the staff of the State agency, and, as appropriate, other representatives of the child [must] provide the child with assistance and support in developing a transition plan that is personalized at the direction of the child, [which]


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36

includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services, . . . information about the importance of designating another individual to make health care treatment decisions on behalf of the child if the child becomes unable to participate in such decisions and the child does not have, or does not want, a relative who would otherwise be authorized under State law to make such decisions, and provides the child with the option to execute a health care power of attorney, health care proxy, or other similar document recognized under State law, and is as detailed as the child may elect . . . .

42 U.S.C. § 675(5)(H).

Many children, however, “age out” of foster care without

ever having learned the necessary life skills to succeed outside

the walls of a foster placement. In both the first- and second-

round CFSRs, the provision of independent living services was

deemed an area needing improvement. See First-Round CFSR Final

Assessment CSF-000000327; Second-Round CFSR Final Report CSF-

000000777. Indeed, in the third quarter of state fiscal year

2012, nearly as many children left their placements at the age

of eighteen as were adopted. DCF Quarterly Reports, 2008-2012,

Tab Q3 2012, at 60 tbl.21.

2. Medical Services

Every child, upon entry into the Massachusetts foster care

system, must be “screened and evaluated under the early and

periodic screening, diagnostic and treatment [(“EPSDT”)]

standards established by Title XIX of the Social Security Act.”


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37

Mass. Gen. Laws ch. 119, § 32. EPSDT services are manifold:

among others, they include regular pediatric preventive

healthcare visits, physical and nutritional assessments, and

developmental and behavioral screening. See Trial Ex. 621,

Early & Periodic Screening, Diagnosis, & Treatment (EPSDT) Med.

Protocol & Periodicity Schedule (Med. Schedule) & EPSDT Dental

Protocol & Periodicity Schedule (Dental Schedule) DCF006427603-

10. “Medical passports” are documents prescribed by

Massachusetts regulations for use in the foster care system to

keep track of a child’s medical, dental, mental health, and

developmental history for the length of the child’s stay in

foster care. 110 Mass. Code Regs. 7.124. DCF personnel are

required to maintain medical passports for each child in its

care, id., and are expected regularly to update the passports

with relevant information regarding each child’s responses to

medication and treatment interventions, see Trial Tr. vol. 2,

60:13-61:3, 63:7-15.

Evidence in the record suggests that foster children in

Massachusetts commonly receive medical screenings in an untimely

fashion, if at all. In 2011, just 12.1% of foster children

received on-time, seven-day medical visits; 7.1% received on-

time, thirty-day medical visits; and 18.2% completed a medical

visit. Trial Ex. 610, Monthly Compliance Medical Screenings Due

2011, at 1.


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38

It is also rare to have medical information that is fully

complete. The CRC researchers found that only 52.1% and 73.7%

of children in the entry cohort and children in the two-year

cohort were provided medical passports at their scheduled time.

CRC Study Appendix C tbl.C37. Dr. Bellonci opined that he

rarely sees medical passports when meeting with patients, which

reflects something akin to the rule rather than the exception.

Trial Tr. vol. 2, 62:1-17 (“In my 20 years of working with this

population, I saw medical passport approximately three or four

times. And that’s not an unusual experience.” Id. at 62:5-7).

3. Psychotropic Medication

Children in foster care often enter the system with a

history of biological and psychological problems, due in no

small part to abuse, neglect and frequent environmental changes.

See Trial Ex. 17, AACAP Position Statement Oversight

Psychotropic Medication Use Children State Custody: Best

Principles Guideline (“AACAP Guidelines”) 1. As a result,

foster children are often prescribed psychotropic drugs to treat

persistent behavioral and emotional issues. See id.

National data suggests that foster children in

Massachusetts are prescribed psychotropic drugs at rates

exceeding those in other states. A report published by the U.S.

Government Accountability Office (the “GAO”) in 2011, reviewing

psychotropic drug prescription rates and oversight practices in


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39

five states (including Massachusetts) in 2008, found that

Massachusetts had the highest percentage of children prescribed

psychotropic medication among the states considered in the

report.25 Compare Trial Ex. 16, Foster Children: HHS Guidance

Could Help States Improve Oversight Psychotropic Prescriptions

(“GAO Report”) 102 app.XVII (noting that 39.1% of foster

children in Massachusetts are prescribed psychotropic drugs),

with id. at 101 app.XVII (noting that 22.0% of foster children

in Florida are prescribed psychotropic drugs), id. at 103

app.XVII (noting that 21.0% of foster children in Michigan are

prescribed psychotropic drugs), id. at 104 app.XVII (noting that

19.7% of foster children in Oregon are prescribed psychotropic

drugs), and id. at 105 app.XVII (noting that 32.2% of foster

children in Texas are prescribed psychotropic drugs). More

particularly, 4.9% of children between the ages of zero and

five, 44.8% of children between the ages of six and twelve, and

53.4% of children between the ages of thirteen and seventeen had

been prescribed psychotropic drugs, which exceeded the

prescription percentages for nonfoster children in each

demographic band by between two and four times. Id. at 102

app.XVII. Overall, foster children in Massachusetts were also

25 Results derived from the CRC’s more targeted population

study support those announced by the GAO. See CRC Study Appendix C tbl.C46 (finding that in the CRC study, 16.5% of the children in the entry cohort and 52.1% of the children in the two-year cohort were given psychotropic medication).


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40

3.8 times more likely to be prescribed psychotropic drugs than

children outside of foster care in the Commonwealth, see id.,

which sat squarely in the middle range among the five states,26

see id. at 101 app.XVII, 103-05 app.XVII.

There are numerous side effects associated with taking

psychotropic medications, including hallucinations, mania,

paranoia, headaches, nausea, sexual and menstrual problems,

rashes, suicidal thoughts, and pancreatic and liver damage, see

id. at 41-44 app.II, and additional indicia point to the

potential for other health risks. Research suggests that the

concomitant use of five or more psychotropic drugs by children

holds no medical benefits, that higher doses of psychotropic

drugs may prove less effective than the recommended dose, and

that no medical evidence supports the use of psychotropic drugs

in children under the age of one. See id. at 14-15. The GAO

report found that 1.33% of foster children in Massachusetts are

prescribed five or more psychotropic medications concomitantly,

id. at 107 app.XVIII, which exceeds the percentage of children

prescribed five or more medications in all four of the other

surveyed states, see id. at 106 app.XVIII, 108-10 app.XVIII.

26 The Court acknowledges, however, the danger in drawing

conclusive inferences from comparisons between children in and outside of foster care, as the children who enter foster care may, given their often severe physical and emotional issues and troubling life experiences, need medical intervention more than the average child.


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41

Moreover, 2.21% of foster children in Massachusetts were given

dosages of psychotropic medications exceeding the maximum

amounts cited on FDA-approved drug labels, id. at 107 app.XVIII,

a percentage that dwarfed those found in three of the four other

states, see id. at 106 app.XVIII, 108-10 app.XVIII.

The administration of psychotropic drugs is only one piece

of the puzzle, however: informed consent, clinical oversight,

and monitoring systems are required to have a fully functioning

medical apparatus in the foster care system. Psychotropic drugs

cannot be prescribed without the informed consent of either a

child’s parent or guardian or the state, standing in loco

parentis, see Trial Tr. vol. 2, 9:20-10:3; AACAP Guidelines 2,

and according to AACAP guidelines, the assent27 of the child

herself also ought be obtained, AACAP Guidelines 2. Clinical

oversight and documentation -- manifested in the form of medical

passports -- are particularly helpful, given the frequent

movement of foster children from one placement to the next. Cf.

Trial Tr. vol. 2, 64:24-65:12 (explaining that medical treatment

of children who experience multiple placement moves is

27 “Consent” refers to the approval of medical treatment

given by an individual who is legally empowered to give such approval; “assent,” on the other hand, refers to the approval of medical treatment given by one who is legally unable to give her consent, like a child. See Jessica Setless, Note, The Crisis of Over-Medicating Children in Foster Care: Legal Reform Recommendations for New York, 19 Cardozo J.L. & Gender 609, 623 n.140 (2013).


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42

challenging because of the multiplicity of sources a medical

provider must canvas to collect a patient’s complete medical

history). Further, federal law calls for the deployment of

comprehensive monitoring systems, 42 U.S.C. § 622(b)(15)(A)

(mandating that child welfare services plans contain, inter

alia, “a plan for the ongoing oversight and coordination of

health care services for any child in a foster care placement”),

which aim to moderate the risks associated with psychotropic

medications, see AACAP Guidelines 2 (noting that child welfare

agencies should, at a minimum, “[e]stablish guidelines for the

use of psychotropic medications for youth in state custody”28).

Proof of unauthorized or excessive psychotropic

prescriptions were rampant in the three Named Plaintiffs’ case

files reviewed by Dr. Bellonci. See Trial Tr. vol. 2, 80:5-

82:19. Similarly, medical files reviewed in the CRC study

rarely included critical information such as when a child had

first been prescribed a medication or even whether a child was

being treated with medication at all. See Trial Tr. vol. 4,

50:1-9.

28 AACAP lists the establishment of child welfare training

requirements, the creation of programs for the oversight of medication utilization, the maintenance of certain medical records information, and the design of a psychiatric consultation program as recommended or ideal action. See AACAP Guidelines 2-3.


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43

Massachusetts has a mechanism for overseeing the

administration of certain psychotropic drugs, however. Pursuant

to the Rogers process,29 courts are formally required to

authorize the prescription of antipsychotic medications -- a

subclass of drugs within the family of psychotropic medications,

Trial Tr. vol. 1, 126:20-25 -- to children in DCF custody.

Trial Tr. vol. 10, 116:1-5, Feb. 15, 2013, ECF No. 334. In

2009, a working group comprised of representatives from

Massachusetts health and welfare agencies and university

researchers, the Massachusetts Department of Mental Health, the

OCA, and DCF was convened to address issues related to the

process of obtaining consent for the prescription of

psychotropic medications to children. See Trial Tr. vol. 2,

31:16-17; Trial Tr. vol. 10, 116:6-9, 116:13-20; Trial Ex. 630,

Rogers Process Working Grp. Minutes DCF004956552. A study

commissioned by the OCA in service of the Rogers working group

identified a host of benefits of the Rogers process -- namely,

secondary review of antipsychotic prescriptions prior to

treatment, the appointment of guardians ad litem, and dedicated

29 The Rogers process takes its name from Rogers v.

Commissioner of Dep’t of Mental Health, 390 Mass. 489 (1983), in which the Massachusetts Supreme Judicial Court held that an incompetent patient may be compelled to undergo nonemergency, antipsychotic drug therapy only after a judicial determination is made to that effect. See id. at 500-02. The court’s reasoning was later adopted in regulations by DCF’s predecessor agency. Trial Ex. 1090, Examination Rogers Process Youth Custody Mass. Dep’t Children & Families 2.


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44

resource allocation. Trial Ex. 1090, Examination Rogers Process

Youth Custody Mass. Dep’t Children & Families (“Rogers Report”)

8. A number of challenges were also brought to the fore: the

Rogers process was without adequate standardization,

coordination, and quality assurances; was slow-going; failed to

take proper account of medical expertise; and featured

inadequate systemic oversight of antipsychotic medication

administration. Id. at 9-10. Perhaps most troubling, drugs

that are not listed as Rogers-process eligible -- namely, non-

antipsychotic psychotropic medications, of which there are

numerous kinds -- are prescribed without the consent of a court

or of DCF. Pls.’ Designations Fact Dep. Jan Nisenbaum 194:1-8,

May 18, 2012, ECF No. 226-1. The study offered a number of

recommendations that might resolve these issues, see Rogers

Report 13-16, but it is unclear whether any of the

recommendations that emerged out of the Rogers working group

were ever implemented, see Trial Tr. vol. 2, 35:23-36:1.

G. Caseloads

Massachusetts General Laws chapter 18B, section 7 empowers

the Commissioner of DCF with the authority to “establish

reasonable caseload rates.” Mass. Gen. Laws ch. 18B, § 7(a).

The term “caseload” refers to the number of children for which

an individual caseworker is responsible at a given time. Trial

Tr. vol. 11, 31:25-32:1. Because the mere number of children


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45

per caseworker fails fully to capture the actual burden that

caseworkers must shoulder, however, “workload” is the more

favored metric to use to analyze the reasonability of caseloads.

See id. at 32:9-12. A caseworker’s workload comprises a

“multitude of tasks related to the actual caseload of one

child,” id. at 32:22-23, including traveling to and from the

child’s home to facilitate sibling visits, scheduling

appointments, composing permanency requirements, and performing

data entry, see id. at 32:12-21. For a workload to be deemed

manageable, national standards dictate that caseworkers “simply

have to have enough time to meet their practice requirements

based on how their state is organized, or how their agency is

organized,” id. at 35:12-18, taking into consideration

caseworkers’ qualifications and subject-matter competencies, id.

at 35:18-20. Generally speaking, a workload study must be

undertaken to gauge the appropriateness of caseworker caseloads.

Id. at 36:20-22. Nevertheless, national standards suggest that,

even in the absence of a workload study, caseloads of between

twelve and eighteen children represent the maximum that a

caseworker can carry while still satisfying her job

requirements. See id. at 36:22-25 (noting that CWLA recommends

caseload ratios of between twelve and fifteen children per

caseworker); id. at 37:16-18 (noting that COA recommends


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46

caseload ratios of between twelve and eighteen children per

caseworker).

DCF employs individuals known in internal agency parlance

as “ongoing” caseworkers who provide continuous services to

children in the foster care system. See id. at 38:8-17. Unlike

their equivalents in most other states’ child welfare agencies,

DCF’s ongoing caseworkers carry “mixed” caseloads, meaning that

they are responsible for providing services to children placed

both in their family home or in a foster home. See id. at

40:23-41:3; Trial Ex. 642, Dep’t Children & Families Proposal

Reducing Ongoing Caseloads (“15 Families Initiative

Presentation”) DCF010275221. DCF has not conducted or

commissioned its own workload study, nor has it adapted those

performed by other child welfare agencies. See Trial Tr. vol.

11, 45:19-24; Trial Tr. vol. 16, 92:11-15. Instead, DCF’s

current caseload standards -- which derive from a collective

bargaining agreement originally struck in the mid-1980s between

the Commonwealth and the union representing the interests of DCF

caseworkers, see Trial Ex. 641, Dep’t Children & Families

Rationale for Reducing Ongoing Caseloads DCF010278533 --

prescribe that ongoing caseworkers be assigned eighteen cases


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47

per month.30 Trial Ex. 21, Collective Bargaining Agreement 121.

In 2005, the two contracting parties agreed in a memorandum of

understanding to assign weights to caseloads to account more

accurately for caseworkers’ actual workload. Trial Ex. 647,

Mem. Understanding Between Dep’t Soc. Servs. & DSS Chapter SEIU

Local 509 Concerning Family Res. Workers DCF003540781

(weighting, for example, 0.6 points per active foster home, 0.9

points per foster home undergoing licensure, 0.75 points per

licensed foster home on probation, and 0.4 points per out-of-

state foster home).

Since at least 2008, scores of DCF caseworkers have carried

caseloads in excess of the agreed-upon eighteen cases. See,

e.g., Trial Ex. 957, Workers Weighted Caseloads Greater 18

Reports, 2008-2012 (“Caseloads Reports”), Tab June 2008, at 57

(reporting that as of June 30, 2008, 1034 social workers across

six regional offices and a special investigations unit had

weighted workloads of over eighteen cases); id. Tab June 2009,

at 48 (reporting that as of June 30, 2009, 836 social workers

across six regional offices and a special investigations unit

had weighted workloads of over eighteen cases); id. Tab June

2010, at 24 (reporting that, as of June 30, 2010, 777 social

30 This 18:1 caseload ratio applies regardless of whether a

child is in an in-home or out-of-home placement. See Tr. vol. 11, 43:14-18.


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workers across six regional offices had weighted workloads of

over eighteen cases); id. Tab June 2011, at 15 (reporting that,

as of June 30, 2011, 492 social workers across four regional

offices had weighted workloads of over eighteen cases).31

Indeed, as of August 2012 (the last month from which the parties

could gather facts in this case), 390 caseworkers had weighted

workloads of greater than eighteen cases. Id. Tab August 2012,

at 11.

Observing that the 18:1 caseload ratio established in the

1980s collective bargaining agreement was “[r]apidly [b]ecoming

[o]bsolete,” 15 Families Initiative Presentation DCF010275219,

DCF launched a campaign known as the “15 Families Initiative,”

with the aim of reducing caseload ratios to 15:1, see Pls.’

Designations Fact Dep. Angelo McClain DCF’s Chief Staff

(“McClain Dep.”) 132:1-23, May 25, 2012, ECF No. 226-1. DCF

acknowledged that such a reduction would bring the Commonwealth

in line with national trends and standards. 15 Families

Initiative Presentation DCF010275220-21. In order to achieve

this goal, however, DCF estimated that it would need nearly two

hundred additional ongoing caseworkers at an approximate annual

cost of about $10,100,000. Id. at DCF010275224.

31 The statistics cited here, which come from DCF’s own

caseload reports, include data for assessment unit, adolescent unit, and intake/investigations unit caseworkers, as well as ongoing caseworkers. See Caseloads Reports.


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H. Qualifications and Training

Optimally, child welfare agencies should implement social

worker training development programs that feature, among other

elements, new-hire curricula, on-the-job and supervised

training, performance evaluations, continuing in-service

training, channels for feedback, and plans for routine reviews

and updates of training practices. See Trial Tr. vol. 11, 93:6-

21. See generally Trial Ex. 1092, Building Effective Training

Sys. Child Welfare Agencies.

DCF regularly hires ongoing caseworkers through a

competitive, Department-sponsored internship program. Pls.’

Designations Rule 30(b)(6) Dep. Olga I. Roche Re: Staffing,

Caseloads, & Training 146:1-147:1, Jan. 20, 2012, ECF No. 226-1.

Candidates are often recent college graduates holding a

bachelor’s degree or an associate’s degree paired with relevant

work experience. Id. In either case, caseworkers typically

arrive at DCF full-time with a fair degree of prior experience.

See id.

New recruits must participate in a competency training

program, held monthly, where incoming caseworkers are trained in

areas ranging from child development and diversity to

deescalation and safety techniques. Trial Ex. 374, Annual

Progress & Servs. Report: Fed. FY2012 (“DCF FY2012 Progress

Report”) DCF007413805. Funding cuts, however, have led to a


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reduction in the number of training programs, see id. at

DCF007413695 (recounting a cut of $200,000 from the budget for

the Child Welfare Training Institute since fiscal year 2011),

and due to heavy workloads, existing training opportunities

frequently go underutilized, see First-Round CFSR Final

Assessment CSF-000000356.

I. Accountability Systems

To maintain eligibility for funding under Title IV-B of the

Social Security Act, states must prepare and submit a five-year

Child and Family Services Plan (“CFSP”). State & Tribal Child &

Family Services Plan, Children’s Bureau, http://www.acf.hhs.gov/

programs/cb/programs/state-tribal-cfsp (last visited November

20, 2013). The CFSP is a document that describes foster care

services offered by the state. 45 C.F.R. § 1357.10(c). Among a

host of other requirements, the CFSP must include “a description

of the quality assurance system [the state] will use to

regularly assess the quality of services under the CFSP and

assure that there will be measures to address identified

problems.” 45 C.F.R. § 1357.15(u). There is at present a

dearth of staff members whose roles are dedicated to managing

continuous quality improvement. See Pls.’ Designations Fact

Dep. Ruben Ferreira 13:16-15:14, Feb 2, 2012, ECF No. 226-1.

DCF’s internal review system is driven in part by a

periodic publication known as the Continuous Quality Improvement


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management report, commonly referred to as a scorecard. See

Trial Ex. 964, CFSR Measures Reports 2008-2012 (“CFSR

Scorecards”); Trial Tr. vol. 14, 59:24-25, Apr. 30, 2013, ECF

No. 339. Each quarter, the CFSR scorecard documents the

agency’s twelve-month performance on seventeen measures tracked

nationally by ACF, such as “Absence of Maltreatment Recurrence,”

“Median Time to Reunification,” and “Percent [of Children

Exiting to Adoption] Who Exit In Less Than 24 Months.” See

Trial Tr. vol. 14, 59:24-25, 60:2-8, 60:22-23. For each

measure, the scorecard compares the state’s overall performance

and the performance of individual regions and cities to a target

benchmark based on nationwide performance. See CFSR Scorecards.

The results are distributed to DCF management staff throughout

the state. See Trial Tr. vol. 14, 60:8-11.

To bolster internal agency morale and to help managers

quickly identify areas in the most need of improvement, the

presentation of information on the scorecards has changed over

the years. Id. at 74:7-19; 76:23-25, 76:1-12. The first

scorecards issued in 2008 labeled data with green and red arrows

to identify whether DCF performed at a level above or below the

national standard. See, e.g., CFSR Scorecards, Tab December 31,

2008. In 2011, the scorecard design began to use letter grades

and a new grading method, based on how close DCF’s performance

came to meeting the target benchmark and the national median.


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See CFSR Scorecards, Tab June 30, 2011. For example, the

scorecard issued on December 31, 2011 shows that in the

preceding twelve months, there was “Absence of Maltreatment

Recurrence” in 92.3% of DCF cases statewide. See CFSR

Scorecards, Tab December 31, 2011, at DCF011158648. The target

performance level for this measure is 94.6%,32 and the national

median is 93.3%. Id. Whereas previous scorecards would have

used a red arrow to highlight that DCF fell short of the

benchmark that year, under the new grading method the state was

assigned A+ letter grades for its performance relative to the

target benchmark and the national median.33 This means that an

A+ letter grade can correspond to performance at a level just

below the national median. See Trial Tr. vol. 14, 78:19-23.

Under this grading method, the same scorecard assigned to DCF an

A- and an A+ grade in another area where the agency

underperformed the twenty-fifth percentile of the national

standard. See CFSR Scorecards, Tab December 31, 2011, at

DCF011158648 (awarding, on the measure “C1.2: Median Time to

Reunification,” an A- for the state’s performance relative to

32 Target performance levels for all measures did not change

from 2008 through September 2012, the date of the last scorecard submitted in evidence. See CFSR Scorecards.

33 This grade is determined by calculating the ratio between

DCF’s performance and the national standard. In other words, DCF achieved 97.5% of the national standard because the state-to-national ratio of 92.3 to 94.6 is 97.5%, a percentage corresponding to an A+ grade.


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the twenty-fifth percentile and an A+ for the state’s

performance relative to the median).

J. Foster Care Maintenance Payments

The AACWA designates certain federal funds to be allocated

to states to assist with their administration of foster care

services. To remain eligible to receive federal funds under the

AACWA, states must, inter alia, issue per diem allowances --

known more commonly as “foster care maintenance payments” -- to

foster parents for the costs associated with raising children

removed from their familial homes.34 See 42 U.S.C. § 672(a)(1).

The daily rates at which these foster care maintenance payments

ought be disbursed are set by the U.S. Department of Agriculture

(“USDA”). See Mass. Gen. Laws ch. 119, § 23(h). Massachusetts

law requires DCF to make foster care maintenance payments at the

USDA-recommended levels and periodically to adjust the amount of

these payments in accordance with “the financial circumstances

of the family, the needs of the child or the rate of inflation.”

Id.

From 2004 until March 2012, DCF’s foster care maintenance

rates stagnated, lingering at $17.10 per day for children

34 These include costs associated with “food, clothing,

shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, reasonable travel to the child’s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.” 42 U.S.C. § 675(4)(A).


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between the ages of zero and five, $17.96 per day for children

between the ages of six and twelve, and $18.59 per day for

children ages thirteen and over. Trial Ex. 187, Historical FC

Rates (listing historical foster care maintenance and other

allotment rates from before fiscal year 1997 to the present).

Although the Court does not have before it the USDA rates for

the entirety of that time period, the USDA rates established in

2008 (and apparently in effect until at least 2010) were set at

$20.60, $23.14, and $24.52 per day for each of the three

respective demographic groups in the Urban Northeast region.

Trial Ex. 11, Sept. 28, 2010 Letter Angelo McClain Re: FY12

Maintenance Request (“Sept. 28 McClain Letter”) DCF000827080.

DCF’s rates over four years, therefore, consistently fell

between 17% and 24% below the 2008 USDA rates. Id.

In fiscal years 2010 and 2011, DCF issued foster care

recompense payments of $5 per day, per child for expenses

incurred over the course of two six-month periods during those

years in an effort to reimburse foster parents retroactively for

the outlays they had made while receiving below-USDA-level

foster care maintenance payments. Pls.’ Designations 30(b)(6)

Dep. Ellen Finnegan Re: Foster Care Maintenance Payment Rates

163:14-164:1, Oct. 5, 2011, ECF No. 226-1. These catch-up

payments, however, were regarded only as temporary expenditures;

the official foster care maintenance rate schedule did not see


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any upward adjustment. See Trial Tr. vol. 12, 20:21-21:1; see

also Trial Ex. 13, Feb. 23, 2010 Letter Angelo McClain Re:

Foster Care Recompense Payment DCF003570659. Moreover, in

certain instances, the payments proved fruitless by the time

they were disbursed, as the children the payments were intended

to benefit no longer resided with the foster parents receiving

the recompense. See Trial Tr. vol. 12, 20:14-18.

On March 1, 2012, thanks to a $12,000,000 set-aside in the

state budget, DCF finally brought its foster care maintenance

rates up to USDA levels. McClain Dep. 150:18-151:9. At trial,

however, McClain recounted the rather unexpected nature of the

rate increase, Trial Tr. vol. 15, 110:20-22, May 1, 2013, ECF

No. 340 (“The stars aligned and we were able, we got $12 million

in the budget last year and we were able to raise the rates.”),

and expressed a degree of uncertainty as to how the Department

would be able to obtain the funds necessary to raise rates in

the upcoming fiscal year, id. at 110:23-111:5 (“We calculated

[the foster care maintenance payment rate] for this year

starting July 1st, and we would need another $2 million to raise

the rates again. . . . [A plan to seek that money from the state

legislature] was in the governor’s budget, and we’re hoping it

will make its way through the legislative process.”). Crabtree

also testified to the fact that although DCF managed to raise

its rates, “[the raise] was not legislatively part of the


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code[,] [so] with a new commissioner . . . that could change.”

Trial Tr. vol. 12, 23:15-17; see also id. at 23:10-21.

K. Case Plans

States accepting federal funds for the administration of

child welfare systems are also required under the AACWA to

“develop[] . . . a case plan . . . for each child receiving

foster care maintenance payments.” 42 U.S.C. § 671(a)(16). A

case plan must include a broad swath of information pertaining

to a foster child, such as the appropriateness of the child’s

prospective placement, details on the services that the child is

expected to receive, the child’s health and education records,

and plans certifying the steps taken towards ensuring permanency

and educational stability. 42 U.S.C. § 675(1)(A)-(G).

In the CRC study, 14.6% of children in the entry cohort and

35.1% of children in the two-year cohort were missing case plans

in their case files.35 CRC Study tbls.28a & 55a. Of the entry

cohort case files containing case plans for children who had

been in DCF for thirty-one or more days, many of them were

incomplete: only 65.8% of the case plans contained child service

data, and 73.9% of the case plans contained family service data.

Id. tbl.29. The case plans for children in the two-year cohort

featured even greater lacunae. See id. tbl.56 (reporting that

35 The CRC researchers referred to “service plans” in their

study. That term is synonymous with “case plans,” however.


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57

only 31.8% of two-year cohort case plans contained child service

data and that a mere 10.7% of two-year cohort case plans

contained any family service data).

L. Notice and Process

DCF must conduct a review of foster care services and goals

within six months of a child’s removal from her family home and,

thereafter, every six months. See 110 Mass. Code Regs. 6.10(1).

A hearing setting out permanency goals must be held within a

year of a child’s removal from her home. Mass. Gen. Laws ch.

119, § 29B(a). Massachusetts regulations provide that DCF

“shall give written notice to a client36 if the Department

intends to deny, reduce, or terminate [foster care] services, or

increase the cost thereof.”37 110 Mass. Code Regs. 8.01(1). The

notice must include, inter alia, “a statement of what action the

Department intends to take,” “the reasons for the action,” and

“the date on which the action shall become effective,” 110 Mass.

Code Regs. 8.01(1)(a)-(c), and must be memorialized in writing

and delivered to the foster child or family no less than

36 Massachusetts regulations define a client as “[a]n

applicant for or recipient of Department services,” 110 Mass. Code. Regs. 10.02. For the purposes of Fair Hearings and other grievances, “[f]oster parents, pre-adoptive parents or adoptive parents in their status as such [are] considered clients.” Id.

37 In certain instances -- none of which apply here --

advance notice need not be given. See 110 Mass. Code Regs. 8.01(3).


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fourteen days before the date of the intended action. 110 Mass.

Code Regs. 8.01(2). The suspension of services may be appealed

through an administrative review known as a “Fair Hearing,” 110

Mass. Code Regs. 10.10, which must be held within sixty-five

business days of the appeal’s initiation, 110 Mass. Code Regs.

10.10(1). It is unclear whether notice of suspended services is

provided in every instance. See, e.g., Pls.’ Designations Fact

Dep. Virginia Peel (“Peel Dep.”) 84:24-85:22, Feb. 8, 2012, ECF

No. 226-1. Budget cuts have led to significant backlogs in fair

hearings. McClain Dep. 147:17-148:1.

In the CRC study, 11.6% of children in the entry cohort had

received a foster care review within six months of entering DCF

custody, and 57.5% of such children had attended a permanency

hearing. CRC Study tbl.20a. In the two-year cohort, 26.9% of

children had had a foster care review within six months of

entry, while 61.6% of said children had attended a permanency

hearing. CRC Study tbl.47a. Comparative statistics regarding

other states’ performance in providing notice and process to

children in foster care are not available for cross-reference,

however.

III. RULINGS OF LAW

A. Standard of Review

Federal Rule of Civil Procedure 52(c) (“Rule 52(c)”)

provides the standard that governs motions for judgment on the


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record38 proffered to a court during the course of a jury-waived

trial. See Federal Ins. Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st

Cir. 2007). A court must grant a motion for judgment on the

record “where the plaintiff fails to make out a prima facie

case, or despite a prima facie case, the court determines that

the preponderance of evidence goes against the plaintiff’s

claim.” In re Stewart, No. MB 12-017, 2012 WL 5189048, at *7

(B.A.P. 1st Cir. Oct. 18 2012) (quoting In re Giza, 458 B.R. 16,

24 (Bankr. D. Mass. 2011)) (internal quotation marks omitted);

see also Morales Feliciano v. Rullán, 378 F.3d 42, 59 (1st Cir.

2004) (“When a party has finished presenting evidence and that

evidence is deemed by the trier insufficient to sustain the

party’s position, the court need not waste time, but, rather,

may call a halt to the proceedings and enter judgment

accordingly.”). Unlike a motion for summary judgment, a court

reviewing a motion for judgment on the record is not obligated

to indulge all inferences in favor of the nonmoving party. See

Stewart, 2012 WL 5189048, at *7.

B. Institutional Reform Litigation

As a general matter, institutional reform litigation is a

creature poorly suited for the courts, as the role of the

38 A motion for judgment on the record is synonymous with

one for judgment as a matter of law made during the course of a bench trial, which receives treatment equivalent to a motion for judgment on partial findings under Rule 52(c). See Federal Ins. Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007).


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workaday trial judge in such litigation is often rather

precarious at best and downright ineffectual at worst.39 Not

insignificantly, an award of the injunctive and declaratory

relief sought by the Plaintiffs here would encroach upon terrain

that is rightfully the province of the legislature, see Horne v.

Flores, 557 U.S. 433, 448 (2009) (“[I]nstitutional reform

injunctions often raise sensitive federalism concerns. Such

litigation commonly involves areas of core state responsibility

39 The late Judge Robert Keeton, a consummate jurist and

erstwhile colleague, entertained a similar challenge to the Massachusetts foster care system more than three decades ago, which ultimately resulted in the ordering of a wide array of institutional reforms. See Lynch v. King, 550 F. Supp. 325 (D. Mass. 1982) (Keeton, J.). Yet the fact that the Plaintiffs have revived many of the same claims in this instant action proves the limited utility that judicial orders have in effecting large-scale, structural change. Indeed, in the lead-in to his opinion, Judge Keeton presciently penned:

[H]owever sufficient the plaintiffs’ proof and the court’s jurisdiction may appear, the stark reality is that judicial power to give effect to rights created by Congress is meager. No doubt a primary factor in the failure of protection of victimized children has been limited resources. And yet, ironically, the only relief the court can award is an order compelling state officials to give up some of those resources -- funds appropriated by Congress -- if federal requirements are not met. Thus, it may be that the only remedy the court can provide is a remedy that we shall later know to have been worse than none, and yet a remedy the court must grant when sought by persons legitimately entitled to demand it.

Id. at 327.


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. . . .”),40 and would commit this Court to the near-perpetual

oversight of an already-complex child-welfare regime, cf.

Abraham Chayes, The Role of the Judge in Public Law Litigation,

89 Harv. L. Rev. 1281, 1284 (1976) (noting that in institutional

reform litigation “the trial judge has increasingly become the

creator and manager of complex forms of ongoing relief, which

have widespread effects on persons not before the court and

require the judge’s continuing involvement in administration and

implementation”). What is more, the redistribution of scarce

governmental resources would no doubt produce certain negative

externalities, not the least of which include the deprivation of

other state agencies of the means needed to perform their

functions fully. Horne, 557 U.S. at 448 (“When a federal court

orders that money be appropriated for one program, the effect is

often to take funds away from other important programs.”).

The Court’s primary role, however, is to adjudicate the

claims before it, such external considerations notwithstanding.

40 See also John Choon Yoo, Who Measures the Chancellor’s

Foot? The Inherent Remedial Authority of the Federal Courts, 84 Calif. L. Rev. 1121, 1123-24 (1996) (“[T]he Constitution does not permit the federal courts to exercise their remedial powers to engage in the structural reform of local institutions and local government. If the remedies needed to correct a constitutional violation lie outside a court’s traditional remedial powers, then separation of powers principles require that the answer come from the political branches, which are far better equipped to manage the structural reform of state and local institutions.”). The Court cites this article to note this restrictive point of view, not to endorse it.


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See Watson v. City of Memphis, 373 U.S. 526, 537 (1963) (“[I]t

is obvious that vindication of conceded constitutional rights

cannot be made dependent upon any theory that it is less

expensive to deny than to afford them.”). The Court thus turns

to the deprivation of constitutional rights claimed here.

C. Substantive Due Process

To prevail on a claim of deprivation of substantive due

process under the Due Process Clause of the Fourteenth

Amendment, “a plaintiff must . . . show a deprivation of life,

liberty, or property.” Connor B., 771 F. Supp. 2d at 159-60

(citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489

U.S. 189, 196 (1989)). The Supreme Court has on numerous

occasions held that the Due Process Clause “generally confer[s]

no affirmative right to governmental aid, even where such aid

may be necessary to secure life, liberty, or property interests

of which the government itself may not deprive the individual.”

DeShaney, 489 U.S. at 196; see also Lyng v. Int’l Union, United

Auto., Aerospace & Agric. Implement Workers of Am., UAW, 485

U.S. 360, 369 (1988); Harris v. McRae, 448 U.S. 297, 317-18

(1980); Lindsey v. Normet, 405 U.S. 56, 74 (1972). “[I]n

situations where a state creates a ‘special relationship’

because of the limitation which [the state] has imposed on [an

individual’s] freedom to act on his own behalf,” however, “its

subsequent failure to protect an individual may amount to a


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substantive due process violation.” J.R. v. Gloria, 593 F.3d

73, 79 (1st Cir. 2010) (second and third alterations in

original) (quoting Rivera v. Rhode Island, 402 F.3d 27, 34 (1st

Cir. 2005)) (internal quotation marks omitted). Numerous courts

of appeals have held that a special relationship exists between

state foster care agencies and the children held in their

charge, see, e.g., Norfleet ex rel. Norfleet v. Ark. Dep’t of

Human Servs., 989 F.2d 289, 291–93 (8th Cir. 1993); Yvonne L. ex

rel. Lewis v. N.M. Dep’t of Human Servs., 959 F.2d 883, 892-94

(10th Cir. 1992); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846,

851-52 (7th Cir. 1990); Taylor ex rel. Walker v. Ledbetter, 818

F.2d 791, 795 (11th Cir. 1987), and the First Circuit has

assumed as much arguendo, J.R., 593 F.3d at 80.

The Supreme Court has confirmed, and the Defendants

themselves acknowledge, that individuals consigned to the

state’s care have a constitutionally guaranteed right to “basic

human needs [such as] food, clothing, shelter, medical care, and

reasonable safety.” DeShaney, 489 U.S. at 200; see also Defs.’

Mem. 6. Nevertheless, the Defendants challenge the premise

advanced by the Plaintiffs that foster children enjoy any of the

additional rights claimed in the complaint, Defs.’ Mem. 6 & n.9

-- namely, those to (1) “a living environment that protects

foster children’s physical, mental and emotional safety and

well-being”; (2) “services necessary to prevent foster children


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from deteriorating or being harmed physically, psychologically,

or otherwise while in government custody”; (3) “treatment and

care consistent with the purpose of the assumption of custody by

DCF”; (4) “be maintained in custody [no] longer than is

necessary”; (5) “receive care, treatment and services determined

and provided through the exercise of accepted professional

judgment”; and (6) “be placed in the least restrictive placement

according to a foster child’s needs,” Compl. ¶ 303(b)-(g).

This Court adheres to the reasoning first advanced in this

case by Judge Ponsor at the motion-to-dismiss stage, that the

Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307

(1982), contemplates the first three putative rights as

protected by the Constitution and that, by logical extension

(particularly when viewed in light of the institutional failings

discussed in Part II of this opinion), the last three items

manifest the right to “reasonable care and safety,” and thus are

protections to which the Plaintiffs are equally entitled. See

Connor B., 771 F. Supp. 2d at 161; cf. Youngberg, 457 U.S. at

324 (noting that, in addition to providing basic necessities,

“the State is under a duty to provide [the involuntarily

committed] with . . . conditions of reasonable care and safety,

reasonably nonrestrictive confinement conditions, and such

training as may be required by these interests”).


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65

Merely establishing that foster children may demand from

the state the expansive rights that inhere in personhood,

however, is insufficient to demonstrate a violation of due

process. The conduct of the state with respect to individuals

in its care must additionally shock the conscience of the Court.

See Rivera, 402 F.3d at 35; see also Martínez v. Cui, 608 F.3d

54, 64 (1st Cir. 2010) (“[T]he shocks-the-conscience test . . .

governs all substantive due process claims based on executive,

as opposed to legislative, action.”) (citations omitted). There

appears to be little consensus on the proper standard one ought

apply in the deployment of the shocks-the-conscience test.

Indeed, at least three different interpretations of the test

have emerged out of the fray. The first standard, announced by

the Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976),

requires a showing of “deliberate indifference” on the part of

state officials to the needs of those for whom they are

responsible. Id. at 104-05. Six years later, in Youngberg v.

Romeo, 457 U.S. at 307, the Supreme Court held that decisions

made by a professional regarding those who have been

involuntarily committed to state custody are to be regarded

“presumptively valid” and that “liability may be imposed only

when the decision by the professional is such a substantial

departure from accepted professional judgment, practice, or

standards as to demonstrate that the person responsible actually


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did not base the decision on such a judgment.” Id. at 323.

Most recently, in County of Sacramento v. Lewis, 523 U.S. 833

(1998), the Supreme Court ruled that “in a due process challenge

to executive action, the threshold question is whether the

behavior of the governmental officer is so egregious, so

outrageous, that it may fairly be said to shock the contemporary

conscience.” Id. at 847 n.8.

On the motions to dismiss, Judge Ponsor reviewed the merits

of all three of the aforementioned tests but ultimately declined

to adopt any of them, at least not in their independent forms.41

See Connor B., 771 F. Supp. 2d at 162-63. Instead, he devised a

new, two-pronged approach that he deemed more suitable in the

foster care context: “[T]o establish a substantive due process

claim, Plaintiffs must show that Defendants’ conduct represented

a substantial departure from accepted professional judgment,

which deprived them of conditions of reasonable care and safety,

and that such conduct shocks the conscience.” Id. at 163.

Because no First Circuit authority explicitly prescribes the

41 Judge Ponsor noted that “Youngberg and Lewis are not

mutually exclusive,” Connor B., 771 F. Supp. 2d at 162, and regarded Estelle as inapposite because that case pertained only to incarcerated prisoners, whose more limited rights are justified given that the “conditions of [their] confinement are designed to punish,” id. (quoting Youngberg, 457 U.S. at 321-22) (internal quotation marks omitted).


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engagement of any particular standard,42 and because inquiries

into substantive due process are inherently context-dependent,

cf. Lewis, 523 U.S. at 850 (“Rules of due process are not,

however, subject to mechanical application in unfamiliar

territory. . . . [O]ur concern with preserving the

constitutional proportions of substantive due process demands an

exact analysis of circumstances before any abuse of power is

condemned as conscience shocking.”), this Court treats Judge

Ponsor’s construction of the shocks-the-conscience test as law

of the case and turns now to applying it.

After reviewing the extensive record set before this Court,

it is apparent that the Defendants, in their administration of

state-run foster care services, did not substantially depart

from widely accepted professional judgment. True, the laundry

list of problems plaguing DCF is well documented: whether the

relevant metric is performance in minimizing maltreatment in

care, facilitating appropriate placements and ensuring placement

stability, achieving permanency in placement outcomes, providing

educational and medical services, administering caseload

management and training, or guaranteeing accountability, DCF has

42 Technically, the First Circuit did apply the deliberate

indifference standard in the foster care context in J.R. v. Gloria, 593 F.3d at 80-81. Judge Ponsor, however, convincingly articulated various reasons why that case is sufficiently distinguishable from the one at bar. See Connor B., 771 F. Supp. 2d at 162 n.5.


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68

failed not only to comport with national standards of care and

state and federal requirements but also to comply with its own

internal policies.

Yet “substantial departure,” as articulated in the case

law, requires more than mere deviance from professional norms;

contrary to intuition, courts have construed this standard to

require the most wanton abandonment of caretaking

responsibilities. See Yvonne L., 959 F.2d at 894 (“As applied

to a foster care setting we doubt there is much difference in

the [deliberate-indifference and substantial-departure]

standards. ‘Failure to exercise professional judgment’ does not

mean mere negligence as we understand Youngberg; while it does

not require actual knowledge the children will be harmed, it

implies abdication of the duty to act professionally in making

the placements.”); Connor B., 771 F. Supp. 2d at 162 n.4 (“It is

far from obvious . . . that the professional judgment standard

creates an appreciably lower hurdle for plaintiffs [than the

deliberate indifference standard].”).

With this is mind, it is not clear that the Defendants’

behavior has sunk to a level warranting injunctive relief. For

example, when it comes to the rate of maltreatment in foster

care, it is true that the Commonwealth lays claim to myriad

dubious distinctions. See, e.g., Child Maltreatment 2010, at 57

tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15 (reporting


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69

that Massachusetts is consistently in the bottom quartile of all

states in its performance on the metric of absence of

maltreatment in foster care). These data do not reveal the

entire picture, however. In 2008 -- the year in which

Massachusetts garnered its lowest percentage absence of

maltreatment, 98.93% -- the Commonwealth missed the 99.68%

national standard by just three-quarters of a percent, and in

recent years, the Commonwealth has been within half of a

percentage point of the benchmark. See Child Maltreatment 2010,

at 57 tbl.3-20; Child Maltreatment 2011, at 55 tbl.3-15. What

is more, since at least 2006, less than 50% of all reporting

states have made the cut, and most of Massachusetts’s higher-

ranked peers beat out the Commonwealth by mere fractions of a

percent. See Child Maltreatment 2010, at 57 tbl.3-20; Child

Maltreatment 2011, at 55 tbl.3-15. Such slight differences in

position, in conjunction with the fact that the majority of

states fail to meet the national standard, do not sufficiently

serve to indict the Massachusetts foster care system. Moreover,

although DCF was not able to prevent maltreatment from

occurring, it acted reasonably when such events took place by

removing the foster child from the harmful environment. See,

e.g., CRC Study tbl.18 (noting that roughly 5% of the children

in the entry cohort sample population experienced substantiated

instances of abuse or neglect and that approximately 91.6% of


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70

such children were removed); id. tbl.45 (noting that roughly

4.1% of the children in the two-year cohort sample population

experienced substantiated instances of abuse or neglect and that

80% of said children were removed).

These considerations must be taken into account in the

course of determining whether the Commonwealth’s subpar

performance violates substantive due process, but the Defendants

ought not view this opinion as encouragement to take excessive

pride in the Department’s performance relative to the national

standard or other state foster care systems. The Court is

particularly troubled by the way DCF manipulates and presents

relative performance data in its internally distributed CFSR

scorecards. See, e.g., CFSR Scorecards, Tab September 30, 2012;

see also Trial Tr. vol. 14, 77:21-80:11 (clarifying the

Department’s method of determining grades); discussion supra

Part II.I (discussing the CFSR scorecards in the context of

DCF’s accountability systems). In the most recent iteration of

the scorecards submitted in evidence, CFSR Scorecards, Tab

September 30, 2012, the grading system employed is misleading,

to say the least. The scorecards use letter grades to evaluate

DCF’s performance on various metrics, presumably because letter

grades are recognizable and easily understood signifiers of

performance. But a system that awards an A+ letter grade to a

level of performance falling just short of the national median,


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71

see, e.g., CFSR Scorecards, Tab December 31, 2011, at

DCF011158648 (awarding, on the measure “C1.2: Median Time to

Reunification,” an A+ for the state’s performance relative to

the median), does not line up with any conventional

understanding of the letter grading system or what an A+

typically signifies. While it is understandable that the

Department strives to present performance data in a way that is

not unduly discouraging and that makes it easy to identify areas

in the most need of improvement, see Trial Tr. vol. 14, 74:7-19,

76:23-77:12, the current scorecards accomplish these goals at

the expense of clarity and honesty. The potential for such a

grading system to breed complacency in the Department is not a

constitutional violation, nor does it shock the conscience, but

it very poorly serves the foster children under the

Commonwealth’s care.

In truth, financial and administrative constraints –- not

the alleged mismanagement by DCF officials -- pose the greatest

threat to children in the Massachusetts foster care system

today. In the face of budget cuts for the 2011 fiscal year, DCF

reduced the number of its regional offices, and reduced the

number of management teams for the existing 29 area offices.

See McClain Dep. 146:1-23. This has led to a scarcity of

available foster care placements, compare Gambon Oct. Dep.

94:12-95:12 (indicating that DCF’s general goal is to maintain a


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72

pool of around 4000 unrestricted homes for foster care

placements), with DCF Quarterly Reports, 2008-2012, Tab Q3 2012,

at 62 fig.28 (showing that since 1998, the pool of unrestricted

homes has consistently fallen short of 4000), staffing deficits,

see, e.g., Gambon Oct. Dep. 50:9-51:7, limited training, see,

e.g., DCF FY2012 Progress Report DCF007413695, and delay in

achieving longstanding objectives, see, e.g., 15 Families

Initiative Presentation DCF010275220-21, DCF010275224.

Notwithstanding these challenges, certain areas have been

improving. For example, DCF records show that although caseload

ratios continue to exceed 18:1, steady progress has been made

over the past five years, even after the reduction in regional

offices from six to four. Compare Caseloads Reports, Tab June

2008, at 57 (reporting that as of June 30, 2008, 1034 social

workers across six regional offices and a special investigations

unit had weighted workloads of over eighteen cases), with id.

Tab August 2012, at 11 (reporting that as of August 31, 2012,

390 social workers across four regional offices had weighted

workloads of over eighteen cases).

Upon this mixed record, this Court respectfully declines

to substitute its judgment for that of duly elected

Massachusetts lawmakers, who properly are endowed with the power

to direct the reserves of the Commonwealth’s coffers to whatever

issue of public import that they see fit. Alas, the Plaintiffs


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73

must face the sobering reality that in this particular instance,

the pen is not quite as mighty as the purse.

The “shocks the conscience” prong of the test proves

equally unavailing to the Plaintiffs; even if this Court were to

have concluded that DCF practice did indeed substantially depart

from professional judgment, there is little in the present

record that could be said to have shocked the impressionable

conscience of the Court. “The burden to show state conduct that

‘shocks the conscience’ is extremely high, requiring ‘stunning’

evidence of ‘arbitrariness and caprice’ that extends beyond

‘[m]ere violations of state law, even violations resulting from

bad faith’ to ‘something more egregious and more extreme.’”

J.R., 593 F.3d at 80 (alteration in original) (quoting DePoutot

v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005)). While the

actions (or inaction) of some resident bad actors reflects

poorly on DCF, clear institutional failings at the Department

have not yet been proven. Cf., e.g., id. at 80-81 (holding that

two social workers’ failure to perform background checks on men

living in a foster home who allegedly sexually abused the

plaintiffs, while perhaps a violation of state law, “d[id] not

amount to inherently egregious conduct,” id. at 81); K.H., 914

F.2d at 853 (concluding that “a general practice of shuttling

children among foster parents” was not enough to assign


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74

liability for a violation of substantive due process, id.

(emphasis omitted)).

To be sure, DCF’s management of foster care has been less

than stellar, and some of the circumstances in which children in

DCF’s custody have been placed give the Court considerable

pause. Of particular note are the harrowing accounts of the

Named Plaintiffs and others in this case. But the Plaintiffs

have not succeeded in showing that the deprivations complained

of were felt class-wide. See, e.g., Trial Tr. vol. 2, 115:13-15

(revealing that Dr. Bellonci had reviewed only three case files

in consideration of his expert report); Trial Tr. vol. 7, 84:23-

85:1 (revealing that Dr. Azzi-Lessing had reviewed only five

case files before drafting her expert report). DCF may have

failed the Named Plaintiffs, but without more, their accounts do

not support a ruling that DCF’s system-wide practices shock the

conscience.

D. Familial Association

The Supreme Court has held that the First Amendment’s right

to association, the Ninth Amendment’s reservation of

unenumerated rights to the people, and the Fourteenth

Amendment’s rights to due process and equal protection imply a

concomitant right to familial association. See, e.g., Roberts

v. U.S. Jaycees, 468 U.S. 609, 618-20 (1984) (First Amendment);

Stanley v. Illinois, 405 U.S. 645, 651 (1972) (Ninth and


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75

Fourteenth Amendments). Nevertheless, “[w]hile the Supreme

Court has recognized an abstract fundamental liberty interest in

‘family integrity,’ the Court has never found that interest to

be absolute or unqualified.” Watterson v. Page, 987 F.2d 1, 8

(1st Cir. 1993) (citing Frazier v. Bailey, 957 F.2d 920, 929-30

(1st Cir. 1992)). A precise elaboration of the contours of this

right in the foster case context has eluded many judges and led

to a confused jurisprudence among the federal district circuits.

Connor B., 771 F. Supp. 2d at 164 (collecting cases). That

said, the leading inquiry centers on whether the children are

provided “any meaningful contact with family members.” Id.

(citing Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 296

(N.D. Ga. 2003)).

The Defendants maintain that the Plaintiffs have failed to

prove that “the actions of DCF’s leadership are directly aimed at

their [familial] relationships, with knowledge that the conduct

will adversely affect those relationships.” Defs.’ Mem. 10. To

support this proposition, the Defendants favorably cite Cortes-

Quinones v. Jimenez-Nettleship, 842 F.2d 556, 563 (1st Cir.

1988), and D.G. v. Yarbrough, No. 08–CV–074-GKF-FHM, 2011 WL

6009628, at *16 (N.D. Okla. Dec. 1, 2011). See Defs.’ Mem. 10-

11. Neither of these two cases is particularly apposite,

however, because their underlying rationales stem from actions

that ultimately sought damages. See Cortes-Quinones, 842 F.2d at


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76

563-64; D.G., 2011 WL 6009628, at *16 (relying for its foundation

on Griffin v. Strong, 983 F.2d 1544, 1548-49 (10th Cir. 1993), in

which the plaintiffs sought damages, including punitive damages,

id. at 1545). Courts have wider latitude to impose a remedy when

asked to enter only injunctive relief. See K.H., 914 F.2d at 854

(surmising that “there might . . . be broader liability in an

injunctive suit against [state] officials”).

Still, one must view the Plaintiffs’ familial association

claim through the lens of substantive due process, as the former

is derived in whole or in part from the latter. See Gonzalez v.

City of Anaheim, 715 F.3d 766, 772 (9th Cir. 2013) (treating an

action for familial association as a substantive due process

claim requiring proof of conscience-shocking behavior); P.J. ex

rel. Jensen v. Wagner, 603 F.3d 1182, 1198 (10th Cir. 2010)

(exercising the court’s authority to resolve “claims regarding

[the] substantive due process right to familial association”).

To be sure, Massachusetts’s performance with respect to familial

visitation and placement is far from excellent. See, e.g., CRC

Study tbl.16 (observing that just 20.9% and 37.6% of children in

the entry cohort received monthly visits from siblings and

parents, respectively, for the entirety of the thirty-month

review period). Compare First-Round CFSR Final Assessment CSF-

000000331-34 (finding Massachusetts’s efforts in kinship

placements and familial connections to be in substantial


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77

conformity with federal law during the first-round CFSR), with

Second-Round CFSR Final Report CSF-000000780-91 (finding

performance on said measures to be out of step with federal

mandates). Yet in light of this Court’s earlier discussion of

substantive due process, see supra Part III.C, one must take into

account the extenuating circumstances (i.e. budgetary

constraints) that bear on DCF’s capacity to deliver high-quality

care in order to determine whether the children in foster care

were deprived of meaningful opportunities to see their family

members. Here the Plaintiffs fail to prove there is such class-

wide institutional deprivation.

E. Procedural Due Process

In evaluating claims for violations of procedural due

process, courts are instructed to engage in a two-step analysis

that requires a determination of (1) “whether there exists a

liberty or property interest which has been interfered with by

the State,” and if so, (2) “whether the procedures attendant

upon that deprivation were constitutionally sufficient.”

González-Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010)

(quoting Kentucky Dep’t of Corrections v. Thompson, 490 U.S.

454, 460 (1989)) (internal quotation marks omitted).

The Plaintiffs, in their complaint, claim entitlements

under state law to the following four putative rights:


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78

a. The rights in relation to “placement of children in private families; early and periodic screening, diagnostic and treatment standards; individualized health care plan” . . .; b. The right to a “medical passport” . . .; c. The rights to sibling visitation . . .; and d. The right to be considered for placement with relatives, other adult persons who have played significant positive roles in the child’s life, and any minor siblings or half-siblings . . . .

Compl. ¶ 309(a)-(d) (internal citations omitted); see also Pls.’

Opp’n 17. The Defendants deny that the Plaintiffs can enjoy

such rights. Defs.’ Mem. 13. For the reasons stated with

respect to the Plaintiffs’ other putative rights, see supra Part

III.C, this Court endorses the Plaintiffs’ view.

Notwithstanding the acknowledgement of constitutionally

protected interests, the Plaintiffs have failed to establish

that the Defendants acted in a constitutionally deficient

manner. It may be unclear whether notice of suspended services

is always provided, see, e.g., Peel Dep. 84:24-85:22, but one

cannot prove the negative from an empty inference. Furthermore,

once again, limited resources appear to be the properly

attributable culprit, as former Commissioner McClain noted in

his deposition that budget cuts contributed to overwhelming

backlogs in the scheduling of fair hearings. See McClain Dep.

146:7-148:14. Finally, the data drawn from the CRC study on

foster care reviews and permanency plan hearings, CRC Study


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79

tbls.20a & 47a, are not especially helpful because there is no

comparative data available to the Court to contextualize CRC’s

findings. Accordingly, the Plaintiffs have not demonstrated

that a constitutional deprivation deserving redress exists.

F. Statutory Claims under the AACWA

1. Foster Care Maintenance Payments

The Plaintiffs seek relief for DCF’s failure to distribute

foster care maintenance payments at USDA-recommended levels as

prescribed by law. See Compl. ¶ 307; see also 42 U.S.C. §

672(a)(1); Mass. Gen. Laws ch. 119, § 23(h). Since March 2012,

however, DCF’s foster care maintenance rates have been

commensurate with those set by the USDA. See McClain Dep.

150:18-151:3. The Plaintiffs contend that this fact alone does

not effectively moot their claim. For support, the Plaintiffs

point to the Department’s long history of providing insufficient

foster care maintenance payments. See Pls.’ Opp’n 15-16; see

also Sept. 28 McClain Letter DCF000827080 (reporting that, for

some number of years, DCF rates ranged between 17% and 24% below

the USDA rates).

Generally speaking, in order to remain eligible to receive

federal funds under the AACWA, a state must comply strictly with

conditions attached to the receipt of those funds. California

Alliance of Child & Family Servs. v. Allenby, 589 F.3d 1017,

1022 (9th Cir. 2009). Substantial compliance with said


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80

conditions, however, is acceptable in certain instances

prescribed by federal regulation. Id. at 1022-23 (citing, e.g.,

45 C.F.R. §§ 1355.39, 1356.71(c)(5)).

DCF’s past performance with respect to foster care

maintenance payments failed strictly (or even substantially) to

comply with the AACWA. See id. at 1021 (holding that the

payment of 80% of foster care costs “runs afoul of the [AACWA’s]

mandate”). The problem here, however, is that the Plaintiffs

seek only prospective injunctive relief. The Court acknowledges

the cash flow challenges facing foster parents and recognizes

that foster care recompense payments, while providing money

downstream, does little for the children who are in need of that

money now. The fact remains, however, that as of March 2012,

foster care maintenance rates satisfy USDA requirements. See

McClain Dep. 150:18-151:9.

Notwithstanding the prospective relief sought, the

Plaintiffs claim that the Department’s recent fix is inadequate,

given its less-than-assured commitment to sustain foster

maintenance rates at USDA levels going forward. See Pls.’ Opp’n

16; Trial Tr. vol. 15, 110:20-111:5; Trial Tr. vol. 12, 23:15-

17. Once again, however, the Plaintiffs fall victim to blaming

the wrong party for their plight. Although DCF is statutorily

obligated to set the rates for foster care maintenance payments

at levels prescribed by the USDA, see Mass. Gen. Laws ch. 119, §


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81

23(h), the Massachusetts legislature is ultimately responsible

for appropriating the funds needed to ensure that DCF is able to

reach these goals, Trial Tr. vol. 15, 107:17-108:3. The

serendipitous nature of DCF’s receipt of $12,000,000 from the

state government to raise its foster care maintenance rates in

line with those set forth by the USDA is of no moment in this

case. It is not for this Court to speculatively cast aspersions

on the present or future intentions of state bureaucrats.

This holding ought not be read to give the Defendants a

free pass to make an end run around the requirements set forth

in the AACWA, however. Should foster care maintenance rates

fall substantially below USDA guidelines in the coming months or

years, the Plaintiffs are free to resume the pursuit of what

will be deemed by this Court to be a revived and actionable

claim. See, e.g., Conservation Law Found. v. Patrick, 767 F.

Supp. 2d 260, 261 (D. Mass. 2011).

2. Case Plans

The Plaintiffs argue that the Defendants are neither fully

nor substantially in compliance with the case-planning

requirements established by the AACWA. Pls.’ Opp’n 16.

The results from the CRC study suggest that case plans are

generally not well maintained and, in some cases, are entirely

unavailable for review. See CRC Study tbls.28a & 55a (reporting

that 14.6% of children in the entry cohort and 35.1% of children


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82

in the two-year cohort were missing case plans in their case

files); id. tbl.29 (reporting, with respect to the entry cohort,

that 65.8% of the case plans contained child service data and

that 73.9% of the case plans contained family service data); id.

tbl.56 (reporting, with respect to the two-year cohort, that

31.8% of the case plans contained child service data and that

10.7% of the case plans contained family service data). Without

more, however, mere gaps in record keeping hardly constitute

grave statutory error, cf. Bailey v. Pacheco, 108 F. Supp. 2d

1214, 1223 (D.N.M. 2000) (observing, inter alia, that “[s]loppy

record keeping skills” did not cause social worker to relinquish

the trappings of presumptively valid professional judgments),

particularly when viewed in the context of the financial and

administrative hardships that have been discussed above, see

supra Part III.C. Accordingly, the Plaintiffs’ AACWA claims

founded upon DCF’s lackluster maintenance of case plans cannot

survive.


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83

IV. CONCLUSION

For the foregoing reasons, on September 30, 2013, this

Court GRANTED the Defendants’ motion for judgment on the record,

ECF No. 316.

This is a dispiriting opinion to write. In alleging

violations of substantive due process, the Plaintiffs set

themselves to climb a virtually unscalable peak. They have

failed in the ascent. Nothing is really resolved. The state

defendants today avoid the litigation bullet but the stage is

set for further costly litigation as all attempts at settlement

have failed.

In the process, the Court may have done a disservice to the

hundreds of overworked, underpaid, and underappreciated case

workers and foster home providers whose dedication has never

been questioned here. There is, of course, a certain aridity in

marshalling the statistics necessary to sustain or refute the

class-wide institutional claims made in this case.

Yet this is not a case about statistics but about children

-- our children -- and this much is clear, the flaws noted

herein are more about budgetary shortfalls than management

myopia. We are all complicit in this financial failure.

When next you bemoan your tax burden, remember that, at

that moment, somewhere in Massachusetts there is a youngster who


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84

has just been taken from her parents’ home.43 She is confused,

inexpressibly lonely, homesick, and desperately afraid. Because

of Massachusetts’ penury, her future is murkier than in most

places in America.

Do you care?

/s/ William G. Young

WILLIAM G. YOUNG DISTRICT JUDGE

43 There is no suggestion in this record that Massachusetts

overreacts in taking children into foster care.


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1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) CONNOR B., by his next friend, ) Rochelle Vigurs, ADAM S., by his ) next friend, Denise Sullivan, ) CAMILA R., by her next friend, ) Bryan Clauson, ANDRE S., by his ) next friend, Julia Pearson, SETH ) T., by his next friend, Susan ) Kramer, and RAKEEM D., by his next ) friend, Bryan Clauson, ) individually and on behalf of all ) others similarly situated, ) CIVIL ACTION ) NO. 10-30073-WGY Plaintiffs, ) ) v. ) ) DEVAL L. PATRICK, Governor of ) the Commonwealth of Massachusetts, ) JOHN POLANOWICZ, Secretary of the ) Massachusetts Executive Office of ) Health and Human Services, and ) OLGA I. ROCHE, Acting Commissioner ) of the Massachusetts Department of ) Children and Families, in their ) official capacities,1 ) ) Defendants. ) )

1 Dr. JudyAnn Bigby, the former Secretary of the

Massachusetts Executive Office of Health and Human Services, and Angelo McClain, the former Commissioner of the Massachusetts Department of Children and Families, were originally named defendants in this class action. Because both individuals have vacated their respective offices in the time since the action’s initial filing, however, the names of their successors have been substituted in the caption. See Fed. R. Civ. P. 25(d).


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2

YOUNG, D.J. September 30, 2013

ORDER

Trial in this case commenced before this Court on January

22, 2013. Elec. Clerk’s Notes, Jan. 22, 2013, ECF No. 291. On

April 30, 2013, following the close of the Plaintiffs’ case-in-

chief, the Defendants filed a motion for judgment on the record.

Defs.’ Mot. J. R., ECF No. 316. The motion was heard on May 21,

2013, but the Court declined to rule on it at the hearing,

deciding instead to take the matter under advisement and adjourn

the case without day. Mot. Hr’g Tr. 37:17-18, May 21, 2013, ECF

No. 364.

Having had the opportunity to review the trial transcripts,

exhibits, and other evidence in the record in exquisite detail,

this Court GRANTS the Defendants’ motion for judgment on the

record, ECF No. 316, and enters final judgment in the

Defendants’ favor. Beholden to the reporting requirements

imposed by the Civil Justice Reform Act of 1990, 28 U.S.C. §§

471-482, the Court’s order presently stands absent any

accompanying rationale. The parties ought rest assured,

however, that a memorandum setting forth the relevant findings

of fact and conclusions of law, as required by Federal Rule of

Civil Procedure 52(c), is to follow in due course. The time for

filing an appeal, if any, is extended and shall commence to run

upon the filing of the memorandum.


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3

SO ORDERED. /s/ William G. Young

WILLIAM G. YOUNG DISTRICT JUDGE


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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS

Connor B. Et al

Plaintiff(s)

v. CIVIL ACTION NO.10cv30073-WGY

Deval L. Patrick, et al

Defendant(s)

JUDGMENT IN A CIVIL CASE

YOUNG DJ

_____ Jury Verdict. This action came before the court for a trial by jury. Theissues have been tried and the jury has rendered its verdict.

__X___ Decision by the Court. This action came to trial or hearing before theCourt. The issues have been tried or heard and a decision has beenrendered.

IT IS ORDERED AND ADJUDGED: The motion for Directed Verdict ECF No.(316) is GRANTED judgment for the Defendants

ROBERT M. FARRELL CLERK OF COURT

Dated: September 30, 2013 By /s/Matthew A. Paine Deputy Clerk


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Connor B. ex rel. Vigurs v. Patrick, 771 F.Supp.2d 142 (2011)

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

771 F.Supp.2d 142 United States District Court,

D. Massachusetts.

CONNOR B., by his next friend, Rochelle VIGURS, et al., Plaintiffs

v. Deval L. PATRICK, et al., Defendants.

C.A. No. 10–cv–30073–MAP. | Jan. 4, 2011.

Synopsis

Background: Foster children transferred into custody of

Massachusetts Department of Children and Families

(DCF), based on adjudication in care and protection

proceedings as result of parental abuse or neglect, filed

proposed class action against Governor, Secretary of

Massachusetts Executive Office of Health and Human

Services (EOHHS), and DCF Commissioner, challenging

aspects of state foster care system and seeking injunctive

relief under Constitution and Adoption Assistance and

Child Welfare Act (AACWA). State officials moved to

dismiss.

Holdings: The District Court, Ponsor, J., held that:

[1]

foster children had standing;

[2]

Younger abstention did not apply;

[3]

claims against Governor were not barred by sovereign

immunity;

[4]

in matter of first impression, special relationship

between foster children and state triggers Due Process

Clause protections;

[5]

substantive due process claim was sufficiently alleged;

[6]

right to familial integrity claim was sufficiently

alleged;

[7]

children had property rights protected under Due

Process Clause; and

[8]

AACWA creates privately enforceable rights to case

plans and foster care maintenance payments.

Denied.

Attorneys and Law Firms

*149 Daniel J. Gleason, Jonathan D. Persky, Mary K.

Ryan, Nutter, McClennen & Fish, LLP, Rachel Brodin

Nili, Goulston & Storrs, PC, Boston, MA, Kara Morrow,

Laurence D. Borten, Marcia Robinson Lowry, Sara

Michelle Bartosz, Susan Lambiase, Children’s Rights,

New York, NY, for Plaintiffs.

Robert L. Quinan, Jr., Amy Spector, Massachusetts

Attorney General’s Office, Boston, MA, for Defendants.

Opinion

MEMORANDUM AND ORDER REGARDING

DEFENDANT PATRICK’S MOTION TO DISMISS

AND DEFENDANTS’ MOTION TO DISMISS (Dkt.

Nos. 17 & 18)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiffs bring this proposed class action on behalf of all

children who have been (or will be) placed in the custody

of the Massachusetts Department of Children and

Families (“DCF”) as a result of a state *150 juvenile court

order adjudicating them in need of “care and protection”

due to abuse or neglect by their parents. Plaintiffs

challenge certain facets of the foster care system in

Massachusetts and seek injunctive relief under provisions

of the United States Constitution and under the federal

Adoption Assistance and Child Welfare Act of 1980, 42

U.S.C. §§ 670 et seq. (“AACWA”).

Presently before this court are a motion to dismiss filed by

Defendant Patrick (Dkt. No. 17) and a joint motion to

dismiss on behalf of all Defendants (Dkt. No. 18). For the

reasons discussed below, Defendants’ motions will be

denied.

II. FACTS

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The six named Plaintiffs—Connor B., Adam S., Camila

R., Andre S., Seth T., and Rakeem D.—are children who

were transferred into DCF custody as a result of abuse or

neglect by their parents. DCF may obtain custody over a

child in a number of ways, including a “care and

protection” proceeding instituted pursuant to Mass. Gen.

Laws ch. 119, §§ 24–26, which targets children who

suffer parental neglect or abuse. Plaintiffs bring this

action on behalf of all children who enter DCF’s foster

care custody as a result of such proceedings. Notably, the

action does not involve children over whom DCF has

obtained custody through other means, such as children in

need of services (“CHINS”) under Mass. Gen. Laws ch.

119, §§ 39E et seq., or children in DCF custody pursuant

to a voluntary placement agreement signed by their

parents.

Defendants, all sued in their official capacities, are

Angelo McClain, DCF Commissioner; Judyann Bigby,

Secretary of the Massachusetts Executive Office of

Health and Human Services (“EOHHS”), which oversees

DCF; and Governor Deval Patrick.

Plaintiffs allege that approximately 8,500 children in DCF

custody are exposed to severe potential harm, including:

abuse and neglect by foster care parents; movement from

one foster home to another with damaging frequency;

placement in foster homes ill-suited to address their

particular needs; languishing for years without permanent

placement and then “aging out” of DCF custody without a

permanent family or adequate preparation for adult life;

and a lack of essential services, including sibling

visitation and adequate medical, dental, mental health,

and educational services. (Dkt. No. 1, Compl. ¶¶

164–214.)

Plaintiffs allege that these harms result from systemic

deficiencies within DCF, including failure to maintain an

adequately staffed and appropriately trained child welfare

workforce; failure to properly manage foster care

placements; failure to properly develop and implement

case plans and service plans for foster children and their

families; and failure to access available federal funding.

(Dkt. No. 1, Compl. ¶¶ 215–298.)

Plaintiffs bring this class action seeking an equitable

remedy to these alleged failures in the Massachusetts

foster care system. The complaint comprises four counts.

Counts I, II, and IV allege violations of Plaintiffs’ rights

under the United States Constitution, namely, Plaintiffs’

substantive due process rights under the Fourteenth

Amendment; Plaintiffs’ liberty interests, privacy interests,

and associational rights under the First, Ninth, and

Fourteenth Amendments; and Plaintiffs’ procedural due

process rights under the Fourteenth Amendment. Count

III alleges multiple violations of the Adoption Assistance

and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq.

(“AACWA”).

Plaintiffs seek injunctive relief requiring DCF to

implement the following reforms:

1. Decrease caseworker caseloads;

*151 2. Improve caseworker training;

3. Comply with recommendations of qualified

professionals to improve essential services for the

Plaintiff class;

4. Increase monitoring by caseworkers of the

Plaintiff class;

5. Provide adequate visitation for the Plaintiff class

members with their parents and siblings;

6. Prepare timely case plans and case reviews;

7. Maintain a quality assurance system consistent

with national standards;

8. Ensure that an adequately staffed and trained

contract monitoring unit is created within the state’s

central office for purposes of overseeing and

managing the purchased services of the agency; and

9. Pay foster care reimbursement rates as set forth in

the AACWA.

(Compl., Prayer for Relief (e).) In addition, Plaintiffs ask

that the court appoint a neutral expert to oversee the

implementation of these reforms. (Id.)

III. DISCUSSION

Defendants now move to dismiss all four counts in the

complaint. Although Defendant Patrick filed a separate

motion to dismiss (Dkt. No. 17), his arguments run

parallel with those offered by the other Defendants in

their joint motion to dismiss (Dkt. No. 18). The court will

therefore address Defendant Patrick’s arguments in the

context of the joint motion to dismiss.

In addition to attacking the sufficiency of Plaintiffs’

allegations, Defendants offer three threshold arguments:

(1) Plaintiffs lack standing; (2) the court should abstain

from hearing the case pursuant to Younger v. Harris, 401

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U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); and (3) the

doctrine of sovereign immunity bars all claims as to

Defendant Patrick. The court will address these issues

before turning to the sufficiency of the complaint’s factual

allegations supporting Plaintiffs’ constitutional and

statutory claims.

A. Standing. [1]

[2]

[3]

[4]

In accordance with Article III of the United

States Constitution, a plaintiff must have standing to bring

a claim before a federal court. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119

L.Ed.2d 351 (1992). To satisfy Article III’s standing

requirement, a plaintiff must assert (1) an injury in fact

that is (a) concrete and particularized and (b) actual or

imminent; (2) a causal connection between the above

injury and a defendant’s conduct; and (3) a likelihood that

judicial relief will redress the above injury. Id. In cases

involving requests for injunctive relief, the plaintiff must

satisfy an additional requirement by alleging an

immediate threat of future injury. See City of Los Angeles

v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d

675 (1983). While the plaintiff bears the burden of

establishing standing, “at the pleading stage, general

factual allegations of injury resulting from the defendant’s

conduct may suffice, for on a motion to dismiss we

presume that general allegations embrace those specific

facts that are necessary to support the claim.” Lujan, 504

U.S. at 561, 112 S.Ct. 2130 (internal citation and

quotation marks omitted).

Defendants challenge Plaintiffs’ standing on two grounds:

(1) Plaintiffs fail to establish a causal connection between

the harms suffered and the systemic deficiencies alleged;

and (2) Plaintiffs cannot prove an immediate threat of

future injury.

1. Causal Connection.

Defendants’ principal contention is that Plaintiffs fail to

“establish a link between the systemic class relief that

they seek and any actual harm allegedly suffered by the

*152 six named plaintiffs.” (Dkt. No. 29, Defs.’ Reply

Mem. at 16.) Defendants highlight several alleged

systemic deficiencies recited in the complaint, including

unmanageable caseloads and infrequent contact between

social workers and the Plaintiff class. Because these

claims amount to “generalized complaints of institutional

mismanagement,” they argue, Plaintiffs cannot satisfy the

element of causation. (Id. at 24 (citation omitted).)

[5]

[6]

Defendants’ arguments are unpersuasive. Under the

second prong of the Lujan test, a plaintiff need not allege

that the defendant’s conduct was the proximate cause of

the plaintiff’s injuries, but merely that the injury was

“fairly traceable” to the challenged action of the

defendant. Lujan, 504 U.S. at 590, 112 S.Ct. 2130; see

also Focus on the Family v. Pinellas Suncoast Transit

Auth., 344 F.3d 1263, 1273 (11th Cir.2003)

(“Importantly, in evaluating Article III’s causation (or

‘traceability’) requirement, we are concerned with

something less than the concept of ‘proximate cause.’ ...

[E]ven harms that flow indirectly from the action in

question can be said to be ‘fairly traceable’ to that action

for standing purposes.”). The alleged misconduct at issue

here includes an understaffed and improperly trained

workforce, infrequent contact between children and

caseworkers, an inability to provide children with basic

health and educational services, failure to develop and

implement case plans, and a lack of resources due to

DCF’s inability to secure federal funding. (Dkt. No. 1,

Compl. ¶¶ 215–298.) Assuming all of Plaintiffs’

allegations to be true, as the court must at this stage, it is

at least arguably clear that the harms suffered by children

in DCF custody are fairly traceable to these systemic

failures within DCF.

[7]

Contrary to Defendants’ assertions, Plaintiffs need not

prove with specificity at this stage how every harm

suffered by every named Plaintiff relates to a particular

defect in the system. Cf. Lewis v. Casey, 518 U.S. 343,

357, 116 S.Ct. 2174, 135 L.Ed.2d 606 (“The general

allegations of the complaint in the present case may well

have sufficed to claim injury by named plaintiffs, and

hence standing to demand remediation, with respect to

various alleged inadequacies in the prison system ...”).

Defendants’ arguments may have greater force if, after

discovery, it becomes clear that a named Plaintiff cannot

link the harm he or she suffered to a particular action or

inaction by DCF. In response to a threshold motion to

dismiss, however, such a finding would be premature.

2. Immediate Threat of Future Injury. [8]

Defendants correctly observe that, due to the nature of

the relief sought, Plaintiffs cannot establish standing by

relying on past injury alone. Where a complaint requests

prospective injunctive relief, the plaintiff must allege an

immediate threat of future injury. See Lyons, 461 U.S. at

111, 103 S.Ct. 1660 (holding that plaintiff lacked standing

to bring claim seeking to enjoin the use of “chokeholds”

by police officers because plaintiff did not establish a

policy of using this technique and, thus, its future use was

merely speculative). “Past exposure to illegal conduct

does not in itself show a present case or controversy

regarding injunctive relief ... if unaccompanied by any

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continuing, present adverse effects.” O’Shea v. Littleton,

414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674

(1974) (holding that plaintiffs lacked standing to bring

claim against county magistrate for illegal bond setting,

sentencing, and jury fee practices because none of the

named plaintiffs were serving illegal sentences or

awaiting trial).

Citing Lyons and O’Shea, Defendants argue that Plaintiffs

lack standing because *153 they have not established an

imminent threat of future injury. Assuming arguendo that

Plaintiffs suffered past harms while in DCF custody,

Defendants suggest that these harms are unlikely to

reoccur.

[9]

This case is clearly distinguishable from the cases

Defendants rely upon. Here, Plaintiffs allege, unlike the

plaintiffs in Lyons and O’Shea, that Defendants maintain

policies and practices that continue to harm them. Given

that Plaintiffs remain in DCF custody and have not been

placed in permanent homes, they may fairly argue that

they suffer ongoing harm resulting from the alleged

systemic failures within DCF. It is well established that

allegations of ongoing harm satisfy Article III’s standing

requirement. See County of Riverside v. McLaughlin, 500

U.S. 44, 51, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991)

(contrasting Lyons “in which the constitutionally

objectionable practice ceased altogether” and holding that

plaintiffs had standing because they alleged “a direct and

current injury” resulting from an unlawful detention).

Thus, because they assert an ongoing injury fairly

traceable to Defendants’ allegedly unlawful conduct,

Plaintiffs have standing to bring their claims.1

B. Abstention.

The Supreme Court has identified several discrete

circumstances that require federal courts to abstain from

adjudicating a case. Here, Defendants argue that

abstention is appropriate under Younger v. Harris, 401

U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

[10]

[11]

In Younger and its progeny, the Supreme Court

prohibited federal courts from interfering with pending

state judicial or administrative proceedings. See id.;

Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43

L.Ed.2d 482 (1975); Moore v. Sims, 442 U.S. 415, 99

S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430

U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977).

Although Younger involved a state criminal proceeding,

the Supreme Court has extended the doctrine to two types

of state civil proceedings: (1) quasi-criminal or “coercive”

state civil proceedings brought by the state as

enforcement actions against an individual; and (2) state

civil proceedings brought “uniquely in furtherance of the

fundamental workings of a state’s judicial system.” Rio

Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 69 (1st

Cir.2005).

[12]

[13]

The Court later refined the Younger analysis in

Middlesex County Ethics Committee v. Garden State Bar

Association, holding that Younger applies to (1) an

ongoing state judicial proceeding involving the federal

plaintiff that (2) implicates important state interests and

(3) that provides an adequate opportunity for the federal

plaintiff to assert federal claims. 457 U.S. 423, 432, 102

S.Ct. 2515, 73 L.Ed.2d 116 (1982). The first Middlesex

prong implicitly includes a requirement that the federal

proceeding interfere with an ongoing state proceeding.

See Rossi v. Gemma, 489 F.3d 26, 35 (1st Cir.2007)

(observing that courts must first consider the “threshold

issue of interference” before moving on to the balance of

the Middlesex test); see also 31 Foster Children v. Bush,

329 F.3d 1255, 1275–76 (11th Cir.2003) (citing several

cases recognizing this implicit requirement and following

their lead).

*154 As discussed below, Younger is inapplicable here

because this case does not involve the type of state

proceeding that would require abstention and because the

Middlesex factors have not been satisfied.

1. Nature of the State Proceeding. [14]

Defendants argue that this class action will interfere

with ongoing judicial proceedings in Massachusetts

juvenile courts. However, these juvenile court cases do

not fall within either of the two narrow exceptions in

which the Supreme Court extended Younger to civil

proceedings. As noted, the Supreme Court has applied

Younger outside of the criminal context only to

“coercive” enforcement actions against an individual and

to proceedings brought “uniquely in furtherance of the

fundamental workings of a state’s judicial system,” such

as the state’s contempt process or its method of enforcing

judgments. See Rio Grande, 397 F.3d at 69 (discussing

numerous examples of each). This case involves neither.

Defendants suggest that Plaintiffs’ claims implicate

ongoing proceedings involving the termination of parental

rights (“TPR” or “care and protection” proceedings),

whereby juvenile courts place children in state custody

due to abuse or neglect by their parents. Presumably, then,

this case would fall under the category of coercive

enforcement actions warranting abstention. See Moore v.

Sims, 442 U.S. 415, 425–26, 99 S.Ct. 2371, 60 L.Ed.2d

994 (1979) (holding that abstention was appropriate under

Younger where parents filed suit in federal court

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challenging ongoing TPR proceedings in a Texas state

court).

However, Defendants’ argument fails to appreciate that

Plaintiffs’ claims relate only to alleged injuries suffered

while in DCF custody. TPR proceedings are the means by

which Plaintiffs enter DCF custody, and Plaintiffs

expressly state that they are not challenging any aspect of

those proceedings in this case. As explained below, state

law greatly circumscribes the role of juvenile courts once

DCF, an executive agency, takes custody of a child.

Where, as here, the state court proceeding is limited to a

review of executive action, the Supreme Court has made

clear that Younger abstention is inappropriate. See New

Orleans Public Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 368, 109 S.Ct. 2506, 105 L.Ed.2d

298 (1989) (holding that Younger does not apply to a

“state judicial proceeding reviewing legislative or

executive action” because “[s]uch a broad abstention

requirement would make a mockery of the rule that only

exceptional circumstances” justify abstention); see also

Rio Grande, 397 F.3d at 70 (holding that Younger did not

apply where state proceeding challenged executive action,

namely, a failure by Puerto Rico’s Secretary of Health to

reimburse plaintiffs for services provided to Medicaid

patients).

2. Applying the Middlesex Factors.

Application of the Middlesex factors further illustrates

why Younger and its progeny do not require abstention

here.

a. Interference with an Ongoing State Proceeding.

First, Defendants fail to show how the present case would

interfere with ongoing state proceedings. Defendants

argue that the requested injunctive relief, such as

determining the propriety and safety of placements, the

adequacy of services, the frequency of visitation, and the

appropriateness of DCF’s plans to achieve permanency

for each child, “necessarily must be addressed in the

ongoing proceedings by Juvenile Court judges, who are

vested with the authority and the obligation to render

determinations and issue orders on *155 each of these

issues.” (Dkt. No. 20, Defs.’ Mem. at 59–60.)

Defendants’ argument misapprehends the nature of

Plaintiffs’ claims. As support for their contention that this

case threatens to constrain state juvenile courts,

Defendants highlight several cases that are clearly

inapposite. These authorities fall into two categories: (1)

child-in-need-of-services(“CHINS”) cases; and (2)

termination-of-parental-rights (“TPR”) cases.

Under Mass. Gen. Laws ch. 119, § 39E, parents may

petition a juvenile court to label their child a “child in

need of services,” at which time the court can help rectify

problems such as the child’s obstinance at home or

truancy at school. The role of juvenile courts is expanded

considerably in a CHINS case. See In re Angela, 445

Mass. 55, 833 N.E.2d 575 (2005) (“Unlike most other

commitment proceedings, where the person is committed

to the care of an agency of a department of the State ... [in

a CHINS case] the Juvenile Court retains control over the

treatment of the child who is adjudicated a CHINS and

the dispositional order is revisited periodically.”).

The same is true for TPR cases. See Mass. Gen. Laws ch.

119, § 26 (describing the direct role of the courts in

determining a child’s fate in TPR proceedings); see also

Adoption of Gregory, 434 Mass. 117, 747 N.E.2d 120,

128–29 (2001) (affirming juvenile court’s decision to

terminate parental rights); Adoption of Daisy, 77

Mass.App.Ct. 768, 934 N.E.2d 252 (2010) (same).

Plaintiffs concede that “TPR proceedings may thus be

entitled to Younger deference,” (Dkt. No. 26, Pls.’ Mem.

at 26 n. 19), but correctly observe that Defendants have

failed to show how the relief requested in this case would

in any way interfere with either a TPR or a CHINS

proceeding.

[15]

As noted previously, Plaintiffs’ claims do not

implicate the proceedings themselves, only the aftermath

of the proceedings. In stark contrast to the discretion

afforded juvenile courts in TPR and CHINS proceedings,

Massachusetts law greatly restricts the juvenile courts’

discretion once a child is placed in DCF’s permanent

custody. In fact, the Massachusetts Supreme Judicial

Court (“SJC”) has made clear that DCF controls the fate

of these children and that the juvenile courts play a very

limited oversight role:

When [DCF] is granted permanent

custody of a child, it has virtually

free rein to place that child in a

foster home of its choosing, to

decree whether, how much, and

what sort of family visitation there

should be, and to decide whether to

have the child adopted. This

discretion is subject only to a

petition for review which cannot be

filed more than once every six

months.

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Care & Protection of Three Minors, 392 Mass. 704, 467

N.E.2d 851, 861 (1984) (emphasis added). In other words,

“ ‘the courts play a minimal role in exercising the state’s

care and protection policy. The real locus of decision

making is within [DCF]....’ ” Id. (quoting Catherine E.

Campbell, The Neglected Child, 4 Suffolk U.L.Rev. 631,

645–646 (1970)).

In Care & Protection of Isaac, 419 Mass. 602, 646

N.E.2d 1034 (1995), the SJC more clearly defined the

limited role that juvenile courts play once DCF obtains

permanent custody, holding that courts do not have

authority to overrule a residential placement decision

made by DCF unless the judge finds that the decision was

arbitrary or capricious and amounts to an abuse of

discretion. In so holding, the SJC observed that Mass.

Gen. Laws ch. 119 “contain[s] no general grant of

authority to a judge to enter an order intended to be in a

child’s best interests.” *156 Id. at 609, 646 N.E.2d 1034.

Thus, “when a child is placed in the permanent custody of

the department, decisions related to normal incidents of

custody, by the terms of §§ 21, 26, and 32 are committed

to the discretion of the department,” and the juvenile court

may only “offer guidance to the department concerning a

child’s residence.” Id.

The scope of state courts’ discretion is critical to the

Younger analysis. Multiple federal courts facing nearly

identical challenges to state foster-care systems have

reached disparate conclusions regarding the applicability

of Younger.2 The case of Carson P. v. Heineman, 240

F.R.D. 456, 529 (D.Neb.2007), illustrates how differences

among states in the power afforded juvenile courts over

foster-care children affect these outcomes:

As noted by Kenny A. [v. Perdue, 218 F.R.D. 277, 286

(N.D.Ga.2003) ], “under Georgia law, once the juvenile

court grants legal custody of a child to DFCS, the court

is powerless to order DFCS to give physical custody of

the child to any particular foster parent or otherwise

restrict the actual placement of the child.” In Kenny A.,

the juvenile court’s authority over the state social

service department was very limited, and the federal

court could arguably assist that juvenile court by

issuing orders against the state agency, orders that the

juvenile court itself was powerless to enter. Such is not

the case in Nebraska.

Id. (citations omitted). Highlighting, in contrast, the

“expansive scope of authority” afforded juvenile court

judges in Nebraska to “decide the appropriate

placement for children in [state] custody,” Carson P.

held that Younger abstention was appropriate. Id. at

527.

This class action is closer to Kenny A. and its sister cases

in which federal courts found Younger inapplicable

because the plaintiffs sought to enjoin actions taken by an

executive agency, not the courts. See, e.g., Kenny A. v.

Perdue, 218 F.R.D. 277, 286 (N.D.Ga.2003) (“[T]he

declaratory and injunctive relief plaintiffs seek is not

directed at [plaintiffs’] review hearings, or at Georgia’s

juvenile courts, juvenile court judges, or juvenile court

personnel,” but rather “at executive branch defendants to

remedy their alleged failures as plaintiffs’ custodians.”);

Dwayne B. v. Granholm, Civ. No. 06–13548, 2007 WL

1140920, at *6 (E.D. Mich. April 17, 2007) (“The relief

sought here is not directed at the juvenile courts. It is

directed at the [Michigan] executive branch,” and

therefore “[d]efendants’ claim that there are ongoing

judicial proceedings is misleading.”); Brian A. v.

Sundquist, 149 F.Supp.2d 941, 957 (M.D.Tenn.2000)

(“Plaintiffs seek injunctive relief against the [Tennessee]

Department of Children’s Services, not the *157 courts”

and, therefore, “nothing about this litigation seeks to

interfere with or enjoin” the state proceedings).

As described above, once a child is placed in DCF

custody, Massachusetts law severely restricts the role of

juvenile courts. Unlike in CHINS or TPR cases, the

courts’ authority is limited to periodic, highly deferential

review of DCF’s decisions. Any indirect impact this case

has on the juvenile courts is slight and fails to rise to the

requisite level of interference articulated by the First

Circuit. See Rio Grande, 397 F.3d at 69 (citing Gilbertson

v. Albright, 381 F.3d 965, 977–78 (9th Cir.2004))

(“Interference is ... usually expressed as a proceeding that

either enjoins the state proceeding or has the ‘practical

effect’ of doing so.”). Because Plaintiffs’ requested relief

threatens to impose limitations on DCF, not the juvenile

courts, Younger is inapplicable.

b. Important State Interests.

The second Middlesex factor, requiring that the state

proceedings implicate important state interests, is easily

satisfied here. See Petition of Dep’t of Public Welfare to

Dispense with Consent to Adoption, 376 Mass. 252, 381

N.E.2d 565, 572 (1978) (holding “state’s interest in

protecting the welfare of children” constitutes a

compelling state interest). The only remaining question,

then, is whether the state proceedings provide an adequate

opportunity for Plaintiffs to assert their federal claims.

See Middlesex, 457 U.S. at 432, 102 S.Ct. 2515.

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c. Adequate Opportunity to Assert Federal Claims.

The final requirement under Younger is that the federal

plaintiffs had an adequate opportunity to present their

federal claims in the state proceeding. See Middlesex

County Ethics Committee, 457 U.S. at 432, 102 S.Ct.

2515. Defendants emphasize that Massachusetts courts

have the authority to hear federal constitutional and

statutory claims. It does not matter, they argue, whether

the juvenile courts represent a natural or proper place for

bringing those federal claims. What matters is that the

courts could, in theory, hear those claims, and Plaintiffs

chose not to avail themselves of an opportunity to present

them. In support, Defendants quote Moore v. Sims, in

which the Supreme Court stated that “abstention is

appropriate unless state law clearly bars the interposition

of the [federal statutory] and constitutional claims.” 442

U.S. 415, 425–26, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979).

Defendants’ reliance on this language in Moore is flawed

for several reasons. First, Defendants overlook a later

clarification in Moore, which states that “the only

pertinent inquiry is whether the state proceedings afford

an adequate opportunity to raise the constitutional

claims.” Id. at 430, 99 S.Ct. 2371. (emphasis added).

Second, Moore was decided before Middlesex, and

Middlesex repeatedly observes that the state forum must

present an “adequate opportunity” to present the federal

claims.3 See Middlesex County Ethics Committee, 457

U.S. at 432, 102 S.Ct. 2515 (emphasis added). Third,

several federal courts of appeals interpreting this line of

case law have noted that adequacy is, indeed, a central

consideration. For instance, the United States Court of

Appeals for the D.C. Circuit explained that courts must

consider not only whether it was *158 theoretically

possible for the plaintiffs to raise their federal claims in

the state proceeding, but also whether the state proceeding

provided an “inadequate or inappropriate forum” for

pursuing those claims. LaShawn A. v. Kelly, 990 F.2d

1319, 1322 (D.C.Cir.1993). Holding that the D.C. family

court system was an inadequate forum for class-action

plaintiffs to present a challenge to the D.C. foster-care

system, the court explained that the state proceedings

“contemplate issues centering on the care of a child by his

or her parent” and, thus, “are not suitable arenas in which

to grapple with broad issues external to the parent-child

relationship.” Id. at 1322–23 (citations and quotation

marks omitted).

Although not addressing this issue head-on, a Ninth

Circuit opinion reflected a similar understanding of

Younger, holding that abstention was inappropriate where

the plaintiffs’ claims were “not of a sort that would be

presented during the normal course of a state proceeding.”

L.H. v. Jamieson, 643 F.2d 1351, 1354 (9th Cir.1981).

The Tenth and Eleventh Circuits, while ultimately

affirming the district courts’ decisions to abstain under

Younger, also focused their analyses on whether the state

proceeding offered an adequate forum for the plaintiffs to

present their federal claims. See J.B. v. Valdez, 186 F.3d

1280 (10th Cir.1999); 31 Foster Children v. Bush, 329

F.3d 1255 (11th Cir.2003).

Like the plaintiff class in LaShawn A., Plaintiffs here also

bring a “multifaceted request for broad-based injunctive

relief based on the Constitution and on federal ... statutory

law.” 990 F.2d at 1323. Although Defendants maintain

that Plaintiffs in theory can assert federal claims in state

juvenile courts, they fail to explain how those courts

present an adequate forum for Plaintiffs’ claims. In fact,

Massachusetts juvenile courts are tasked with handling

difficult questions of family law on an ad-hoc basis, not

with crafting broad-based injunctive relief that could

potentially revamp an executive agency. They cannot and

do not afford Plaintiffs an adequate opportunity to seek

relief for the systemic failures alleged in the complaint.

Thus, abstention is inappropriate.

C. Sovereign Immunity.

Defendant Deval Patrick, as Governor of Massachusetts,

argues that the doctrine of sovereign immunity precludes

all claims against him. Specifically, Defendant Patrick

asserts that Plaintiffs have failed to establish a sufficient

connection between any actions taken by him and the

harms alleged. The argument is unpersuasive.

[16]

[17]

[18]

The Eleventh Amendment generally bars suits

in federal court against unconsenting states. See Rosie D.

ex rel. John D. v. Swift, 310 F.3d 230, 234 (1st Cir.2002).

However, in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441,

52 L.Ed. 714 (1908), the Supreme Court recognized a

narrow exception for claims seeking prospective

injunctive relief against state actors. Ex Parte Young

allows federal courts, “notwithstanding the absence of

consent, waiver or evidence of congressional assertion of

national hegemony, [to] enjoin state officials to conform

future conduct to the requirements of federal law.” Rosie

D., 310 F.3d at 234 (holding that Eleventh Amendment

did not bar Medicaid beneficiaries from seeking

prospective injunctive relief in federal court) (citations

and quotation marks omitted). As long as the state official

“has some connection with the enforcement of the act,”

that official is an “appropriate defendant.” Shell Oil v.

Noel, 608 F.2d 208, 211 (1st Cir.1979). “It is a question

of federal jurisdictional law whether the connection is

sufficiently intimate to meet the requirements of Ex parte

Young.” Id.

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*159 [19]

Here, in addition to his general executive and

budgetary authority, Governor Patrick has direct

supervisory authority over Defendant Bigby, the

Secretary of the Massachusetts Executive Office of

Health and Human Services, who develops and

implements DCF policies and programs. See Mass. Gen.

Laws ch. 6A, § 16. Defendant Patrick also approves the

appointment of the DCF Commissioner, Defendant

McClain. Mass. Gen. Laws ch. 18B, § 6.

Defendant Patrick concedes, moreover, that in 2008 the

state legislature codified an executive order creating the

Office of the Child Advocate, “who is appointed by and

reports directly to the Governor” and is charged with

reviewing “[DCF’s] programs and procedures” and

resolving “complaints relative to the provision of services

to children by an executive agency.” (Dkt. No. 20, Defs.’

Mem. at 48 (quoting Mass. Gen. Laws ch. 18C, § 5).)

Significantly, Defendant Patrick’s issuance of the

executive order initially establishing the Office represents

direct involvement in the ongoing maintenance of the

state child welfare system.

The fact that on a daily basis Defendant Patrick plays a

somewhat detached, supervisory role is inconsequential.

See Papasan v. Allain, 478 U.S. 265, 282 n. 14, 106 S.Ct.

2932, 92 L.Ed.2d 209 (1986) (holding that Eleventh

Amendment did not bar suit against secretary of state

responsible for “general supervision” of the

administration of public school land funds by local school

officials); Futernick v. Sumpter Twp., 78 F.3d 1051, 1055

n. 5 (6th Cir.1996) (rejecting as “ridiculous” defendants’

argument that “only the officer with immediate control

over the challenged act or omission is amenable to §

1983”). Certainly, Defendant Patrick has “some

connection” with the enforcement of DCF policy, and that

connection is “sufficiently intimate” to remove him from

the Eleventh Amendment’s shield of sovereign immunity.

Shell Oil, 608 F.2d at 211. Therefore, Defendant Patrick’s

Motion to Dismiss (Dkt. No. 30) will be denied.

D. Plaintiffs’ Constitutional Claims (Counts One, Two,

and Four). [20]

[21]

[22]

[23]

A complaint is subject to dismissal under

Rule 12(b)(6) if, after accepting all well-pleaded facts as

true and drawing all reasonable inferences in favor of a

plaintiff, the court determines that it “fails to state a claim

upon which relief can be granted.” Edes v. Verizon

Commc’ns, Inc., 417 F.3d 133, 137 (1st Cir.2005);

Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a

complaint must contain “sufficient factual matter” to state

a claim to relief that is both actionable as a matter of law

and “ ‘plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S.

662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Id. “Dismissal for failure to state a claim is appropriate if

the complaint fails to set forth ‘factual allegations, either

direct or inferential, respecting each material element

necessary to sustain recovery under some actionable legal

theory.’ ” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st

Cir.2008) (quoting Centro Medico del Turabo, Inc. v.

Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.2005)).

1. Substantive Due Process (Count I). [24]

[25]

[26]

The Due Process Clause of the Fourteenth

Amendment provides that “[n]o State shall ... deprive any

person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. To establish a

substantive due process violation, a plaintiff must first

show a deprivation *160 of life, liberty, or property.

DeShaney v. Winnebago County Dep’t of Social Servs.,

489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249

(1989). The Due Process Clause generally confers no

affirmative right to governmental aid, even when such aid

may be necessary to protect life, liberty, or property

interests. Id. However, a narrow exception exists for

situations involving a “special relationship” between a

plaintiff and the state. Id. at 200, 109 S.Ct. 998. “[I]t is the

State’s affirmative act of restraining the individual’s

freedom to act on his own behalf—through incarceration,

institutionalization, or other similar restraint of personal

liberty—which is the ‘deprivation of liberty’ triggering

the protections of the Due Process Clause.” Id.

The Supreme Court has found such a relationship between

the state and incarcerated prisoners, Estelle v. Gamble,

429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and

between the state and involuntarily committed mental

patients, Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct.

2452, 73 L.Ed.2d 28 (1982). In DeShaney, however, the

Supreme Court declined to find a special relationship

between the state and children in the custody of private

actors, such as their parents. Significantly, though, the

Supreme Court noted that its holding might well differ if

the plaintiffs suffered abuse at the hands of agents of the

state, such as foster parents. DeShaney, 489 U.S. at 201 n.

9, 109 S.Ct. 998 (“Had the State by the affirmative

exercise of its power removed [the plaintiff] from free

society and placed him in a foster home operated by its

agents, we might have a situation sufficiently analogous

to incarceration or institutionalization to give rise to an

affirmative duty to protect.”).

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Although the First Circuit has not squarely addressed this

issue, see J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir.2010)

(assuming arguendo that such a special relationship exists

between foster children and the state), courts have found,

with apparent unanimity, that such a relationship exists in

the foster-care context. See, e.g., Yvonne L. v. N.M. Dep’t

of Human Servs., 959 F.2d 883, 892–94 (10th Cir.1992);

Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289,

291–292 (8th Cir.1993); K.H. v. Morgan, 914 F.2d 846,

851 (7th Cir.1990); Taylor v. Ledbetter, 818 F.2d 791,

795 (11th Cir.1987); Doe v. New York City Dep’t of

Social Servs., 649 F.2d 134, 141–42 (2nd Cir.1981); J.R.

v. Gloria, 599 F.Supp.2d 182, 194–95 (D.R.I.2009); Eric

L. ex rel. Schierberl v. Bird, 848 F.Supp. 303, 307

(D.N.H.1994).

[27]

[28]

This court agrees. The rationale of Youngberg, in

which the court found a special relationship between the

state and involuntarily committed mentally ill patients,

applies with equal force here: “If it is cruel and unusual

punishment to hold convicted criminals in unsafe

conditions, it must be unconstitutional [under the Due

Process Clause] to confine the involuntarily

committed—who may not be punished at all—in unsafe

conditions.” 457 U.S. at 315–16, 102 S.Ct. 2452.

Likewise, it must be unconstitutional for the state to take

custody of abused and neglected children, arguably more

vulnerable than the plaintiffs in both Estelle and

Youngberg, and fail to make adequate efforts to ensure

their safety. The fact that a state’s foster care system, no

matter how deficient, arguably represents an improvement

on the abused child’s prior living conditions does not

diminish this entitlement. As the Seventh Circuit aptly

explained, “[o]nce the state assumes custody of a person,

it owes him a rudimentary duty of safekeeping no matter

how perilous his circumstances when he was free.” K.H.,

914 F.2d at 849.

[29]

Two questions remain: (1) what are the contours of

this right? and (2) what standard of culpability applies?

The Supreme *161 Court offered helpful guidance as to

the first question in Youngberg. There, the Court observed

that individuals placed involuntarily into state custody are

entitled to “conditions of reasonable care and safety,

reasonably nonrestrictive confinement conditions, and

such training as may be required by these interests.”

Youngberg, 457 U.S. at 324, 102 S.Ct. 2452. In other

words, a state violates the Due Process Clause when it

“fails to provide for [the plaintiff’s] basic human

needs—e.g., food, clothing, shelter, medical care, and

reasonable safety.” DeShaney, 489 U.S. at 200, 109 S.Ct.

998 (citing Youngberg ).

The question here is whether the Supreme Court’s

articulation of this right encompasses the following list of

entitlements set forth by Plaintiffs in Count I of the

complaint: (a) the right to “protection from unnecessary

harm” while in state custody; (b) the right to a living

environment that protects foster children’s physical,

mental and emotional safety and well being; (c) the right

to services such as safe and secure foster care placements,

appropriate monitoring and supervision, placement in a

permanent family, and adequate medical, dental,

psychiatric, psychological, and educational services; (d)

the right to treatment and care “consistent with the

purpose of the assumption of custody by DCF;” (e) the

right not to be maintained in custody “longer than is

necessary to accomplish the purposes to be served by

taking the child into custody;” (f) the right to receive care,

treatment and services determined and provided through

the exercise of accepted professional judgment; and (g)

the right to be placed in the least restrictive environment

according to a foster child’s needs. (Dkt. No. 1, Compl. ¶

303.)

Defendants do not challenge that the Constitution protects

the rights discussed in subsections (a) through (d) of

Count I. (Dkt. No. 20, Defs.’ Mem. at 77.) Indeed,

Youngberg’ s guarantee of reasonable care and safety

clearly contemplates those rights. See Youngberg, 457

U.S. at 324, 102 S.Ct. 2452. Defendants do, however,

question Plaintiffs’ entitlement to the rights listed in

subsections (e), (f), and (g).

[30]

At this stage in the litigation, the court cannot say

categorically that Plaintiffs have no rights to the

protections sought in subsections (e), (f), and (g). As

noted, these protections include the right to remain in

state custody no longer than necessary under the

circumstances, the right to receive care and treatment in

accordance with accepted standards of professional

judgment, and the right to be placed in the least restrictive

environment. (Dkt. No. 1, Compl. ¶ 303.) Accepting

Plaintiffs’ allegations as true, this court finds it easily

conceivable that Defendants’ failure to provide the above

services deprived Plaintiffs of “conditions of reasonable

care and safety” and “reasonably nonrestrictive

confinement conditions” to which they are entitled. See

Youngberg, 457 U.S. at 324, 102 S.Ct. 2452; see also

Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996)

(“This Court is satisfied that the right to be free from

harm encompasses the right alleged by plaintiffs to

appropriate conditions and duration of foster care.”). But

see Eric L. ex rel. Schierberl v. Bird, 848 F.Supp. 303,

307 (D.N.H.1994) (dismissing claims relating to stability

in foster care because complaint “pleads no facts tending

to establish that DCYS’s placement of children with

successive foster parents is so devoid of justification as to

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give rise to a [Due Process] violation”).

[31]

To be clear, this decision does not imply that a blanket

entitlement exists in all cases to the above protections;

rather, it merely recognizes that Plaintiffs may, through

discovery, show that the denial of these protections

deprived them of reasonable care and safety. While “not

every deviation from ideally safe conditions constitutes

*162 a violation of the [C]onstitution,” Santana v.

Collazo, 714 F.2d 1172, 1183 (1st Cir.1983), the

Constitution does require the state to make reasonable

efforts to meet the basic needs of these children and keep

them reasonably free from harm. Youngberg, 457 U.S. at

324, 102 S.Ct. 2452.

The final question concerns the standard of culpability the

court must apply in assessing these alleged violations.

Defendants argue that Plaintiffs must plausibly allege

“conscience-shocking” conduct as described in County of

Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708,

140 L.Ed.2d 1043 (1998), while Plaintiffs urge the court

to abandon the Lewis standard and apply the “professional

judgment” standard set forth in Youngberg.

[32]

Youngberg and Lewis are not mutually exclusive. In

Youngberg, the Supreme Court held that decisions made

by professionals are “presumptively valid” and give rise

to liability “only when the decision by the professional is

such a substantial departure from accepted professional

judgment, practice, or standards as to demonstrate that the

person responsible actually did not base the decision on

such a judgment.” Youngberg, 457 U.S. at 323, 102 S.Ct.

2452. In adopting this professional judgment standard, the

Court distinguished Estelle v. Gamble, 429 U.S. 97, 97

S.Ct. 285, 50 L.Ed.2d 251 (1976), which applied an

arguably more stringent “deliberate indifference” standard

in the context of prisoners’ rights, holding that “[p]ersons

who have been involuntarily committed are entitled to

more considerate treatment and conditions of confinement

than criminals whose conditions of confinement are

designed to punish.”4 Id. at 321–22, 102 S.Ct. 2452.

[33]

[34]

Twenty years later, in County of Sacramento v.

Lewis, the Court modified the substantive due process

analysis: “in a due process challenge to executive action,

the threshold question is whether the behavior of the

governmental officer is so egregious, so outrageous, that

it may fairly be said to shock the contemporary

conscience.” 523 U.S. at 847 n. 8, 118 S.Ct. 1708. Lewis

took pains to explain that the deliberate indifference and

professional judgment standards remain good law, serving

as more precise articulations of the broader

“shocks-the-conscience” rule. See id. “Rules of due

process are not ... subject to mechanical application in

unfamiliar territory” and, thus, “[d]eliberate indifference

that shocks in one environment may not be so patently

egregious in another.” Id. at 850, 118 S.Ct. 1708. In other

words, deliberately indifferent behavior does not always

and necessarily shock the conscience, but it may shock the

conscience under certain circumstances. See J.R. v.

Gloria, 593 F.3d 73, 80 (1st Cir.2010).5 Youngberg also

“can be categorized *163 on much the same terms.”

Lewis, 523 U.S. at 852 n. 12, 118 S.Ct. 1708. Thus, to

draw out this comparison, a substantial departure from

accepted professional judgment may shock the conscience

under some circumstances but not others.

[35]

Plaintiffs, then, are incorrect in suggesting that Lewis

does not apply to this particular substantive due process

claim.6 As the First Circuit unequivocally stated, “the

shocks-the-conscience test ... governs all substantive due

process claims based on executive, as opposed to

legislative, action.” Martinez v. Cui, 608 F.3d 54 (1st

Cir.2010) (emphasis in original).

In sum, to establish a substantive due process claim,

Plaintiffs must show that Defendants’ conduct represented

a substantial departure from accepted professional

judgment, which deprived them of conditions of

reasonable care and safety, and that such conduct shocks

the conscience. Here, Plaintiffs have alleged that

Defendants abdicated their duty to use professional

judgment by placing Plaintiffs in foster homes that

presented known risks of harm, failing to monitor these

improper placements, shuttling them among foster

families without any hope of finding a permanent home,

preventing visitation with parents and siblings, and failing

to provide various forms of essential treatment. (See Dkt.

No. 1, Compl. ¶¶ 164–214.) Plaintiffs further allege that

these failures resulted in great physical, mental, and

emotional harm to the Plaintiff class. (Id.)

Although Defendants argue that such conduct cannot

possibly rise to the level of conscience shocking, this

court strongly disagrees. Moreover, all that is required

here is that Plaintiffs demonstrate a plausible entitlement

to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868 (2009). Notwithstanding

Defendants’ arguments to the contrary, these serious

allegations of misconduct, if proven, may entitle Plaintiffs

to relief for a violation of their substantive due process

rights. Accordingly, Defendants’ motion to dismiss will

be denied with respect to Count I.

2. The Right to Familial Integrity (Count II).

In Count II, Plaintiffs allege that Defendants deprived

them of liberty, privacy, and associational rights protected

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by the First, Ninth, and Fourteenth Amendments. (See

Dkt. No. 1, Compl. ¶ 305.) More specifically, Plaintiffs

allege that DCF failed to make appropriate use of kinship

placements (id. ¶¶ 249–53), that DCF failed to “sustain

family ties and support reunification” (id. ¶¶ 277–78), and

that DCF failed to provide sufficient visitation with

siblings and parents (id. ¶¶ 198, 285).

[36]

The Supreme Court has recognized a right to familial

integrity derived from the broad right to association under

both the First Amendment and the Ninth Amendment’s

reservation of rights to the *164 people. Roberts v.

United States Jaycees, 468 U.S. 609, 617–20, 104 S.Ct.

3244, 82 L.Ed.2d 462 (1984); Santosky v. Kramer, 455

U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);

see also Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct.

1208, 31 L.Ed.2d 551 (1972) (“The integrity of the family

unit has found protection in the due process clause of the

Fourteenth Amendment ... and the Ninth Amendment.”).

Federal courts disagree about whether the right to familial

integrity is implicated when a state’s foster care system

inhibits interactions between children and members of

their immediate family. See, e.g., Kenny A. v. Perdue, 218

F.R.D. 277, 296 (N.D.Ga.2003) (right implicated);

Charlie H. v. Whitman, 83 F.Supp.2d 476, 513

(D.N.J.2000) (right not implicated); Marisol A. v.

Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996) (right not

implicated); Eric L. v. Bird, 848 F.Supp. 303, 307

(D.N.H.1994) (right implicated); Aristotle P. v. Johnson,

721 F.Supp. 1002, 1006 (N.D.Ill.1989) (right implicated).

[37]

[38]

Not surprisingly, the critical factor distinguishing

these cases is how broadly the court construes the right at

issue. The courts dismissing such claims held that the

right to familial integrity is only implicated when the state

denies children any contact with family members, see,

e.g., Charlie H., 83 F.Supp.2d at 513, while other courts

have determined that the right is implicated when children

are denied any meaningful contact with family members,

see, e.g., Kenny A., 218 F.R.D. at 296. This court finds the

latter description more consistent with constitutional

requirements. The narrow articulation set forth in Charlie

H. and its sister cases would appear to preclude, for

example, a claim by a plaintiff who has been allowed to

visit one of his ten siblings once every five years. This

standard is far too stringent. Because Plaintiffs here allege

that they have been denied any meaningful contact with

parents or siblings, Defendants’ motion to dismiss will be

denied with respect to Count II. Further analysis may be

appropriate once discovery is completed.

3. Procedural Due Process (Count IV). [39]

When examining procedural due process claims,

courts must take two steps: “the first asks whether there

exists a liberty or property interest which has been

interfered with by the State; the second examines whether

the procedures attendant upon that deprivation were

constitutionally sufficient.” Gonzalez–Fuentes v. Molina,

607 F.3d 864, 886 (1st Cir.2010) (quoting Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904,

104 L.Ed.2d 506 (1989)). Defendants argue that the

Eleventh Amendment bars this claim, that the cited

statutes do not create protected interests, and that existing

procedures were in any event sufficient.

a. Stated–Created Property Interest.

[40] As an initial matter, Defendants argue that the

Eleventh Amendment bars this claim because it is

grounded in state-created rights. (Dkt. No. 20, Defs.’

Mem. at 107–08). Defendants rely on Pennhurst State

School and Hospital v. Halderman, 465 U.S. 89, 104

S.Ct. 900, 79 L.Ed.2d 67 (1984), which held that the

Eleventh Amendment prohibits federal courts from

ordering state officials to conform their conduct to state

law. Id. at 104, 104 S.Ct. 900.

[41]

[42]

[43]

[44]

Defendants correctly observe that state law

determines whether a person has a constitutionally

protected property interest. See Bd. of Regents v. Roth,

408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)

(“Property interests, of course, are not created by the

Constitution. Rather, they are created and their

dimensions are defined by existing rules or

understandings that stem from an independent source

such as state law ....”). *165 However, even though courts

must look to state law to define the interest underlying a

procedural due process claim, the ultimate issue is one of

federal law. See, e.g., Hamm v. Latessa, 72 F.3d 947, 954

(1st Cir.1995) (“[T]he question of whether a state law

creates a liberty interest protected by the Due Process

Clause is clearly one of federal constitutional law ....”);

Henry Paul Monaghan, Of “Liberty” and “Property”, 62

Cornell L.Rev. 405, 435 (1977) (“The difference between

the existence of an interest—a matter of state law—and

its significance—a matter of federal law—is firmly

established ....”). Thus, Pennhurst does not prevent

federal courts from hearing a procedural due process

claim simply because state law defines the property

interest at stake. See, e.g., Williams v. Commonwealth of

Ky., 24 F.3d 1526, 1543–44 (6th Cir.1994); Brian A. v.

Sundquist, 149 F.Supp.2d 941, 953 (M.D.Tenn.2000);

Strauss v. Drew, 739 F.Supp. 1231, 1233 (N.D.Ill.1990).

- 99 -











































b. Property Interests.

[45]

[46]

[47] Mere expectations, abstract needs, and desires

are not sufficient to create a property interest subject to

procedural due process safeguards. Roth, 408 U.S. at 577,

92 S.Ct. 2701. Rather, to have a constitutionally protected

interest, a plaintiff must have a “legitimate claim of

entitlement” to it. Id. This determination largely depends

on the amount of discretion state law provides the

decisionmaker to grant or deny the benefit. See Beitzell v.

Jeffrey, 643 F.2d 870, 874 (1st Cir.1981). Less discretion

creates a greater likelihood that the statute confers a

constitutionally protected interest. Id. (“[T]he more

circumscribed ... the government’s discretion (under

substantive state or federal law) to withhold a benefit, the

more likely that benefit constitutes ‘property’ ....”). Two

factors indicating limited discretion are “the repeated use

of explicitly mandatory language” and “specific

substantive predicates” creating guidelines for the

official’s decision. Hewitt v. Helms, 459 U.S. 460, 472,

103 S.Ct. 864, 74 L.Ed.2d 675 (1983), abrogated by

Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132

L.Ed.2d 418 (1995).7

Plaintiffs cite several Massachusetts statutes—Mass. Gen.

Laws ch. 119, §§ 23(c), 26B, 32, and 110 Code Mass.

Regs. 7.124—which, they argue, confer various protected

property interests. Specifically, Plaintiffs assert rights to

(a) “placement of children in private families; early and

periodic screening, diagnostic and treatment standards;

[and] individualized health care plan[s]” under Mass.

Gen. Laws ch. 119, § 32; (b) a “medical passport” under

110 Code Mass. Regs. 7.124; (c) “sibling visitation”

under Mass. Gen. Laws ch. 119, § 26B; and (d)

“placement with relatives, other adult persons who have

played significant positive roles in the child’s life, and

any minor siblings or half-siblings” under Mass. Gen.

Laws ch. 119, § 23(c). (Dkt. No. 1, Compl. ¶ 309.)

[48]

Defendants’ motion does not challenge (nor does it

expressly concede) Plaintiffs’ assertion that they have

rights to early and periodic screening, diagnostic *166

and treatment standards, individualized health care plans,

and medical passports, as set forth in Mass. Gen. Laws ch.

119, § 32 and 110 Mass.Code Regs. 7.124. (See Dkt. No.

20, Defs.’ Mem. at 111–12.) Defendants’ silence in the

face of the mandatory language employed in the cited

statutes speaks volumes. See Mass. Gen. Laws ch. 119, §

32 (stating that DCF “shall insure that every foster child

upon entry into the foster care system shall be screened

and evaluated under the early and periodic screening,

diagnostic and treatment standards established by Title

XIX of the Social Security Act”) (emphasis added); see

also 110 Mass.Code Regs. 7.124 (mandating that DCF

“shall implement a program of utilization of a ‘medical

passport’ for all children in substitute care”) (emphasis

added). Clearly these statutes create property interests

subject to protection under the Constitution’s due process

clause.

As to the remaining property interests asserted under

Count IV, Defendants argue that the relevant statutory

provisions do not create such entitlements because they

are conditioned on a determination by DCF that the action

is in “the best interests of the child.” Under Mass. Gen.

Laws ch. 119, § 26B, for instance, DCF “shall, whenever

reasonable and practical and based upon a determination

of the best interests of the child, ensure that children

placed in foster care shall have access to and visitation

with siblings ....” While such provisions vest significant

discretion in DCF, the court is not persuaded by

Defendants’ arguments.

[49]

Grants of discretion, even broad discretion, to a

decisionmaker are not inevitably dispositive of a due

process claim. In fact, on at least two occasions the

Supreme Court has found that state law created a

constitutionally protected interest despite vesting “very

broad discretion” in state officials. Bd. of Pardons v.

Allen, 482 U.S. 369, 382, 107 S.Ct. 2415, 96 L.Ed.2d 303

(1987); Greenholtz v. Nebraska Penal Inmates, 442 U.S.

1, 13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Given that

Allen and Greenholtz involved parole statutes, they are

not, admittedly, directly controlling. See Greenholtz, 442

U.S. at 12, 99 S.Ct. 2100 (“Whether any other state

statute provides a protectible entitlement must be decided

on a case-by-case basis.”). The Court’s reasoning,

however, is instructive.

In Allen, one regulation at issue required that parole “shall

be ordered” if certain conditions are met, including a

condition that parole is in “the best interests of society.”

482 U.S. at 376, 107 S.Ct. 2415 (quoting Mont.Code Ann.

§ 46–23–201 (1985)). Concluding that these regulations

created a constitutionally protected interest, the Court

reiterated its earlier holding in Greenholtz that such

discretion was “not incompatible with the existence of a

[protected] interest ... when [specific action] is required

after the Board determines (in its broad discretion) that

the necessary prerequisites exist.” Id. (emphasis in

original).

While this case arises in a different context, the critical

issue is markedly similar. The relevant provisions of

Massachusetts state law mandate that children in DCF

custody “shall be placed in private families,” Mass. Gen.

Laws ch. 119, § 32 (emphasis added), that DCF “shall ...

ensure that [such] children shall have access to and

visitation with siblings,” Mass. Gen. Laws ch. 119, §

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26B(b) (emphasis added), and that DCF “shall

immediately commence a search to locate any relative of

the child or other adult person who has played a

significant positive role in that child’s life,” Mass. Gen.

Laws ch. 119, § 23(c) (emphasis added). While these

provisions are conditioned on the looser requirement that

such action be in the *167 “best interests of the child,”

e.g., Mass. Gen. Laws ch. 119, § 26B(b), once this

prerequisite is met the law requires DCF to take the above

actions.

In addition, although the “best interests” standard is

somewhat vague, it is a far cry from laws that provide

“unfettered discretion” to state officials. See, e.g., Olim v.

Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75

L.Ed.2d 813 (1983) (finding no protected interest where

regulation provided “unfettered discretion” and

decisionmaker could “deny the requested relief for any

constitutionally permissible reason or for no reason at

all”). Rather, it presents children in DCF custody with an

assurance that the state will provide the above benefits as

long as those benefits reflect the child’s best interests.

Assuming that children have a significant interest in

growing up in a private home rather than an institution,

and in maintaining ties with their parents and

siblings—assumptions that are virtually self evident—a

decision not to provide these benefits requires

considerable evidence of countervailing risks of harm. In

reality, then, these statutes limit DCF’s discretion much

more than a cursory reading might suggest.

In sum, Plaintiffs’ asserted interests under Mass. Gen.

Laws ch. 119, §§ 32, 26B, and 23(c) are more than

abstract needs or desires; they are legitimate claims of

entitlement. See Roth, 408 U.S. at 577, 92 S.Ct. 2701; see

also Jones–Booker v. U.S., 16 F.Supp.2d 52, 58–60

(D.Mass.1998) (finding that plaintiff had a legitimate

entitlement to compensation under Federal Employees

Compensation Act (“FECA”) because FECA mandated

that “the United States shall pay compensation” unless the

injury or death fell within one of three exceptions). These

interests are therefore subject to protection under the due

process clause.

c. What Process is Due.

The final step in the due process analysis requires this

court to determine whether the state has provided

sufficient procedural safeguards before depriving

Plaintiffs of these protected interests. It is too early to

resolve this issue. Discovery will give the parties the

opportunity to produce evidence and to argue the

antecedent issue of whether a deprivation in fact occurred.

Only at that time will the court be able to make an

informed decision about the sufficiency of the state’s

pre-deprivation process. See, e.g., Marisol A. v. Giuliani,

929 F.Supp. 662 (S.D.N.Y.1996) (“Whether, as

defendants argue, state law affords plaintiffs a mandatory

review procedure which would satisfy due process and

whether plaintiffs have been deprived of that process are

matters better left for trial.”). Since the court is not now in

a position to make such a fact-bound decision,

Defendants’ motion to dismiss will be denied with respect

to Count IV.

E. Plaintiffs’ Statutory Claims under the AACWA

(Count III). [50]

[51]

[52]

Section 1983 provides a cause of action against

any person acting under color of state law who deprives a

person of “rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983. However,

“[n]ot all violations of federal law give rise to § 1983

actions: ‘[the] plaintiff must assert the violation of a

federal right, not merely a violation of federal law.’ ” Rio

Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 72 (1st

Cir.2005) (quoting Blessing v. Freestone, 520 U.S. 329,

340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)) (emphasis

in original). Such a right must be “unambiguously

conferred” by the statutory provision at issue. Id. at

72–73. The Supreme Court has laid out a three-part test to

determine whether a provision creates a “right” that is

enforceable under § 1983. Courts must consider *168 (1)

whether the provision contains “rights-creating

language”; (2) whether the provision had an aggregate as

opposed to an individualized focus; and (3) whether the

statute contains another enforcement mechanism through

which an aggrieved individual can obtain review.8

Gonzaga Univ. v. Doe, 536 U.S. 273, 287–90, 122 S.Ct.

2268, 153 L.Ed.2d 309 (2002) (holding that a provision of

the Family Educational Rights and Privacy Act did not

create a privately enforceable right). “This test is merely a

guide, however, as the ultimate inquiry is one of

congressional intent.” Rio Grande, 397 F.3d at 73.

The AACWA, which constitutes Parts B and E of Title IV

of the Social Security Act, is a federal spending statute

under which the federal government reimburses states for

expenses incurred in administering foster care and

adoption services. Funding is conditioned upon the state

satisfying a series of requirements imposed by the Act,

which includes submitting a state plan for the provision of

foster care and adoption assistance approved by the

Secretary of Health and Human Services.

Defendants assert that Count III, which alleges multiple

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violations of the AACWA, should be dismissed because

the AACWA does not confer private rights. More

specifically, they argue that (1) the Act is generally

unenforceable because it merely encourages states to take

certain actions to receive federal funding; and (2) the

specific provisions relied on by Plaintiffs fail the test set

forth in Gonzaga University v. Doe, 536 U.S. 273, 122

S.Ct. 2268, 153 L.Ed.2d 309 (2002). For the reasons

discussed below, this court holds that the Act does create

privately enforceable rights in the cited provisions.

1. General Enforceability of the AACWA.

Defendants first argue that the Act is generally

unenforceable because it ties federal funding to

substantial conformity with state plan requirements and

allows states to improve their operations before funding is

withheld. Thus, Defendants reason, the statute only

creates “system-wide goals” as opposed to rights. (Dkt.

No. 20, Defs.’ Mem. at 99.)

[53]

This argument is foreclosed by Lynch v. Dukakis, 719

F.2d 504 (1st Cir.1983), in which the First Circuit

considered a nearly identical class action brought by

children in the Massachusetts foster care system under the

then-newly instituted AACWA seeking relief for alleged

failures of DCF (then “DSS”) to comply with case plan

and review obligations. In Lynch, the First Circuit rejected

the defendants’ argument that “the existence of the

Secretary’s power to withhold federal funds from states

precludes individual enforcement of rights against the

states.” Id. at 510–11. The court then expressly held that

the AACWA confers an enforceable right to a case plan

documenting the steps taken to identify and secure a

permanent home. Id. Thus, the fact that the AACWA

requires states to comply with its regulations in order to

receive federal funding does not preclude a finding that

the statute also confers privately enforceable rights.9

*169 2. Applying the Gonzaga Test to Individual

Provisions of the AACWA. [54]

Plaintiffs assert two rights under the AACWA: (1) a

right to a case plan containing documentation of the steps

taken to identify and secure a permanent home pursuant

to 42 U.S.C. §§ 671(a)(16)10 and 675(1)(E); and (2) a right

to foster care maintenance payments paid to foster care

providers pursuant to 42 U.S.C. §§ 671(a)(1), 671(a)(11),

671(a)(12), 672(a)(1), and 675(4)(A).

With respect to Plaintiffs’ asserted right to a case plan,

Section 671(a)(16) reads as follows:

In order for a State to be eligible for payments under

this [statute], it shall have a plan approved by the

Secretary which ...

(16) provides for the development of a case plan (as

defined in section 675(1) of this title) for each child

receiving foster care maintenance payments under

the State plan and provides for a case review system

which meets the requirements described in section

675(5)(B) of this title with respect to each such child.

42 U.S.C. § 671(a)(16). Section 675(1)(E) then defines

“case plan.”11

With respect to Plaintiffs’ asserted right to foster care

maintenance payments, §§ 671(a)(1), 671(a)(11), and

671(a)(12) read as follows:

In order for a State to be eligible for payments under

this [statute], it shall have a plan approved by the

Secretary which ...

*170 (1) provides for foster care maintenance

payments in accordance with section 672 of this title

and for adoption assistance in accordance with

section 673 of this title;

....

(11) provides for periodic review of the standards

referred to in the preceding paragraph and amounts

paid as foster care maintenance payments and

adoption assistance to assure their continuing

appropriateness;

(12) provides for granting an opportunity for a fair

hearing before the State agency to any individual

whose claim for benefits available pursuant to this

part is denied or is not acted upon with reasonable

promptness.

42 U.S.C. §§ 671(a). Section 672 contains similar

language, stating that “each State with a plan approved

under this part shall make foster care maintenance

payments” if certain conditions are met. 42 U.S.C. §

672(a)(1). Section 675(4)(A) defines “foster care

maintenance payments.”12

Federal courts are divided as to whether the AACWA

creates privately enforceable rights to either a case plan13

or foster care maintenance payments.14 As noted, the First

Circuit in Lynch held that the AACWA confers an

enforceable right to a case plan under § 671(a)(16)

containing the elements required in § 675(1)—two

provisions at issue here. However, the second of these

two provisions, § 675(1), was amended in 1997 to add

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subsection (E), which is the particular subsection

Plaintiffs rely upon in this litigation. Thus, although the

right to a case plan was clearly upheld in Lynch, the First

Circuit did not squarely address the right Plaintiffs are

now asserting, which requires this court to conduct an

independent analysis.15

[55]

Each of the above provisions satisfies the first

Gonzaga factor. As noted, the first Gonzaga factor

requires “rights-creating language,” which consists of

*171 “mandatory, rather than precatory, terms.” 536 U.S.

at 295, 122 S.Ct. 2268 (quoting Blessing, 520 U.S. at

340–41, 117 S.Ct. 1353). Additionally, the rights should

be “phrased in terms of the persons benefitted ... with an

unmistakable focus on the benefitted class” and contain

“individually focused terminology.” Id. at 284, 122 S.Ct.

2268 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677,

691, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)) (emphasis in

original).

Such language is readily discernible in the above-cited

provisions. For instance, each provision expresses a clear

mandate by using the term “shall.” See, e.g., 42 U.S.C. §

671(a)(16) (requiring that states “shall have a plan

approved by the Secretary which ... provides for the

development of a case plan (as defined in section 675(1)

of [AACWA] ) for each child receiving foster care

maintenance payments under the State plan”) (emphasis

added); 42 U.S.C. § 672(a)(1) (requiring that “each State

with a plan approved under this part shall make foster

care maintenance payments on behalf of each child”)

(emphasis added).

Each of the cited provisions similarly discusses how the

state must distribute benefits to each child. See, e.g., id.

(requiring that states “shall have a plan approved by the

Secretary which ... provides for the development of a case

plan (as defined in section 675(1) of [AACWA] ) for each

child receiving foster care maintenance payments under

the State plan ....”) (emphasis added); 42 U.S.C. §

672(a)(1) (requiring that “each State with a plan approved

under this part shall make foster care maintenance

payments on behalf of each child” ) (emphasis added).

Plainly, these directives are both couched in mandatory

terms and are unmistakably focused on the benefitted

class, i.e., foster children.

[56]

The second Gonzaga factor also favors a finding that

the AACWA creates privately enforceable rights; the

cited provisions indisputably have an “individualized,”

rather than “aggregate,” focus. See Gonzaga, 536 U.S. at

288, 122 S.Ct. 2268. Provisions with an aggregate focus

“speak only in terms of institutional policy and practice”

and “are not concerned with whether the needs of any

particular person have been satisfied.” Id. The fact that

these provisions are “embedded within the requirements

for a state plan” does not transform them into an

institutional policy. See Rio Grande, 397 F.3d at 74 (“The

mere fact that all the Medicaid laws are embedded within

the requirements for a state plan does not, by itself, make

all of the Medicaid provisions into ones stating a mere

institutional policy or practice rather than creating an

individual right.”). Moreover, as observed above, the

AACWA provisions repeatedly refer to “each child,” thus

illustrating an individualized focus. See Cal. State Foster

Parent Ass’n v. Wagner, 624 F.3d 974, 980 (2010)

(distinguishing AACWA from statute at issue in Gonzaga

and stating that § 672 of the AACWA, which provides for

foster care maintenance payments, “focuses squarely on

the individuals protected, rather than the entities

regulated”).

These provisions also satisfy the third Gonzaga factor

because the AACWA does not contain an alternative

enforcement mechanism. In Gonzaga, the Supreme Court

noted that students and parents who suspected a violation

of the Family Educational Rights and Privacy Act could

file written complaints with a federal review board,

thereby triggering an investigation and the possibility of

relief. 536 U.S. at 288, 122 S.Ct. 2268. In contrast,

Congress provided for no individualized federal review

mechanism in the AACWA. See H.R.Rep. No. 102–631,

at 365 (“[T]here is *172 no procedure ... by which

program beneficiaries can trigger a [Department of Health

and Human Services] investigation or compliance

proceeding for a State’s failure to have a plan that meets

the State plan requirements or to administer such a plan in

accordance with such requirements.”). While Defendants

argue that the AACWA establishes a “comprehensive

review and enforcement infrastructure” by requiring

periodic review to determine which states are in

substantial conformity with the Act, (Dkt. No. 20, Defs.’

Mem. at 98), this purely institutional review process is not

the same as an individualized enforcement mechanism.

See Lynch, 719 F.2d at 510–11 (holding that “nothing in

the language or structure of Title IV–E suggests that

Congress meant section 671(b) [which provides for

periodic review by the Secretary] to be an exclusive

remedy”); 31 Foster Children v. Bush, 329 F.3d 1255,

1272 (11th Cir.2003) (holding that the Act “contains no

mechanism by which aggrieved individuals can enforce

its provisions”).

In sum, application of the Gonzaga factors makes it clear

that Congress intended to create privately enforceable

rights to individualized case plans and foster care

maintenance payments under the AACWA. Accordingly,

Defendants’ motion to dismiss will be denied with respect

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to Count III.

IV. CONCLUSION

For the foregoing reasons, Defendant Patrick’s Motion to

Dismiss (Dkt. No. 17) and Defendants’ Motion to Dismiss

(Dkt. No. 18) are hereby DENIED in their entirety. Due

to time constraints, the hearing on the Motions to Dismiss

left inadequate time for argument regarding Plaintiffs’

pending Motion for Class Certification (Dkt. No. 2). The

clerk will set a date for further argument on this motion.

It is So Ordered.

Footnotes

1

Other federal courts applying Lujan to class actions similar to this one have reached the same conclusion. See, e.g., 31 Foster

Children v. Bush, 329 F.3d 1255, 1266 (11th Cir.2003); Clark K. v. Guinn, Civ. No. 2:06–cv–1068, 2007 WL 1435428, at *5

(D.Nev. May 14, 2007); Dwayne B. v. Granholm, Civ. No. 06–13548, 2007 WL 1140920, at *3–4 (E.D. Mich. April 17, 2007);

Carson P. v. Heineman, 240 F.R.D. 456, 512–13 (D.Neb.2007).

2

Several federal courts have held that Younger requires abstention under similar circumstances. See, e.g., 31 Foster Children v.

Bush, 329 F.3d 1255 (11th Cir.2003), cert. denied, 540 U.S. 984, 124 S.Ct. 483, 157 L.Ed.2d 376 (2003); J.B. v. Valdez, 186 F.3d

1280 (10th Cir.1999); Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir.2002); E.T. v. George, 681 F.Supp.2d 1151 (E.D.Cal.2010);

Carson P. v. Heineman, 240 F.R.D. 456 (D.Neb.2007); Laurie Q. v. Contra Costa County, 304 F.Supp.2d 1185 (N.D.Cal.2004).

Other courts have held that Younger does not apply. See, e.g., LaShawn A. v. Kelly, 990 F.2d 1319, 1322–23 (D.C.Cir.1993);

L.H. v. Jamieson, 643 F.2d 1351 (9th Cir.1981); Clark K. v. Guinn, No. 2:06–cv–1068, 2007 WL 1435428 (D.Nev., May 14,

2007); Dwayne B. v. Granholm, 2007 WL 1140920 (E.D.Mich. Apr. 17, 2007); Olivia Y. ex rel. Johnson v. Barbour, 351

F.Supp.2d 543, 567–68 (S.D.Miss.2004); Kenny A. v. Perdue, 218 F.R.D. 277, 286 (N.D.Ga.2003); Brian A. v. Sundquist, 149

F.Supp.2d 941 (M.D.Tenn.2000); Baby Neal v. Casey, 821 F.Supp. 320, 331–33 (E.D.Pa.1993), rev’d on other grounds, 43 F.3d

48 (3d Cir.1994).

3

Defendants’ reliance on Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) is similarly misplaced. Juidice

employs slightly different phrasing, asking whether the plaintiffs were given “an opportunity to fairly pursue their constitutional

claims in the ongoing state court proceedings.” Id. at 337, 97 S.Ct. 1211 (emphasis added). It is unclear how, if it all, this language

alters the analysis. In any event, Juidice, like Moore, was decided before Middlesex.

4

It is far from obvious, however, that the professional judgment standard creates an appreciably lower hurdle for plaintiffs in this

foster care case. In some instances it is true that the decision to apply one standard or the other might affect the outcome, but in this

context the decision seems to matter little. See, e.g., Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 894 (10th Cir.1992)

(“As applied to a foster care setting we doubt there is much difference in the two standards.”).

5

Although J.R. involved a § 1983 claim arising out of alleged abuse suffered by children in foster care, the court there applied the

deliberate indifference standard. J.R., 593 F.3d at 73. However, J.R. is distinguishable for several reasons. First, neither of the

parties apparently raised the issue of Youngberg’ s professional judgment standard, and, therefore, the court never addressed

Youngberg’ s applicability. Second, J.R. only involved allegations of abuse within a foster home, whereas this case centers on

alleged systemic failures within DCF. (Dkt. No. 1, Compl. ¶¶ 164–214.) Third, the abuse of the plaintiffs in J.R. was perpetrated

by a third party, not the foster parents themselves, thus making the case more comparable to DeShaney. 593 F.3d at 73. Fourth, and

finally, the plaintiffs in J.R. sought damages, not injunctive relief, which involves different considerations. See, e.g., K.H. v.

Morgan, 914 F.2d 846, 851 (7th Cir.1990) (“[T]here might of course be broader liability in an injunctive suit against [state]

officials ....”); LaShawn A. v. Dixon, 762 F.Supp. 959, 996 n. 29 (D.D.C.1991) (noting that a deliberate indifference standard “may

be warranted [in damages claims] due to the chilling effect that an unfavorable judgment may have on municipal policymakers”);

accord Kenny A. v. Perdue, No. 1:02–cv–1686, 2004 WL5503780, at *4 (N.D.Ga. Dec. 13, 2004); Braam ex rel. Braam v. State,

150 Wash.2d 689, 81 P.3d 851, 858–59 (2003).

6

One of the lead cases relied upon by Plaintiffs, Braam ex rel. Braam v. State, 150 Wash.2d 689, 81 P.3d 851 (2003), in fact reaches

the same conclusion as this court. Id. at 859–60.

7

The Supreme Court later abrogated Hewitt, but only insofar as it applied to prison regulations. See Sandin v. Conner, 515 U.S. 472,

482–84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (noting the “undesirable effects” of Hewitt on prison management and ultimately

condemning “the search for a negative implication from mandatory language in prisoner regulations”); see also Hamm, 72 F.3d at

954 (describing this “tectonic” shift). In fact, the Court noted the continuing vitality of Hewitt in other contexts. See Sandin, 515

U.S. at 482, 115 S.Ct. 2293 (observing that Hewitt’ s methodology “may be entirely sensible in the ordinary task of construing a

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statute defining rights and remedies available to the general public”).

8

Gonzaga refined the earlier three-part test set forth in Blessing, which considered: (1) whether Congress intended that the provision

in question benefit the plaintiff; (2) whether the right supposedly protected by the statute is vague and amorphous so that its

enforcement would strain judicial competence; and (3) whether the provision unambiguously imposes a binding obligation on the

States. Blessing, 520 U.S. at 340, 117 S.Ct. 1353. The First Circuit acknowledged this distinction and followed the language used

in Gonzaga. See Rio Grande, 397 F.3d at 73. This court, then, will do the same.

9

Defendants attempt, unsuccessfully, to bolster this argument by relying on the Supreme Court’s decision in Suter v. Artist M., 503

U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). In Suter, the Supreme Court held that Section 671(a)(15), a single provision of the

AACWA (not at issue here) providing that “reasonable efforts shall be made to preserve and reunify families,” did not create a

private right of action because it was too vague. Id. at 363, 112 S.Ct. 1360. Suter also contained dicta implying that the AACWA

as a whole might not be privately enforceable because of the statute’s requirement that states prepare and file a “plan,” which

conditioned federal funding on substantial compliance with the plan. See id. at 358, 112 S.Ct. 1360.

Two years later, concerned that “Suter v. Artist M. affects ... the enforceability of [AACWA]” and that it “could result in the

elimination of the ability of beneficiaries of the State plan titles of the Social Security Act, primarily children and families, to

sue to enforce the Act’s requirements,” H.R.Rep. No. 102–631, at 300, Congress unequivocally responded by enacting what has

become known as the “Suter fix,” an amendment to the Social Security Act that disclaimed any intent to foreclose private rights

of action under the AACWA and the other “State plan” titles of the Social Security Act. See 42 U.S.C. § 1320a–2 (stating that

provisions of the Social Security Act are “not to be deemed unenforceable because of [their] inclusion in a section of the Act

requiring a State plan or specifying the required contents of a State plan”).

10

Although § 671(a)(16) does not appear in the complaint, Plaintiffs’ briefs make it clear that they are asserting a right to an

individualized case plan under § 671(a)(16) in conjunction with § 675(1)(E), which merely defines the term “case plan.” The

absence of this provision in the complaint appears to be a simple oversight, which Defendants do not challenge in their briefs and

which this court need not concern itself with here.

11

“The term ‘case plan’ means a written document which includes at least the following: ... In the case of a child with respect to

whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking

to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and

willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal

guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional,

and national adoption exchanges including electronic exchange systems to facilitate orderly and timely in-State and interstate

placements.” 42 U.S.C. § 675(1)(E).

12

“The term ‘foster care maintenance payments’ means payments to cover the cost of (and the cost of providing) food, clothing,

shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, reasonable

travel to the child’s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at

the time of placement. In the case of institutional care, such term shall include the reasonable costs of administration and operation

of such institution as are necessarily required to provide the items described in the preceding sentence.” 42 U.S.C. § 675(4)(A).

13

A majority of courts has found that the AACWA establishes a privately enforceable right to a case plan. See, e.g., L.J. v. Massinga,

838 F.2d 118, 124 (4th Cir.1988); Lynch, 719 F.2d at 512; Clark K., 2007 WL 1435428, at *10; Kenny A., 218 F.R.D. at 292;

Jeanine B. ex rel. Blondis v. Thompson, 877 F.Supp. 1268, 1283–84 (E.D.Wis.1995); B.H. v. Johnson, 715 F.Supp. 1387

(N.D.Ill.1989). But see 31 Foster Children, 329 F.3d at 1271–72; Carson P., 240 F.R.D. at 544; Olivia Y., 351 F.Supp. at 562;

Charlie H., 83 F.Supp.2d at 489.

14

A majority of courts also has found that the AACWA establishes a privately enforceable right to foster care maintenance payments.

See, e.g., Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 980 (2010); C.H. v. Payne, 683 F.Supp.2d 865, 877

(S.D.Ind.2010); Cal. Alliance of Child and Family Servs. v. Allenby, 459 F.Supp.2d 919, 925 (N.D.Cal.2006); Mo. Child Care

Ass’n v. Martin, 241 F.Supp.2d 1032, 1040–41 (W.D.Mo.2003); Kenny A., 218 F.R.D. at 292; LaShawn A., 762 F.Supp. at 989.

But see D.G. v. Henry, 594 F.Supp.2d 1273, 1278 (N.D.Okla.2009); Carson P. v. Heineman, 240 F.R.D. at 540–41.

15

While the provisions at issue in Lynch are not identical to the provisions at issue here, this distinction is ultimately inconsequential.

Section 675(1) merely lists the elements that constitute a “case plan” under the other sections of the Act, and the Gonzaga analysis,

as explained in text, is unaffected by the differences in these elements.

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§ 1291. Final decisions of district courts, 28 USCA § 1291


United States Code AnnotatedTitle 28. Judiciary and Judicial Procedure (Refs & Annos)

Part IV. Jurisdiction and Venue (Refs & Annos)Chapter 83. Courts of Appeals (Refs & Annos)

28 U.S.C.A. § 1291

§ 1291. Final decisions of district courts

Currentness

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appealsfrom all final decisions of the district courts of the United States, the United States District Court for the District of the CanalZone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in theSupreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdictiondescribed in sections 1292(c) and (d) and 1295 of this title.

CREDIT(S)(June 25, 1948, c. 646, 62 Stat. 929; Oct. 31, 1951, c. 655, § 48, 65 Stat. 726; July 7, 1958, Pub.L. 85-508, § 12(e), 72 Stat.

348; Apr. 2, 1982, Pub.L. 97-164, Title I, § 124, 96 Stat. 36.)

Notes of Decisions (3231)

28 U.S.C.A. § 1291, 28 USCA § 1291Current through P.L. 113-74 approved 1-16-14

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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§ 1331. Federal question, 28 USCA § 1331



Part IV. Jurisdiction and Venue (Refs & Annos)Chapter 85. District Courts; Jurisdiction (Refs & Annos)

28 U.S.C.A. § 1331

§ 1331. Federal question

Currentness

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of theUnited States.

CREDIT(S)(June 25, 1948, c. 646, 62 Stat. 930; July 25, 1958, Pub.L. 85-554, § 1, 72 Stat. 415; Oct. 21, 1976, Pub.L. 94-574, § 2, 90

Stat. 2721; Dec. 1, 1980, Pub.L. 96-486, § 2(a), 94 Stat. 2369.)




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§ 1343. Civil rights and elective franchise, 28 USCA § 1343



Part IV. Jurisdiction and Venue (Refs & Annos)Chapter 85. District Courts; Jurisdiction (Refs & Annos)

28 U.S.C.A. § 1343

§ 1343. Civil rights and elective franchise

Currentness

(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizenof the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;

(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985of Title 42 which he had knowledge were about to occur and power to prevent;

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right,privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rightsof citizens or of all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civilrights, including the right to vote.

(b) For purposes of this section--

(1) the District of Columbia shall be considered to be a State; and

(2) any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the Districtof Columbia.

CREDIT(S)(June 25, 1948, c. 646, 62 Stat. 932; Sept. 3, 1954, c. 1263, § 42, 68 Stat. 1241; Sept. 9, 1957, Pub.L. 85-315, Part III, § 121,

71 Stat. 637; Dec. 29, 1979, Pub.L. 96-170, § 2, 93 Stat. 1284.)



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§ 1343. Civil rights and elective franchise, 28 USCA § 1343



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§ 622. State plans for child welfare services, 42 USCA § 622


United States Code AnnotatedTitle 42. The Public Health and Welfare

Chapter 7. Social Security (Refs & Annos)Subchapter IV. Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services (Refs & Annos)

Part B. Child and Family Services (Refs & Annos)Subpart 1. Stephanie Tubbs Jones Child Welfare Services Program (Refs & Annos)

42 U.S.C.A. § 622

§ 622. State plans for child welfare services

Effective: October 1, 2011Currentness

(a) Joint development

In order to be eligible for payment under this subpart, a State must have a plan for child welfare services which has beendeveloped jointly by the Secretary and the State agency designated pursuant to subsection (b)(1) of this section, and whichmeets the requirements of subsection (b) of this section.

(b) Requisite features of State plans

Each plan for child welfare services under this subpart shall--

(1) provide that (A) the individual or agency that administers or supervises the administration of the State's services program

under division A 1 of subchapter XX of this chapter will administer or supervise the administration of the plan (except asotherwise provided in section 103(d) of the Adoption Assistance and Child Welfare Act of 1980), and (B) to the extentthat child welfare services are furnished by the staff of the State agency or local agency administering the plan, a singleorganizational unit in such State or local agency, as the case may be, will be responsible for furnishing such child welfareservices;

(2) provide for coordination between the services provided for children under the plan and the services and assistance provided

under division A 1 of subchapter XX of this chapter, under the State program funded under part A of this subchapter, under

the State plan approved under subpart 2 of this part, under the State plan approved under the State plan approved 2 under partE of this subchapter, and under other State programs having a relationship to the program under this subpart, with a view toprovision of welfare and related services which will best promote the welfare of such children and their families;

(3) include a description of the services and activities which the State will fund under the State program carried out pursuantto this subpart, and how the services and activities will achieve the purpose of this subpart;

(4) contain a description of--

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(A) the steps the State will take to provide child welfare services statewide and to expand and strengthen the range ofexisting services and develop and implement services to improve child outcomes; and

(B) the child welfare services staff development and training plans of the State;

(5) provide, in the development of services for children, for utilization of the facilities and experience of voluntary agenciesin accordance with State and local programs and arrangements, as authorized by the State;

(6) provide that the agency administering or supervising the administration of the plan will furnish such reports, containingsuch information, and participate in such evaluations, as the Secretary may require;

(7) provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity ofchildren in the State for whom foster and adoptive homes are needed;

(8) provide assurances that the State--

(A) is operating, to the satisfaction of the Secretary--

(i) a statewide information system from which can be readily determined the status, demographic characteristics,location, and goals for the placement of every child who is (or, within the immediately preceding 12 months, has been)in foster care;

(ii) a case review system (as defined in section 675(5) of this title) for each child receiving foster care under thesupervision of the State;

(iii) a service program designed to help children--

(I) where safe and appropriate, return to families from which they have been removed; or

(II) be placed for adoption, with a legal guardian, or, if adoption or legal guardianship is determined not to beappropriate for a child, in some other planned, permanent living arrangement, which may include a residentialeducational program; and

(iv) a preplacement preventive services program designed to help children at risk of foster care placement remain safelywith their families; and

(B) has in effect policies and administrative and judicial procedures for children abandoned at or shortly after birth(including policies and procedures providing for legal representation of the children) which enable permanent decisionsto be made expeditiously with respect to the placement of the children;

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(18) include a description of the activities that the State has undertaken to reduce the length of time children who have notattained 5 years of age are without a permanent family, and the activities the State undertakes to address the developmentalneeds of such children who receive benefits or services under this part or part E; and

(19) contain a description of the sources used to compile information on child maltreatment deaths required by Federallaw to be reported by the State agency referred to in paragraph (1), and to the extent that the compilation does not includeinformation on such deaths from the State vital statistics department, child death review teams, law enforcement agencies,or offices of medical examiners or coroners, the State shall describe why the information is not so included and how theState will include the information.

(c) Definitions

In this subpart:

(1) Administrative costs

The term “administrative costs” means costs for the following, but only to the extent incurred in administering the State plandeveloped pursuant to this subpart: procurement, payroll management, personnel functions (other than the portion of thesalaries of supervisors attributable to time spent directly supervising the provision of services by caseworkers), management,maintenance and operation of space and property, data processing and computer services, accounting, budgeting, auditing,and travel expenses (except those related to the provision of services by caseworkers or the oversight of programs fundedunder this subpart).

(2) Other terms

For definitions of other terms used in this part, see section 675 of this title.

CREDIT(S)(Aug. 14, 1935, c. 531, Title IV, § 422, as added and amended Jan. 2, 1968, Pub.L. 90-248, Title II, § 240(c), (d), 81 Stat.

912, 915; Jan. 4, 1975, Pub.L. 93-647, § 3(a)(6), (7), (h), 88 Stat. 2348, 2349; June 17, 1980, Pub.L. 96-272, Title I, § 103(a),94 Stat. 517; Dec. 19, 1989, Pub.L. 101-239, Title X, § 10403(b)(1), 103 Stat. 2488; Aug. 10, 1993, Pub.L. 103-66, Title XIII,§ 13711(b)(1), 107 Stat. 655; Oct. 20, 1994, Pub.L. 103-382, Title V, § 554, 108 Stat. 4057; Oct. 31, 1994, Pub.L. 103-432,Title II, §§ 202(a), 204(a), 108 Stat. 4453, 4456; Aug. 22, 1996, Pub.L. 104-193, Title I, § 108(b), 110 Stat. 2165; Aug. 5, 1997,Pub.L. 105-33, Title V, § 5592(a)(1)(A), (2), 111 Stat. 644; Nov. 19, 1997, Pub.L. 105-89, Title I, § 102(1), Title II, § 202(a),111 Stat. 2117, 2125; July 16, 1998, Pub.L. 105-200, Title IV, § 402(b), 112 Stat. 673; Oct. 6, 2000, Pub.L. 106-279, Title II,§ 205, 114 Stat. 837; Feb. 8, 2006, Pub.L. 109-171, Title VII, § 7401(b), 120 Stat. 150; July 3, 2006, Pub.L. 109-239, § 13,120 Stat. 514; Sept. 28, 2006, Pub.L. 109-288, §§ 6(c), 7(a), 120 Stat. 1244, 1248; Oct. 7, 2008, Pub.L. 110-351, Title II, §205, 122 Stat. 3961; Mar. 23, 2010, Pub.L. 111-148, Title II, § 2955(c), Title VI, § 6703(d)(2)(B), 124 Stat. 352, 803; Pub.L.112-34, Title I, § 101(b), Sept. 30, 2011, 125 Stat. 369.)


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1 Division A of subchapter XX, was in the original a reference to subtitle 1 of Title XX, and was translated as if referring to Subtitle A

of Title XX of the Social Security Act, which is classified to division A of subchapter XX of this chapter, 42 U.S.C.A. § 1397 et seq.,

to reflect the probable intent of Congress. Title XX of the Act, enacting subchapter XX of this chapter, does not contain a subtitle 1.

2 So in original. The second “under the State plan” probably should not appear.

3 So in original. Probably should be “provide”.



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§ 624. Payment to States, 42 USCA § 624




Part B. Child and Family Services (Refs & Annos)Subpart 1. Stephanie Tubbs Jones Child Welfare Services Program (Refs & Annos)

42 U.S.C.A. § 624

§ 624. Payment to States


(a) Payment schedule

From the sums appropriated therefor and the allotment under this subpart, subject to the conditions set forth in this section,the Secretary shall from time to time pay to each State that has a plan developed in accordance with section 622 of this titlean amount equal to 75 percent of the total sum expended under the plan (including the cost of administration of the plan) inmeeting the costs of State, district, county, or other local child welfare services.

(b) Computation and method of payment

The method of computing and making payments under this section shall be as follows:

(1) The Secretary shall, prior to the beginning of each period for which a payment is to be made, estimate the amount to bepaid to the State for such period under the provisions of this section.

(2) From the allotment available therefor, the Secretary shall pay the amount so estimated, reduced or increased, as the casemay be, by any sum (not previously adjusted under this section) by which he finds that his estimate of the amount to be paidthe State for any prior period under this section was greater or less than the amount which should have been paid to the Statefor such prior period under this section.

(c) Limitation on use of Federal funds for child care, foster care maintenance payments, or adoption assistance payments

The total amount of Federal payments under this subpart for a fiscal year beginning after September 30, 2007, that may be usedby a State for expenditures for child care, foster care maintenance payments, or adoption assistance payments shall not exceedthe total amount of such payments for fiscal year 2005 that were so used by the State.

(d) Limitation on use by States of non-Federal funds for foster care maintenance payments to match Federal funds

For any fiscal year beginning after September 30, 2007, State expenditures of non-Federal funds for foster care maintenancepayments shall not be considered to be expenditures under the State plan developed under this subpart for the fiscal year to

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the extent that the total of such expenditures for the fiscal year exceeds the total of such expenditures under the State plandeveloped under this subpart for fiscal year 2005.

(e) Limitation on reimbursement for administrative costs

A payment may not be made to a State under this section with respect to expenditures during a fiscal year for administrativecosts, to the extent that the total amount of the expenditures exceeds 10 percent of the total expenditures of the State during thefiscal year for activities funded from amounts provided under this subpart.

(f)(1)(A) Each State shall take such steps as are necessary to ensure that the total number of visits made by caseworkers on amonthly basis to children in foster care under the responsibility of the State during a fiscal year is not less than 90 percent (or,in the case of fiscal year 2015 or thereafter, 95 percent) of the total number of such visits that would occur during the fiscalyear if each such child were so visited once every month while in such care.

(B) If the Secretary determines that a State has failed to comply with subparagraph (a) for a fiscal year, then the percentage thatwould otherwise apply for purposes of subsection (a) for the fiscal year shall be reduced by--

(i) 1, if the number of full percentage points by which the State fell short of the percentage specified in subparagraph (A)is less than 10;

(ii) 3, if the number of full percentage points by which the State fell short, as described in clause (i), is not less than 10and less than 20; or

(iii) 5, if the number of full percentage points by which the State fell short, as described in clause (i), is not less than 20.

(2)(A) Each State shall take such steps as are necessary to ensure that not less than 50 percent of the total number of visitsmade by caseworkers to children in foster care under the responsibility of the State during a fiscal year occur in the residenceof the child involved.

(B) If the Secretary determines that a State has failed to comply with subparagraph (a) for a fiscal year, then the percentage thatwould otherwise apply for purposes of subsection (a) for the fiscal year shall be reduced by--

(i) 1, if the number of full percentage points by which the State fell short of the percentage specified in subparagraph (A)is less than 10;

(ii) 3, if the number of full percentage points by which the State fell short, as described in clause (i), is not less than 10and less than 20; or

(iii) 5, if the number of full percentage points by which the State fell short, as described in clause (i), is not less than 20.

CREDIT(S)

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(Aug. 14, 1935, c. 531, Title IV, § 424, formerly § 423, as added Jan. 2, 1968, Pub.L. 90-248, Title II, § 240(c), 81 Stat. 913;amended Apr. 21, 1976, Pub.L. 94-273, § 22, 90 Stat. 379; June 17, 1980, Pub.L. 96-272, Title I, § 103(a), 94 Stat. 518; Aug.10, 1993, Pub.L. 103-66, Title XIII, § 13711(b)(2), 107 Stat. 655; Oct. 31, 1994, Pub.L. 103-432, Title II, § 202(d)(1), 108 Stat.4454; renumbered § 424 and amended Sept. 28, 2006, Pub.L. 109-288, §§ 6(b)(2), (e), (7)(b), 11(a)(2), 120 Stat. 1244, 1246,1248, 1255; Pub.L. 112-34, Title I, § 101(c), Sept. 30, 2011, 125 Stat. 370.)



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§ 670. Congressional declaration of purpose; authorization of..., 42 USCA § 670




Part E. Federal Payments for Foster Care and Adoption Assistance (Refs & Annos)

42 U.S.C.A. § 670

§ 670. Congressional declaration of purpose; authorization of appropriations

Effective: July 1, 1997Currentness

For the purpose of enabling each State to provide, in appropriate cases, foster care and transitional independent living programsfor children who otherwise would have been eligible for assistance under the State's plan approved under part A of thissubchapter (as such plan was in effect on June 1, 1995) and adoption assistance for children with special needs, there areauthorized to be appropriated for each fiscal year (commencing with the fiscal year which begins October 1, 1980) such sumsas may be necessary to carry out the provisions of this part. The sums made available under this section shall be used for makingpayments to States which have submitted, and had approved by the Secretary, State plans under this part.

CREDIT(S)(Aug. 14, 1935, c. 531, Title IV, § 470, as added June 17, 1980, Pub.L. 96-272, Title I, § 101(a)(1), 94 Stat. 501; amended

Apr. 7, 1986, Pub.L. 99-272, Title XII, § 12307(d), 100 Stat. 297; Oct. 22, 1986, Pub.L. 99-514, Title XVII, § 1711(c)(1), 100Stat. 2784; Aug. 22, 1996, Pub.L. 104-193, Title I, § 108(d)(1), 110 Stat. 2166.)




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§ 671. State plan for foster care and adoption assistance, 42 USCA § 671





42 U.S.C.A. § 671

§ 671. State plan for foster care and adoption assistance

Effective: March 23, 2010Currentness

(a) Requisite features of State plan

In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which--

(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistancein accordance with section 673 of this title;

(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of thissubchapter shall administer, or supervise the administration of, the program authorized by this part;

(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatoryupon them;

(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with

the programs at the State or local level assisted under parts A and B of this subchapter, under division A 1 of subchapter XXof this chapter, and under any other appropriate provision of Federal law;

(5) provides that the State will, in the administration of its programs under this part, use such methods relating to theestablishment and maintenance of personnel standards on a merit basis as are found by the Secretary to be necessary forthe proper and efficient operation of the programs, except that the Secretary shall exercise no authority with respect to theselection, tenure of office, or compensation of any individual employed in accordance with such methods;

(6) provides that the State agency referred to in paragraph (2) (hereinafter in this part referred to as the “State agency”)will make such reports, in such form and containing such information as the Secretary may from time to time require, andcomply with such provisions as the Secretary may from time to time find necessary to assure the correctness and verificationof such reports;

(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;

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(iii) the parental rights of the parent to a sibling have been terminated involuntarily;

(E) if reasonable efforts of the type described in subparagraph (B) are not made with respect to a child as a result of adetermination made by a court of competent jurisdiction in accordance with subparagraph (D)--

(i) a permanency hearing (as described in section 675(5)(C) of this title), which considers in-State and out-of-Statepermanent placement options for the child, shall be held for the child within 30 days after the determination; and

(ii) reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, andto complete whatever steps are necessary to finalize the permanent placement of the child; and

(F) reasonable efforts to place a child for adoption or with a legal guardian, including identifying appropriate in-State and

out-of-State placements 2 may be made concurrently with reasonable efforts of the type described in subparagraph (B);

(16) provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster caremaintenance payments under the State plan and provides for a case review system which meets the requirements describedin section 675(5)(B) of this title with respect to each such child;

(17) provides that, where appropriate, all steps will be taken, including cooperative efforts with the State agenciesadministering the program funded under part A of this subchapter and plan approved under part D of this subchapter, tosecure an assignment to the State of any rights to support on behalf of each child receiving foster care maintenance paymentsunder this part;

(18) not later than January 1, 1997, provides that neither the State nor any other entity in the State that receives funds fromthe Federal Government and is involved in adoption or foster care placements may--

(A) deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or nationalorigin of the person, or of the child, involved; or

(B) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national originof the adoptive or foster parent, or the child, involved;

(19) provides that the State shall consider giving preference to an adult relative over a non-related caregiver when determininga placement for a child, provided that the relative caregiver meets all relevant State child protection standards;

(20)(A) provides procedures for criminal records checks, including fingerprint-based checks of national crime informationdatabases (as defined in section 534(e)(3)(A) of Title 28), for any prospective foster or adoptive parent before the foster oradoptive parent may be finally approved for placement of a child regardless of whether foster care maintenance payments oradoption assistance payments are to be made on behalf of the child under the State plan under this part, including proceduresrequiring that--

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(C) describes the requirements under paragraph (10) of this subsection to become a foster family home and the additionalservices and supports that are available for children placed in such a home; and

(D) if the State has elected the option to make kinship guardianship assistance payments under paragraph (28) of thissubsection, describes how the relative guardian of the child may subsequently enter into an agreement with the State undersection 673(d) of this title to receive the payments;

(30) provides assurances that each child who has attained the minimum age for compulsory school attendance under statelaw and with respect to whom there is eligibility for a payment under the state plan is a full-time elementary or secondaryschool student or has completed secondary school, and for purposes of this paragraph, the term “elementary or secondaryschool student” means, with respect to a child, that the child is--

(A) enrolled (or in the process of enrolling) in an institution which provides elementary or secondary education, asdetermined under the law of the State or other jurisdiction in which the institution is located;

(B) instructed in elementary or secondary education at home in accordance with a home school law of the State or otherjurisdiction in which the home is located;

(C) in an independent study elementary or secondary education program in accordance with the law of the State or otherjurisdiction in which the program is located, which is administered by the local school or school district; or

(D) incapable of attending school on a full-time basis due to the medical condition of the child, which incapability issupported by regularly updated information in the case plan of the child;

(31) provides that reasonable efforts shall be made--

(A) to place siblings removed from their home in the same foster care, kinship guardianship, or adoptive placement, unlessthe State documents that such a joint placement would be contrary to the safety or well-being of any of the siblings; and

(B) in the case of siblings removed from their home who are not so jointly placed, to provide for frequent visitation or otherongoing interaction between the siblings, unless that State documents that frequent visitation or other ongoing interactionwould be contrary to the safety or well-being of any of the siblings;

(32) provides that the State will negotiate in good faith with any Indian tribe, tribal organization or tribal consortium in theState that requests to develop an agreement with the State to administer all or part of the program under this part on behalfof Indian children who are under the authority of the tribe, organization, or consortium, including foster care maintenancepayments on behalf of children who are placed in State or tribally licensed foster family homes, adoption assistance payments,and, if the State has elected to provide such payments, kinship guardianship assistance payments under section 673(d) of thistitle, and tribal access to resources for administration, training, and data collection under this part; and

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(33) provides that the State will inform any individual who is adopting, or whom the State is made aware is consideringadopting, a child who is in foster care under the responsibility of the State of the potential eligibility of the individual for aFederal tax credit under section 23 of the Internal Revenue Code of 1986.

(b) Approval of plan by Secretary

The Secretary shall approve any plan which complies with the provisions of subsection (a) of this section.

(c) Use of child welfare records in State court proceedings

Subsection (a)(8) of this section shall not be construed to limit the flexibility of a State in determining State policies relatingto public access to court proceedings to determine child abuse and neglect or other court hearings held pursuant to part B ofthis subchapter or this part, except that such policies shall, at a minimum, ensure the safety and well-being of the child, parents,and family.

CREDIT(S)(Aug. 14, 1935, c. 531, Title IV, § 471, as added June 17, 1980, Pub.L. 96-272, Title I, § 101(a)(1), 94 Stat. 501; amended

Aug. 13, 1981, Pub.L. 97-35, Title XXIII, § 2353(r), 95 Stat. 874; Sept. 3, 1982, Pub.L. 97-248, Title I, § 160(d), 96 Stat. 400;Aug. 16, 1984, Pub.L. 98-378, § 11(c), 98 Stat. 1318; Oct. 22, 1986, Pub.L. 99-514, Title XVII, § 1711(c)(2), 100 Stat. 2784;Oct. 13, 1988, Pub.L. 100-485, Title II, § 202(c)(1), 102 Stat. 2378; Nov. 5, 1990, Pub.L. 101-508, Title V, § 5054(b), 104 Stat.1388-229; Aug. 10, 1993, Pub.L. 103-66, Title XIII, § 13711(b)(4), 107 Stat. 655; Oct. 31, 1994, Pub.L. 103-432, Title II, §203(b), 108 Stat. 4456; Aug. 20, 1996, Pub.L. 104-188, Title I, § 1808(a), 110 Stat. 1903; Aug. 22, 1996, Pub.L. 104-193, TitleI, § 108(d)(2), Title V, § 505, 110 Stat. 2166, 2278; Aug. 5, 1997, Pub.L. 105-33, Title V, § 5591(b), 111 Stat. 643; Nov. 19,1997, Pub.L. 105-89, Title I, §§ 101(a), 106, Title III, §§ 306, 308, 111 Stat. 2116, 2120, 2132, 2133; July 16, 1998, Pub.L.105-200, Title III, § 301(a), 112 Stat. 658; Dec. 14, 1999, Pub.L. 106-169, Title I, § 112(a), Title IV, § 401(o), 113 Stat. 1829,1859; Feb. 8, 2006, Pub.L. 109-171, Title VII, § 7401(c), 120 Stat. 150; July 3, 2006, Pub.L. 109-239, §§ 3, 4(a)(1), 10, 120Stat. 508, 513; July 27, 2006, Pub.L. 109-248, Title I, § 152(a), (b), 120 Stat. 608, 609; Dec. 20, 2006, Pub.L. 109-432, Div.B, Title IV, § 405(c)(1)(B)(i), 120 Stat. 2999; Oct. 7, 2008, Pub.L. 110-351, Title I, §§ 101(a), (c)(2)(A), (B)(i), 103, 104(a),Title II, §§ 204(b), 206, Title III, § 301(c)(1)(A), Title IV, § 403, 122 Stat. 3950, 3951, 3956, 3960, 3962, 3969, 3979; Mar.23, 2010, Pub.L. 111-148, Title VI, § 6703(d)(2)(B), 124 Stat. 803.)


Footnotes1 Division A of subchapter XX, was in the original a reference to subtitle 1 of Title XX, and was translated as if referring to Subtitle A

of Title XX of the Social Security Act, which is classified to division A of subchapter XX of this chapter, 42 U.S.C.A. § 1397 et seq.,

to reflect the probable intent of Congress. Title XX of the Act, enacting subchapter XX of this chapter, does not contain a subtitle 1.

2 So in original. A comma probably should appear.

3 So in original. The word “and” probably should not appear.

4 So in original. Probably should be “includes”.



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§ 675. Definitions, 42 USCA § 675





42 U.S.C.A. § 675

§ 675. Definitions


As used in this part or part B of this subchapter:

(1) The term “case plan” means a written document which includes at least the following:

(A) A description of the type of home or institution in which a child is to be placed, including a discussion of the safety andappropriateness of the placement and how the agency which is responsible for the child plans to carry out the voluntaryplacement agreement entered into or judicial determination made with respect to the child in accordance with section672(a)(1) of this title.

(B) A plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, andfoster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own safe homeor the permanent placement of the child, and address the needs of the child while in foster care, including a discussion ofthe appropriateness of the services that have been provided to the child under the plan.

(C) The health and education records of the child, including the most recent information available regarding--

(i) the names and addresses of the child's health and educational providers;

(ii) the child's grade level performance;

(iii) the child's school record;

(iv) a record of the child's immunizations;

(v) the child's known medical problems;

(vi) the child's medications; and

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(vii) any other relevant health and education information concerning the child determined to be appropriate by the Stateagency.

(D) Where appropriate, for a child age 16 or over, a written description of the programs and services which will help suchchild prepare for the transition from foster care to independent living.

(E) In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home,documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for thechild, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanentliving arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall includechild specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronicexchange systems to facilitate orderly and timely in-State and interstate placements.

(F) In the case of a child with respect to whom the permanency plan is placement with a relative and receipt of kinshipguardianship assistance payments under section 673(d) of this title, a description of--

(i) the steps that the agency has taken to determine that it is not appropriate for the child to be returned home or adopted;

(ii) the reasons for any separation of siblings during placement;

(iii) the reasons why a permanent placement with a fit and willing relative through a kinship guardianship assistancearrangement is in the child's best interests;

(iv) the ways in which the child meets the eligibility requirements for a kinship guardianship assistance payment;

(v) the efforts the agency has made to discuss adoption by the child's relative foster parent as a more permanent alternativeto legal guardianship and, in the case of a relative foster parent who has chosen not to pursue adoption, documentationof the reasons therefor; and

(vi) the efforts made by the State agency to discuss with the child's parent or parents the kinship guardianship assistancearrangement, or the reasons why the efforts were not made.

(G) A plan for ensuring the educational stability of the child while in foster care, including--

(i) assurances that each placement of the child in foster care takes into account the appropriateness of the currenteducational setting and the proximity to the school in which the child is enrolled at the time of placement; and

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(ii)(I) an assurance that the State agency has coordinated with appropriate local educational agencies (as defined undersection 7801 of Title 20) to ensure that the child remains in the school in which the child is enrolled at the time ofeach placement; or

(II) if remaining in such school is not in the best interests of the child, assurances by the State agency and the localeducational agencies to provide immediate and appropriate enrollment in a new school, with all of the educationalrecords of the child provided to the school.

(2) The term “parents” means biological or adoptive parents or legal guardians, as determined by applicable State law.

(3) The term “adoption assistance agreement” means a written agreement, binding on the parties to the agreement, betweenthe State agency, other relevant agencies, and the prospective adoptive parents of a minor child which at a minimum (A)specifies the nature and amount of any payments, services, and assistance to be provided under such agreement, and (B)stipulates that the agreement shall remain in effect regardless of the State of which the adoptive parents are residents at anygiven time. The agreement shall contain provisions for the protection (under an interstate compact approved by the Secretaryor otherwise) of the interests of the child in cases where the adoptive parents and child move to another State while theagreement is effective.

(4)(A) The term “foster care maintenance payments” means payments to cover the cost of (and the cost of providing) food,clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child,reasonable travel to the child's home for visitation, and reasonable travel for the child to remain in the school in which thechild is enrolled at the time of placement. In the case of institutional care, such term shall include the reasonable costs ofadministration and operation of such institution as are necessarily required to provide the items described in the precedingsentence.

(B) In cases where--

(i) a child placed in a foster family home or child-care institution is the parent of a son or daughter who is in the samehome or institution, and

(ii) payments described in subparagraph (A) are being made under this part with respect to such child,

the foster care maintenance payments made with respect to such child as otherwise determined under subparagraph (A)shall also include such amounts as may be necessary to cover the cost of the items described in that subparagraph withrespect to such son or daughter.

(5) The term “case review system” means a procedure for assuring that--

(A) each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like)and most appropriate setting available and in close proximity to the parents' home, consistent with the best interest andspecial needs of the child, which--

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(V) incapable of doing any of the activities described in subclauses (I) through (IV) due to a medical condition, whichincapability is supported by regularly updated information in the case plan of the child.

CREDIT(S)(Aug. 14, 1935, c. 531, Title IV, § 475, as added and amended June 17, 1980, Pub.L. 96-272, Title I, §§ 101(a)(1), 102(a)(4),

94 Stat. 510, 514; Apr. 7, 1986, Pub.L. 99-272, Title XII, §§ 12305(b)(2), 12307(b), 100 Stat. 293, 296; Oct. 22, 1986, Pub.L.99-514, Title XVII, § 1711(c)(6), 100 Stat. 2784; Dec. 22, 1987, Pub. L. 100-203, Title IX, § 9133(a), 101 Stat. 1330-314; Nov.10, 1988, Pub.L. 100-647, Title VIII, § 8104(e), 102 Stat. 3797; Dec. 19, 1989, Pub.L. 101-239, Title VIII, § 8007(a), (b), 103Stat. 2462; Oct. 31, 1994, Pub.L. 103-432, Title II, §§ 206(a), (b), 209(a), (b), 265(c), 108 Stat. 4457, 4459, 4469; Nov. 19,1997, Pub.L. 105-89, Title I, §§ 101(b), 102(2), 103(a), (b), 104, 107, Title III, § 302, 111 Stat. 2117, 2118, 2120, 2121, 2128;July 3, 2006, Pub.L. 109-239, §§ 6, 7, 8(a), 11, 12, 120 Stat. 512 to 514; Sept. 28, 2006, Pub.L. 109-288, § 10, 120 Stat. 1255;Oct. 7, 2008, Pub.L. 110-351, Title I, § 101(c)(4), Title II, §§ 201(a), (d), 202, 204(a), 122 Stat. 3952, 3957, 3959, 3960; Mar.23, 2010, Pub.L. 111-148, Title II, § 2955(a), 124 Stat. 352; Pub.L. 112-34, Title I, § 106(a), (b), Sept. 30, 2011, 125 Stat. 377.)


Footnotes1 So in original. The semicolon probably should be a comma.



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§ 1983. Civil action for deprivation of rights, 42 USCA § 1983



Chapter 21. Civil Rights (Refs & Annos)Subchapter I. Generally

42 U.S.C.A. § 1983

§ 1983. Civil action for deprivation of rights


<Notes of Decisions for 42 USCA § 1983 are displayed in six separate documents. Notes of Decisions for subdivisionsI to IX are contained in this document. For additional Notes of Decisions, see 42 § 1983, ante.>

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the Districtof Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereofto the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the partyinjured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against ajudicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless adeclaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congressapplicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

CREDIT(S)(R.S. § 1979; Pub.L. 96-170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub.L. 104-317, Title III, § 309(c), Oct. 19, 1996, 110 Stat.

3853.)




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§ 74.26 Non–Federal audits., 45 C.F.R. § 74.26


Code of Federal RegulationsTitle 45. Public Welfare

Subtitle A. Department of Health and Human Services (Refs & Annos)Subchapter A. General Administration (Refs & Annos)

Part 74. Uniform Administrative Requirements for Awards and Subawards to Institutions of HigherEducation, Hospitals, Other Nonprofit Organizations, and Commercial Organizations (Refs & Annos)

Subpart C. Post–Award Requirements (Refs & Annos)Financial and Program Management

45 C.F.R. § 74.26

§ 74.26 Non–Federal audits.

Currentness

(a) Recipients and subrecipients that are institutions of higher education or other non-profit organizations (including hospitals)shall be subject to the audit requirements contained in the Single Audit Act Amendments of 1996 (31 U.S.C. 7501–7507) andrevised OMB Circular A–133, “Audits of States, Local Governments, and Non–Profit Organizations.”

(b) State and local governments shall be subject to the audit requirements contained in the Single Audit Act Amendmentsof 1996 (31 U.S.C. 7501–7507) and revised OMB Circular A–133, “Audits of States, Local Governments, and Non–ProfitOrganizations.”

(c) For-profit hospitals not covered by the audit provisions of revised OMB Circular A–133 shall be subject to the auditrequirements of the Federal awarding agencies.

(d)(1) Recipients and subrecipients that are commercial organizations (including for-profit hospitals) have two options regardingaudits:

(i) A financial related audit (as defined in the Government Auditing Standards, GPO Stock 020–000–00–265–4) of aparticular award in accordance with Government Auditing Standards, in those cases where the recipient receives awardsunder only one HHS program; or, if awards are received under multiple HHS programs, a financial related audit of allHHS awards in accordance with Government Auditing Standards; or

(ii) An audit that meets the requirements contained in OMB Circular A–133.

(2) Commercial organizations that receive annual HHS awards totaling less than OMB Circular A–133's audit requirementthreshold are exempt from requirements for a non–Federal audit for that year, but records must be available for reviewby appropriate officials of Federal agencies.

Credits[61 FR 11746, March 22, 1996; 61 FR 15564, April 8, 1996; 62 FR 41878, Aug. 4, 1997; 62 FR 45939, 45945, Aug. 29, 1997]

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§ 74.26 Non–Federal audits., 45 C.F.R. § 74.26


SOURCE: 45 FR 22576, April 3, 1980; 50 FR 31716, Aug. 6, 1985; 59 FR 43760, Aug. 25, 1994; 59 FR 43764, Aug. 25, 1994;61 FR 11746, March 22, 1996; 62 FR 16955, 17005, April 8, 1997; 62 FR 31669, June 10, 1997; 62 FR 41878, Aug. 4, 1997;65 FR 14418, March 16, 2000; 68 FR 52844, Sept. 8, 2003, unless otherwise noted.

AUTHORITY: 5 U.S.C. 301.


Current through March 13, 2014; 79 FR 14185


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§ 74.51 Monitoring and reporting program performance., 45 C.F.R. § 74.51



Subtitle A. Department of Health and Human Services (Refs & Annos)Subchapter A. General Administration (Refs & Annos)

Part 74. Uniform Administrative Requirements for Awards and Subawards to Institutions of HigherEducation, Hospitals, Other Nonprofit Organizations, and Commercial Organizations (Refs & Annos)

Subpart C. Post–Award Requirements (Refs & Annos)Reports and Records

45 C.F.R. § 74.51

§ 74.51 Monitoring and reporting program performance.

Currentness

(a) Recipients are responsible for managing and monitoring each project, program, subaward, function or activity supportedby the award. Recipients shall monitor subawards to ensure that subrecipients have met the audit requirements as set forth in§ 74.26.

(b) The HHS awarding agency will prescribe the frequency with which the performance reports shall be submitted. Exceptas provided in paragraph (f) of this section, performance reports will not be required more frequently than quarterly or, lessfrequently than annually. Annual reports shall be due 90 calendar days after the award year; quarterly or semi-annual reportsshall be due 30 days after the reporting period. The HHS awarding agency may require annual reports before the anniversarydates of multiple year awards in lieu of these requirements. The final performance reports are due 90 calendar days after theexpiration or termination of the award.

(c) If inappropriate, a final technical or performance report will not be required after completion of the project.

(d) Performance reports shall generally contain, for each award, brief information on each of the following:

(1) A comparison of actual accomplishments with the goals and objectives established for the period, the findings ofthe investigator, or both. Whenever appropriate and the output of programs or projects can be readily quantified, suchquantitative data should be related to cost data for computation of unit costs.

(2) Reasons why established goals were not met, if appropriate.

(3) Other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.

(e) Recipients shall submit the original and two copies of performance reports.

(f) Recipients shall immediately notify the HHS awarding agency of developments that have a significant impact on theaward-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which

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§ 74.51 Monitoring and reporting program performance., 45 C.F.R. § 74.51


materially impair the ability to meet the objectives of the award. This notification shall include a statement of the action takenor contemplated, and any assistance needed to resolve the situation.

(g) HHS may make site visits, as needed.

(h) The HHS awarding agency complies with the applicable report clearance requirements of 5 CFR part 1320, “ControllingPaperwork Burdens on the Public,” when requesting performance data from recipients.

SOURCE: 45 FR 22576, April 3, 1980; 50 FR 31716, Aug. 6, 1985; 59 FR 43760, Aug. 25, 1994; 59 FR 43764, Aug. 25, 1994;61 FR 11746, March 22, 1996; 62 FR 16955, 17005, April 8, 1997; 62 FR 31669, June 10, 1997; 62 FR 41878, Aug. 4, 1997;65 FR 14418, March 16, 2000; 68 FR 52844, Sept. 8, 2003, unless otherwise noted.

AUTHORITY: 5 U.S.C. 301.




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§ 1355.34 Criteria for determining substantial conformity., 45 C.F.R. § 1355.34



Subtitle B. Regulations Relating to Public WelfareChapter XIII. Office of Human Development Services, Department of Health and Human Services

Subchapter G. The Administration on Children, Youth and Families, Foster Care MaintenancePayments, Adoption Assistance, and Child and Family Services (Refs & Annos)

Part 1355. General (Refs & Annos)

45 C.F.R. § 1355.34

§ 1355.34 Criteria for determining substantial conformity.

Effective: February 6, 2012Currentness

(a) Criteria to be satisfied. ACF will determine a title IV–E agency's substantial conformity with title IV–B and title IV–E planrequirements based on the following:

(1) Its ability to meet national standards, set by the Secretary, for the statewide/Tribal service area data indicators associatedwith specific outcomes for children and families;

(2) Its ability to meet criteria related to outcomes for children and families; and

(3) Its ability to meet criteria related to the title IV–E agency's capacity to deliver services leading to improved outcomes.

(b) Criteria related to outcomes.

(1) A title IV–E agency's substantial conformity will be determined by its ability to substantially achieve the followingchild and family service outcomes:

(i) In the area of child safety:

(A) Children are, first and foremost, protected from abuse and neglect; and,

(B) Children are safely maintained in their own homes whenever possible and appropriate;

(ii) In the area of permanency for children:

(A) Children have permanency and stability in their living situations; and

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(B) The continuity of family relationships and connections is preserved for children; and

(iii) In the area of child and family well-being:

(A) Families have enhanced capacity to provide for their children's needs;

(B) Children receive appropriate services to meet their educational needs; and

(C) Children receive adequate services to meet their physical and mental health needs.

(2) A title IV–E agency's level of achievement with regard to each outcome reflects the extent to which a title IV–E agencyhas:

(i) Met the national standard(s) for the statewide/Tribal service area data indicator(s) associated with that outcome, ifapplicable; and,

(ii) Implemented the following CFSP requirements or assurances:

(A) The requirements in 45 CFR 1357.15(p) regarding services designed to assure the safety and protection of childrenand the preservation and support of families;

(B) The requirements in 45 CFR 1357.15(q) regarding the permanency provisions for children and families in sections422 and 471 of the Act;

(C) The requirements in section 422(b)(7) of the Act regarding recruitment of potential foster and adoptive families;

(D) The assurances as required by section 422(b)(8)(B) of the Act regarding policies and procedures for abandonedchildren;

(E) The requirements in section 422(b)(9) of the Act regarding the State's compliance with the Indian Child WelfareAct;

(F) The requirements in section 422(b)(10) of the Act regarding a title IV–E agency's plan for effective use of cross-jurisdictional resources to facilitate timely adoptive or permanent placements; and,

(G) The requirements in section 471(a)(15) of the Act regarding reasonable efforts to prevent removals of childrenfrom their homes, to make it possible for children in foster care to safely return to their homes, or, when the child is

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not able to return home, to place the child in accordance with the permanency plan and complete the steps necessaryto finalize the permanent placement.

(3) A title IV–E agency will be determined to be in substantial conformity if its performance on:

(i) Each statewide/Tribal service area data indicator developed pursuant to paragraph (b)(4) of this section meets thenational standard described in paragraph (b)(5) of this section; and,

(ii) Each outcome listed in paragraph (b)(1) of this section is rated as “substantially achieved” in 95 percent of the casesexamined during the on-site review (90 percent of the cases for an initial review). Information from various sources (caserecords, interviews) will be examined for each outcome and a determination made as to the degree to which each outcomehas been achieved for each case reviewed.

(4) The Secretary may, using AFCARS and NCANDS, develop statewide/Tribal service area data indicators for each ofthe specific outcomes described in paragraph (b)(1) of this section for use in determining substantial conformity. TheSecretary may add, amend, or suspend any such statewide/Tribal service area data indicator(s) when appropriate. To theextent practical and feasible, the statewide/Tribal service area data indicators will be consistent with those developed inaccordance with section 203 of the Adoption and Safe Families Act of 1997 (Pub.L. 105–89).

(5) The initial national standards for the statewide data indicators described in paragraph (b)(4) of this section will be basedon the 75th percentile of all State performance for that indicator, as reported in AFCARS or NCANDS. The Secretary mayadjust these national standards if appropriate. The initial national standard will be set using the following data sources:

(i) The 1997 and 1998 submissions to NCANDS (or the most recent and complete 2 years available), for those statewidedata indicators associated with the safety outcomes; and,

(ii) The 1998b, 1999c, and 2000a submissions to AFCARS (or the most recent and complete report periods available), forthose statewide data indicators associated with the permanency outcomes.

(c) Criteria related to title IV–E agency capacity to deliver services leading to improved outcomes for children and families. Inaddition to the criteria related to outcomes contained in paragraph (b) of this section, the title IV–E agency also must satisfycriteria related to the delivery of services. Based on information from the assessment and onsite review, the title IV–E agencymust meet the following criteria for each systemic factor in paragraphs (c)(2) through (c)(7) of this section to be considered insubstantial conformity: All of the plan requirements associated with the systemic factor must be in place, and no more than oneof the plan requirements fails to function as described in paragraphs (c)(2) through (c)(7) of this section. The systemic factor inparagraph (c)(1) of this section is rated on the basis of only one plan requirement. To be considered in substantial conformity,the plan requirement associated with statewide/Tribal information system capacity must be both in place and functioning asdescribed in the requirement. ACF will use a rating scale to make the determinations of substantial conformity. The systemicfactors under review are:

(1) Statewide/Tribal information system: The State/Tribal title IV–E agency is operating a statewide/Tribal informationsystem that, at a minimum, can readily identify the status, demographic characteristics, location, and goals for the

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placement of every child who is (or within the immediately preceding 12 months, has been) in foster care (section (422)(b)(8)(A)(i) of the Act);

(2) Case review system: The title IV–E agency has procedures in place that:

(i) Provide, for each child, a written case plan to be developed jointly with the child's parent(s) that includes provisions: forplacing the child in the least restrictive, most family-like placement appropriate to his/her needs, and in close proximityto the parents' home where such placement is in the child's best interests; for visits with a child placed out of State/Tribalservice area at least every 12 months by a caseworker of the agency or of the agency in the State/Tribal service area wherethe child is placed; and for documentation of the steps taken to make and finalize an adoptive or other permanent placementwhen the child cannot return home (sections 422(b)(8)(A)(ii), 471(a)(16) and 475(5)(A) of the Act);

(ii) Provide for periodic review of the status of each child no less frequently than once every six months by either a courtor by administrative review (sections 422(b)(8)(A)(ii), 471(a)(16) and 475(5)(B) of the Act);

(iii) Assure that each child in foster care under the supervision of the title IV–E agency has a permanency hearing in afamily or juvenile court or another court of competent jurisdiction (including a Tribal court), or by an administrative bodyappointed or approved by the court, which is not a part of or under the supervision or direction of the title IV–E agency,no later than 12 months from the date the child entered foster care (and not less frequently than every 12 months thereafterduring the continuation of foster care) (sections 422(b)(8)(A)(ii), 471(a)(16) and 475(5)(C) of the Act);

(iv) Provide a process for termination of parental rights proceedings in accordance with sections 422(b)(8)(A)(ii), 475(5)(E) and (F) of the Act; and,

(v) Provide foster parents, preadoptive parents, and relative caregivers of children in foster care with notice of and a rightto be heard in permanency hearings and six-month periodic reviews held with respect to the child (sections 422(b)(8)(A)(ii), 475(5)(G) of the Act, and 45 CFR 1356.21(o)).

(3) Quality assurance system: The title IV–E agency has developed and implemented standards to ensure that children infoster care placements are provided quality services that protect the safety and health of the children (section 471(a)(22))and is operating an identifiable quality assurance system (45 CFR 1357.15(u)) as described in the CFSP that:

(i) Is in place in the jurisdictions within the State/Tribal service area where services included in the CFSP are provided;

(ii) Is able to evaluate the adequacy and quality of services provided under the CFSP;

(iii) Is able to identify the strengths and needs of the service delivery system it evaluates;

(iv) Provides reports to agency administrators on the quality of services evaluated and needs for improvement; and

(v) Evaluates measures implemented to address identified problems.

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Credits[65 FR 4076, 4078, Jan. 25, 2000; 66 FR 58675, Nov. 23, 2001; 77 FR 928, Jan. 6, 2012]

SOURCE: 57 FR 30429, July 9, 1992; 58 FR 67924, Dec. 22, 1993; 61 FR 58653, Nov. 18, 1996, unless otherwise noted.

AUTHORITY: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42 U.S.C. 1302.



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§ 1357.15 Comprehensive child and family services plan..., 45 C.F.R. § 1357.15



Subtitle B. Regulations Relating to Public WelfareChapter XIII. Office of Human Development Services, Department of Health and Human Services

Subchapter G. The Administration on Children, Youth and Families, Foster Care MaintenancePayments, Adoption Assistance, and Child and Family Services (Refs & Annos)

Part 1357. Requirements Applicable to Title IV–B (Refs & Annos)

45 C.F.R. § 1357.15

§ 1357.15 Comprehensive child and family services plan requirements.

Currentness

(a) Scope.

(1) The CFSP provides an opportunity to lay the groundwork for a system of coordinated, integrated, culturally relevantfamily focused services. This section describes the requirements for the development, implementation and phase-in of thefive-year comprehensive child and family services plan (CFSP). The State's CFSP must meet the requirements of both ofthe following programs. The Indian Tribe's CFSP must meet the requirements of one or both of the following programsdepending on the Tribe's eligibility:

(i) Child welfare services under title IV–B, subpart 1; and

(ii) Family preservation and family support services under title IV–B, subpart 2.

(2) For States only, the CFSP also must contain information on the following programs:

(i) The independent living program under title IV–E, section 477 of the Act; and

(ii) The Child Abuse and Neglect State grant program (known as the Basic State Grant) under the Child Abuse Preventionand Treatment Act (CAPTA) (42 U.S.C. 5101 et. seq.).

(3) States must meet all requirements of this section except those that apply only to Indian Tribes. Indian Tribes must meetthe requirements of this section only as specified.

(4) States and eligible Indian Tribes have the option to phase-in the requirements for a consolidated CFSP. The consolidatedCFSP requirements must be in place by June 30, 1997 and meet the requirements of 45 CFR 1357.16.

(b) Eligibility for funds.

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(p) Services in relation to service principles. The CFSP must describe how the child and family services to be provided aredesigned to assure the safety and protection of children as well as the preservation and support of families, and how they areor will be designed to be consistent with the other service principles in 45 CFR 1355.25.

(q) Services in relation to permanency planning. For States administering both title IV–B programs (subparts 1 and 2), theCFSP must explain how these services will help meet the permanency provisions for children and families in sections 422(b)(9) and 471 of the Act (e.g., preplacement preventive services, reunification services, independent living services.) The CFSPmust describe the arrangements, jointly developed with the Indian Tribes within its borders, made for the provision of the childwelfare services and protections in section 422(b)(9) to Indian children under both State and Tribal jurisdiction.

(r) Decision-making process: selection of family support programs for funding. The State's CFSP must include an explanationof how agencies and organizations were selected for funding to provide family support services and how these agencies andorganizations meet the requirement that family support services be community-based.

(s) Significant portion of funds used for family support and family preservation services. With each fiscal year's budget request,each State must indicate the specific percentage of family preservation and family support funds (title IV–B, subpart 2) that theState will expend for community-based family support and for family preservation services, and the rationale for the decision.The State must have an especially strong rationale if the request for either percentage is below 25 percent. It must also includean explanation of how this distribution was reached and why it meets the requirements that a “significant portion” of the servicefunds must be spent for each service. Examples of important considerations might include the nature of the planning effortsthat led to the decision, the level of existing State effort in each area, and the resulting need for new or expanded services.

(t) Staff training, technical assistance, and evaluation.

(1) The State's CFSP must include a staff development and training plan in support of the goals and objectives in theCFSP which addresses both of the title IV–B programs covered by the plan. This training plan also must be combined withthe training plan under title IV–E as required by 45 CFR 1356.60(b)(2). Training must be an on-going activity and mustinclude content from various disciplines and knowledge bases relevant to child and family services policies, programsand practices. Training content must also support the cross-system coordination consultation basic to the developmentof the CFSP.

(2) The State's CFSP must describe the technical assistance activities that will be undertaken in support of the goals andobjectives in the plan.

(3) The State's CFSP must describe any evaluation and research activities underway or planned with which the State agencyis involved or participating and which are related to the goals and objectives in the plan.

(u) Quality assurance. The State must include in the CFSP a description of the quality assurance system it will use to regularlyassess the quality of services under the CFSP and assure that there will be measures to address identified problems.

(v) Distribution of the CFSP and the annual progress and services report. The CFSP must include a description of how the Stateand the Indian Tribe will make available to interested parties the CFSP and the Annual Progress and Services Report. (See

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45 CFR 1355.21(c) and 45 CFR 1357.16(d)). State agencies and Indian Tribal organizations within the State must exchangecopies of their CFSPs and their annual services reports.

(This requirement has been approved by the Office of Management and Budget under OMB Control Number 0980–0047. Inaccordance with the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required torespond to, a collection of information unless it displays a currently valid OMB control number.)

Credits[48 FR 23117, May 23, 1983; 58 FR 67938, Dec. 22, 1993; 59 FR 13535, March 22, 1994; 61 FR 58656, Nov. 18, 1996; 66FR 58677, Nov. 23, 2001]

SOURCE: 58 FR 67938, Dec. 22, 1993; 61 FR 58653, Nov. 18, 1996, unless otherwise noted.

AUTHORITY: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42 U.S.C. 1302.




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§ 11. Comprehensive plan for response to child abuse and..., MA ST 18C § 11


Massachusetts General Laws AnnotatedPart I. Administration of the Government (Ch. 1-182)

Title II. Executive and Administrative Officers of the Commonwealth (Ch. 6-28A)Chapter 18C. Office of the Child Advocate (Refs & Annos)

M.G.L.A. 18C § 11

§ 11. Comprehensive plan for response to child abuse and neglect; advice of experts; contents


(a) The child advocate, in consultation with the advisory board and the interagency child welfare task force established bysection 215 of chapter 6, shall formulate a comprehensive plan, with periodic benchmarks and cost estimates, to recommend acoordinated, system-wide response to child abuse and neglect, including related mental health, substance abuse and domesticviolence issues. The comprehensive plan shall look forward 5 years or more, shall be updated annually to plan for the ensuing5-year period, shall assess previous efforts and, if appropriate, shall include legislative and regulatory recommendations, suchas changes to the issues itemized in the comprehensive plan.

(b) The child advocate may seek advice broadly from individuals with expertise in child welfare in formulating the plan andconsult with, social workers of the department, pediatricians, child psychiatrists, early childhood education and adolescentbehavior specialists, parents of children who have received services from the commonwealth, and persons who, as children,were clients of the department.

(c) The comprehensive plan shall be filed annually with the governor, the clerks of the senate and the house, the senate andhouse committees on ways and means, and the joint committee on children, families and persons with disabilities.

(d) The comprehensive plan shall examine the status of and address the following issues:--

(1) racial disproportionality and disparity of the department's client population, including the effectiveness of reforms designedto address overrepresentation of children of color within that population;

(2) the needs of families whose children are truant, runaways, or whose conduct interferes with their parent's ability to adequatelycare for and protect them. The plan shall propose a system of community-based programs to assist these children and familiesby providing services on a continuum of increasing intensity with the goal of keeping children out of the juvenile justice andchild protection systems. The plan shall examine: (i) the existing complex system of services available from multiple public andprivate agencies; (ii) the differences in service delivery throughout the state; (iii) the need for immediate response to stabilize afamily in crisis and to connect the family to services in their own community; and (iv) the collection and analysis of informationneeded to evaluate and identify gaps in service to such children and families throughout the commonwealth;

(3) mandated reporting, including: (i) the quality and quantity of training provided to mandated reporters; (ii) standards fortraining based on best practices for recognizing and reporting suspected child abuse and neglect; and (iii) the use of thefollowing as forums for training mandated reporters: online programs, training offered by state agencies, and existing programs

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of professional training such as those required for initial licensure or certification and relicensure or recertification, continuingeducation programs or in-service training;

(4) screening of child abuse and neglect reports, including: (i) centralizing the reporting and screening processes; (ii) a single,24-hour, toll-free telephone number for all oral reports, a single fax number or mailing address for all written reports andinternet-based filing of reports; (iii) multiple reports filed about a particular child or family; (iv) a determination of when andunder what conditions reports may have been inappropriately screened out and the impact of those decisions; and (v) direct,electronic access to the National Crime Information Center for criminal history records and warrants;

(5) child protection teams, which are multidisciplinary teams that provide specialized medical examinations of children whopresent signs of abuse or neglect and that include pediatricians or pediatric nurses and psychologists or social workers whohave been trained to recognize child abuse and neglect, including statewide expansion to regional hospitals, all hospitals withemergency rooms and all pediatric care hospitals;

(6) the shortage of experts in the commonwealth who specialize in the prevention, diagnosis and treatment of abused or neglectedchildren, with recommendations to train pediatricians and pediatric nurse practitioners to become clinical experts who areknowledgeable and competent in all areas of child abuse and neglect, including: the identification, assessment, and treatment ofphysical abuse, sexual abuse, neglect, emotional abuse and neglect and factitious illness by proxy; multi-disciplinary trainingwith law enforcement, state and local agencies and child advocacy centers; collection of forensic evidence; court testimony;research; and child advocacy;

(7) family engagement model or other nationally recognized models to strengthen child welfare practice, including: (i) theevaluation of the model and its use of differential response and risk assessment tools to determine how effectively findings ofabuse or neglect are made; (ii) the cost to implement the model state-wide; (iii) the combination of departmental functions suchthat an individual social worker investigates, assesses and provides ongoing case management, particularly as that combinationimpacts incidents requiring specialized investigatory skills; (iv) delays in the fair hearing process; and (v) time limits allowedfor screenings, investigations and assessments;

(8) social worker caseloads and teaming, including: (i) the effects of teaming on caseloads and of caseloads on teaming; (ii)the cost of state-wide adoption of various standard caseload ratios; (iii) a potential multi-year plan to reduce caseloads; and (iv)duties handled by social workers that may be more affordably and efficiently handled by other staff;

(9) law enforcement involvement, including: (i) how effectively the department and law enforcement collaborate and whetherthere is room for improvement or coordination of resources; (ii) protocols for mandatory reporting of certain abuse or neglect tolocal law enforcement and district attorneys and (iii) potential alignment with efforts to prevent or prosecute domestic violenceand with the procedures used in the investigation of sexual abuse, such as the sexual abuse intervention network and the sexualassault nurse examiners program;

(10) schools of social work, including: (i) how effectively social work and related degree programs teach child welfare practice;(ii) greater cooperation between the department and higher education to study child welfare issues; (iii) the capacity of publicand private schools to meet increased demand for social work and related degrees, including concentrations in child welfare;and (iv) a timeline for inclusion of child welfare concentrations in bachelor's and master's degree programs at public institutionsof higher education;

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(11) social worker qualifications, including the infrastructure needed to support a more qualified workforce, such as fullimplementation of proposed programs at the child welfare institute and the transferability of certificate coursework to degree-granting programs;

(12) confidentiality, including research of legal and ethical considerations to be addressed if information relative to cases ofchild abuse and neglect is shared between the office and other executive agencies;

(13) health service needs of the department's client population and health consultation needs of the department, including: (i) theneed for physical and behavioral health services and consultation, including those related to mental health and substance abusetreatment; (ii) coordination and consultation among executive agencies; (iii) proposed best-practice models for more effectiveclient behavioral health services; and (iv) oversight and peer review of the safety and effectiveness of the use of psychotropicdrugs by children involved with executive agencies;

(14) critiques of the department, including: (i) potential alignment of a internal or external audit unit with the department'scontinuous quality improvement and quality service review initiatives; and (ii) dissemination of the findings of these critiquesto policy makers within and outside of the department;

(15) criminal offender record information reviews, including: (i) the use of these reviews in out-of-home, kinship and fosterplacements and (ii) areas for improved efficiency and equality;

(16) permanency planning for those who, due to their age, are transitioning out of the child welfare system to assist with healthcare, housing, higher education, long-term interpersonal connections and other needs for independent living;

(17) examine the frequency of transitions in the treatment plans and living placements of foster children;

(18) provide an analysis of the administrative and cost requirements and recommendations to create a personal needs andindividual development account for each child in foster care over the age of 14;

(19) review the process of adopting children in foster care and recommend streamlined procedures to reduce the time requiredto complete the adoption process;

(20) the impact on child welfare efforts of the early and periodic screening, diagnostic and treatment services provision andreasonable promptness provision of the federal Medicaid law, 42 U.S.C. 1396a(a)(10)(A),-(a)(43), 1396d(r)(5),-(a)(4)(B), and1396a(a)(8)(2005), respectively;

(21) oversight provided by MassHealth and its contractors of medical and behavioral health expenditures made on behalf ofthe department's client population;

(22) federal funding available for child welfare purposes and factors affecting that funding, including: (i) the Title IV-Esaturation rate for foster children, (ii) the determination of AFDC status for the non-TANF population, and (iii) expeditedjudicial determinations made within the required time frames;

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(23) an estimate of the expenditure necessary to implement an annual adjustment to the daily rate for maintenance payments tofoster care, adoptive and guardianship families, to provide care so as to meet the rate recommended periodically by the UnitedStates Department of Agriculture; and

(24) the effectiveness of the state's child abuse laws as they relate to defining, prohibiting, preventing and reporting cases ofemotional abuse of children, including recommendations to increase public and professional education and awareness of thesymptoms and impact of emotional abuse.

CreditsAdded by St.2008, c. 176, § 46, eff. July 8, 2008.

M.G.L.A. 18C § 11, MA ST 18C § 11Current through Chapter 43 of the 2014 2nd Annual Session


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§ 23. Responsibility of department to provide foster care for..., MA ST 119 § 23



Title XVII. Public Welfare (Ch. 115-123B)Chapter 119. Protection and Care of Children, and Proceedings Against Them (Refs & Annos)

M.G.L.A. 119 § 23

§ 23. Responsibility of department to provide foster care for children; placementwith relatives; funeral expenses; child profile form; extension of support of child

until 22 years of age; assignment of support rights; assistance to foster care families

Effective: January 3, 2011Currentness

(a) The department shall have the responsibility, including financial responsibility, for providing foster care for children throughits own resources or by use of appropriate voluntary agencies, according to the rules and regulations of the department, in thefollowing instances:--

(1) If a child, parent, guardian, or any person acting on behalf of a child, applies for foster care, the department may accept a childwho, in the judgment of the department, is in need of foster care. Such acceptance shall entail no abrogation of parental rightsor responsibilities, but the department may accept from parents a temporary delegation of certain rights and responsibilitiesnecessary to provide the foster care for a period of time under conditions agreed upon by both and terminable by either. Ifthe department determines that continued placement beyond 6 months is required for reasons unrelated to parental unfitnessand the parent consents to continued placement, the department may file a petition for care and responsibility in the probatecourt on behalf of a child accepted into foster care. At the initial hearing on the petition, the court shall determine whethercontinued placement with the department is in the child's best interests and shall issue its determination, including its rationale,in written form. The allowance of the petition shall not abrogate a parent's right to make decisions on behalf of the child, butthe department may accept from the parent a temporary delegation of certain rights and responsibilities necessary to continueto provide foster care for the child under conditions agreed upon by both and terminable by either. Notwithstanding any generalor special law to the contrary, a permanency hearing shall be held within 60 days of the transfer of responsibility by order ofthe probate court or within 12 months of initial placement into foster care with the department, whichever date is later. Thehearing shall be conducted as provided in section 29B.

(2) If a parent or parents apply for voluntary surrender of custody of a child for purposes of giving consent to adoption, thedepartment may accept the child following the procedure described in clause (1).

(3) If a child is without proper guardianship due to death, unavailability, incapacity or unfitness of a parent or guardian or withthe consent of a parent or parents, the department may seek, and shall accept, an order of the probate court granting responsibilityfor the child to the department. Such responsibility shall include the right to: (i) determine the child's abode, medical care andeducation; (ii) control visits to the child; (iii) consent to enlistments, marriages and other contracts requiring parental consent;and (iv) consent to adoption only when it is expressly included in an order of the court. In making an order, the probate courtshall consider section 29C and shall make the written certification and determinations required by said section 29C. If a childis in the care of the department of mental health or the department of developmental services, the responsibility for the child asdescribed in this section and all rights therein contained shall continue in the department. If a person with mental retardation whohas been declared mentally incompetent was the responsibility of the department prior to reaching the age of 18, the departmentshall continue to exercise responsibility for that person until that person is declared to be no longer legally incompetent.

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(4) The department shall accept on commitment from the juvenile court any child declared in need of foster care under section26 or declared to be a child in need of services under section 39G.

(5) Any child who is left in any place and who is seemingly without a parent or legal guardian available shall be immediatelyreported to the department, which shall proceed to arrange care for that child temporarily and shall forthwith cause search tobe made for that child's parent or guardian. If a parent or guardian cannot be located or is unable or refuses to make suitableprovision for the child, the department shall make such lawful provision it deems in the best interest of that child as providedunder this chapter.

(6) If the department has in its care a child whose parent or parents have consented to the child's adoption and the department hasbeen unable to place that child in an adoptive home within 60 days of receipt of the consent, the department shall so notify allchildren's foster care agencies in the commonwealth licensed to place children for adoption. The notice shall request that eachsuch agency attempt to find an adoptive home for such child. If 1 of the agencies locates an adoptive home for this child, thedepartment shall cooperate with the agency in the placement of the child in this home and in the supervision of the placementduring the 1 year waiting period. Any person in whose home a child has been placed by the department shall also be informedby the department if the child has become eligible for adoption, and this person may request consideration as a prospectiveadoptive parent.

(7) A temporary shelter care facility program or a group care facility, licensed under chapter 15D, may provide temporary shelterfor a 72-hour period to a child without parental consent, if the child's welfare would be endangered if such shelter were notimmediately provided. At the expiration of the 72-hour period, the licensee shall: (i) secure the consent of a parent or guardianto continued custody and care; (ii) refer the child to the department for custody and care; or (iii) refuse to provide continuedcare and custody to the child.

(b) The department shall develop guidelines and standards for the placement of children in foster care. The guidelines andstandards shall be reviewed by the executive office of health and human services and the child advocate.

(c) Whenever the department places a child in foster care, the department shall immediately commence a search to locate anyrelative of the child or other adult person who has played a significant positive role in that child's life in order to determinewhether the child may appropriately be placed with that relative or person if, in the judgment of the department, that placementwould be in the best interest of the child.

The department shall also seek to identify any minor sibling or half-sibling of the child and attempt to place these children inthe same foster family if, in the judgment of the department, that placement would be in the best interests of the children.

(d) The department may pay to a funeral establishment a sum not to exceed $1,100 for the funeral and final disposition of achild in its care if there are insufficient resources to pay for the cost of such funeral and final disposition. The commonwealthshall have the right of reimbursement from whatever resources may exist in the estate of the child.

(e) If a child is placed in or transferred to a foster home, a completed child profile form shall precede or accompany the childto the foster home. In the case of an emergency placement, the department, the department of youth services, the department ofmental health, other departments of the commonwealth responsible for the placement of foster children, or a placement agency

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shall immediately provide a brief verbal or written statement describing the child's outstanding problem behaviors and mentaland emotional problems and shall provide the child profile form within 10 days to the foster parents.

The department shall develop a child profile form to be used by all other departments of the commonwealth or placementagencies that shall contain the child profile and any other relevant information necessary to the care, well-being, protectionand parenting of the child by the foster parents, including, but not be limited to: (i) a history of the child's previous placementsand reasons for placement changes; (ii) a history of the child's problem behaviors and mental and emotional problems; (iii)educational status and school related problem behaviors; and (iv) any other necessary psychological, educational, medical orhealth information.

The child profile form shall immediately be prepared by the department of the commonwealth which is granted care and custodyof the child at the time such care and custody is granted.

(f) The department shall offer to continue its responsibility to any young adult who is under the custody, care, or responsibilityof the department including, but not limited to, those persons who meet any of the criteria set forth in 42 USC § 675(8)(B)(iv): (i)for the purposes of specific educational or rehabilitative programs, or (ii) to promote and support that person in fully developingand fulfilling that person's potential to be a participating citizen of the commonwealth under conditions agreed upon by both thedepartment and that person. The department's continued responsibility for such persons is contingent upon the express writtenconsent of the person or their guardian unless: (i) before reaching the age of 18, the person had an intellectual disability and wasdeclared mentally incompetent under clause (3) of subsection (a) while under the responsibility of the department; or (ii) theperson is under the responsibility of the department pursuant to section 5-305 of chapter 190B. The purposes and conditions ofsuch responsibility may be reviewed and revised or terminated by either the person or the department; provided, however, thatwithin 90 days before the termination of such responsibility, the department shall provide the person with assistance and supportin developing a transition plan which fulfills the requirements of 42 USC § 675(5)(H). If after termination the person requeststhat the department renew its responsibility therefor, the department shall make every reasonable attempt to provide a programof support which is acceptable to the person and which permits the department to renew its responsibility; provided, however,that the department may require the person to meet 1 of the criteria set forth in 42 USC § 675(8)(B)(iv). If the department renewsits responsibility, all other provisions of this subsection shall apply. The department shall report annually to the child advocate,the senate and house chairs of the joint committee on children, families and persons with disabilities and the chairs of the senateand house committees on ways and means on the number of persons it serves and declines to serve under this subsection.

(g) The department shall obtain and provide to the IV-D agency, as set forth in chapter 119A, an assignment of support rightson behalf of each child receiving foster care maintenance payments under Title IV, Part E, of the Social Security Act. Thedepartment shall be subrogated to the rights of each such child and shall obtain and provide to the IV-D agency informationthat may be reasonably necessary to enforce the department's right including, but not limited to, the following information:the child's name, date of birth, place of birth, Social Security number, address and benefit level and, if known, each parent'sname, date of birth, place of birth, Social Security number, most recent address and most recent employer. The departmentshall immediately notify the IV-D agency when a child whose rights to support are subrogated no longer receives foster caremaintenance payments under said Title IV, Part E, of the Social Security Act.

(h) The department shall, subject to appropriation, provide assistance to foster care families which includes maintenancepayments at the daily rate recommended and periodically adjusted by the United States Department of Agriculture. Thedepartment shall periodically review the level of assistance including maintenance payments provided to adoptive andguardianship families and may, subject to appropriation, and consistent with federal law and policy, adjust such assistance aswarranted by the financial circumstances of the family, the needs of the child or the rate of inflation.

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The department shall report annually on September 1, to the senate and house committees on ways and means and the jointcommittee on children, families and persons with disabilities on the amounts expended to provide to foster care, adoptive andguardianship families financial and other assistance including, but not limited to, payments to provide for the care of children.

(i) The department, in consultation with the executive office of public safety and security, shall work with the department ofstate police and municipal police departments to ensure that adequate efforts are being made to identify and to provide for theimmediate protection, care and custody of the minor children of a person arrested or placed in custody by police officers inthe performance of their official duties.

CreditsAdded by St.1954, c. 646, § 1. Amended by St.1960, c. 325; St.1962, c. 535; St.1969, c. 859, § 7; St.1970, c. 825; St.1970, c.888, § 5; St.1972, c. 731, § 7; St.1973, c. 433; St.1973, c. 925, § 40; St.1973, c. 1073, § 4; St.1974, c. 682, § 4; St.1975, c. 276,§§ 1, 2; St.1980, c. 478; St.1983, c. 633, § 7; St.1986, c. 310, § 10; St.1986, c. 557, § 113; St.1986, c. 599, § 36; St.1988, c.128; St.1989, c. 341, § 72; St.1991, c. 492; St.1992, c. 379, § 7; St.1993, c. 486, §§ 1, 2; St.1997, c. 43, § 98; St.1999, c. 3, §5; St.2002, c. 371, § 1; St.2005, c. 163, § 40, eff. Dec. 8, 2005; St.2008, c. 176, § 83, eff. July 8, 2008; St.2008, c. 451, § 82,eff. June 30, 2009; St.2010, c. 131, § 86, eff. July 1, 2010; St.2010, c. 359, § 19, eff. Jan. 3, 2011.


M.G.L.A. 119 § 23, MA ST 119 § 23Current through Chapter 43 of the 2014 2nd Annual Session


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§ 26B. Grandparent visitation; sibling visitation; appeal of..., MA ST 119 § 26B



Title XVII. Public Welfare (Ch. 115-123B)Chapter 119. Protection and Care of Children, and Proceedings Against Them (Refs & Annos)

M.G.L.A. 119 § 26B

§ 26B. Grandparent visitation; sibling visitation; appeal of decision to deny visitation


(a) Whenever a child is placed in family foster care, the court and the department shall ensure that a grandparent of a childwho is in the department's care or is the subject of a petition under this chapter shall, upon that grandparent's request, haveaccess to reasonable visitation and that the department establish a schedule for that visitation, unless it is determined by thecourt or the department that grandparent visitation is not in the child's best interests. In determining the best interests of thechild, the court or the department shall consider the goal of the service plan and the relationship between the grandparent andthe child's parents or legal guardian. Upon recommendation by the department or on its own accord, the court may establishreasonable conditions governing grandparent visitation, including requiring that the grandparent be restrained from revealingthe whereabouts of the child's placement.

A grandparent of a child who is placed with the department voluntarily under clause (1) of subsection (a) of section 23 or placedin the custody of the department under an adoption surrender under section 2 of chapter 210, who is denied grandparent visitationby the department, may appeal through the department's fair hearing process. A grandparent may appeal the decision reachedthrough the department's fair hearing process by filing a petition in the probate and family court for grandparent visitation. Thatgrandparent shall have the right to court review by trial de novo.

A grandparent of a child who is the subject of a petition under this chapter and placed in the custody of the department may filea petition for visitation in the court which has committed the child to the custody of the department.

(b) The court or the department shall, whenever reasonable and practical and based upon a determination of the best interestsof the child, ensure that children placed in foster care shall have access to and visitation with siblings in other foster or pre-adoptive homes or in the homes of parents or extended family members throughout the period of placement in the care andcustody of the department, or after such placements, if the children or their siblings are separated through adoption or long-term or short-term placements in foster care.

The court or the department shall determine, at the time of the initial placements wherein children and their siblings are separatedthrough placements in foster, pre-adoptive or adoptive care, that sibling visitation rights be implemented through a schedule ofvisitations or supervised visitations, to be arranged and monitored through the appropriate public or private agency, and withthe participation of the foster, pre-adoptive or adoptive parents, or extended family members, and the child, if reasonable, andother parties who are relevant to the preservation of sibling relationships and visitation rights.

A child in foster care or sibling of a child placed voluntarily under clause (1) of subsection (a) of section 23 or under anadoption surrender under section 2 of chapter 210, who are denied visitation rights by the department, may appeal through thedepartment's fair hearing process. The child or sibling may appeal the decision reached through the department's fair hearingprocess by filing a petition in the probate and family court for visitation. That child or sibling shall have the right to courtreview by trial de novo.

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§ 26B. Grandparent visitation; sibling visitation; appeal of..., MA ST 119 § 26B


For children in the custody of the department pursuant to petition under this chapter, a child, sibling, parent, legal guardian orthe department may file a petition for sibling visitation in the court committing the child to the custody of the department.

Periodic reviews shall evaluate the effectiveness and appropriateness of sibling visitations.

Any child over 12 years of age may request visitation with siblings who have been separated and placed in care or have beenadopted in a foster or adoptive home other than where the child resides.

(c) A parent: (i) against whom a decree to dispense with consent to adoption has been entered under clause 4 of subsection (b)of section 26 or section 3 of chapter 210 or (ii) who has signed a voluntary adoption surrender under section 2 of chapter 210shall not have the rights provided under this section as to the child who is the subject of that decree or surrender.

(d) A child, parent, guardian, grandparent or the department may appeal a decision or order of the trial court to the appeals courtunder this section if such person or the department is a party thereto. The claim of appeal shall be filed in the office of the clerkor register of the trial court within 30 days following the court's decision or order. Thereafter, the appeal shall be governed bythe Massachusetts Rules of Appellate Procedure.

CreditsAdded by St.2008, c. 176, § 84, eff. July 8, 2008.


M.G.L.A. 119 § 26B, MA ST 119 § 26BCurrent through Chapter 43 of the 2014 2nd Annual Session


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THE 188TH GENERAL COURT OF

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2008

Chapter 176 AN ACT PROTECTING CHILDREN IN THE CARE OF THECOMMONWEALTH.

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Whereas, The deferred operation of this act would tend to defeat its purpose, which is to

protect forthwith children in the care of the commonwealth, therefore it is hereby declared to

be an emergency law, necessary for the immediate preservation of the public safety.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by

the authority of the same as follows:

SECTION 1. Chapter 3 of the General Laws is hereby amended by adding the following

section:-

Section 69. (a) There shall be a permanent commission on the status of grandparents raising

grandchildren which shall consist of 11 persons as follows: 3 persons appointed by the

secretary of elder affairs, 1 of whom shall be from the secretary’s office; 1 person appointed

by the commissioner of children and families, who shall be from the department; 2 persons

appointed by the governor; 1 person appointed by the speaker of the house of

representatives; 1 person appointed by the house minority leader; 1 person appointed by the

president of the senate; 1 person appointed by the senate minority leader; and 1 person

appointed by the attorney general. Members of the commission shall be citizens of the

commonwealth who have demonstrated a commitment to the rearing of grandchildren by

grandparents.

(b) Members shall serve terms of 2 years. Vacancies in the membership of the commission

shall be filled by the original appointing authority for the balance of the unexpired term.

(c) The commission shall elect from among its members a chair, a vice chair, a treasurer and

any other officers it deems necessary.

(d) The members of the commission shall receive no compensation for their services, but shall

be reimbursed for any usual and customary expenses incurred in the performance of their

duties.

(e) The commission shall be a resource to the commonwealth on issues affecting

grandparents raising grandchildren in the commonwealth. In furtherance of that responsibility,

the commission shall: (1) foster unity among grandparents raising grandchildren communities

and organizations in the commonwealth by promoting cooperation and sharing of information

and encouraging collaboration and joint activities; (2) serve as a liaison between government

Session Law

Massachusetts Laws Bills State Budget People Committees Educate & Engage Events MyLegislature

Session Laws: Chapter 176 of the Acts of 2008 https://malegislature.gov/Laws/SessionLaws/Acts/2008/Chapter176

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SECTION 119. Section 3 of said chapter 210, as so appearing, is hereby amended by striking

out, in lines 7 and 55, the words “social services” and inserting in place thereof, in each

instance, the following words:- children and families.


out, in line 13, the words “social services” and inserting in place thereof the following words:-

children and families.

SECTION 121. Section 4A of said chapter 210, as so appearing, is hereby amended by striking



SECTION 122. Section 5A of said chapter 210, as so appearing, is hereby amended by striking

out, in lines 2 and 3, 39 and 40 and in line 52, the words “social services” and inserting in

place thereof, in each instance, the following words:- children and families.

SECTION 123. Section 5E of said chapter 210, as so appearing, is hereby amended by striking






SECTION 125. Section 6C of said chapter 210, as so appearing, is hereby amended by striking

out, in lines 35 and 36, the words “social services” and inserting in place thereof the following

words:- children and families.

SECTION 126. Section 11A of said chapter 210, as so appearing, is hereby amended by

striking out, in line 2, the words “social services” and inserting in place thereof the following


SECTION 127. Section 5 of chapter 258C of the General Laws, as so appearing, is hereby

amended by striking out, in lines 13 and 14, the words “departments of social services and

public welfare” and inserting in place thereof the following words:- department of children and

families and the department of transitional assistance.

SECTION 128. Section 3 of chapter 273 of the General Laws, as so appearing, is hereby

amended by striking out, in line 5, the words “social services” and inserting in place thereof

the following words:- children and families.

SECTION 129. Section 18A of said chapter 273, as so appearing, is hereby amended by

striking out, in line 26, the words “social services” and inserting in place thereof the following


SECTION 130. The initial appointments for members of the commission on the status of

grandparents raising grandchildren established by section 69 of chapter 3 of the General Laws

shall be made on or before March 1, 2009.

SECTION 131. The policies and procedures relative to minors whose parents or guardians are

arrested or placed in custody by police officers required by clause (9) of section 18¾ of

chapter 6A of the General Laws shall developed on or before December 31, 2008.

SECTION 132. Notwithstanding section 3 of chapter 18C of the General Laws, the child

advocate appointed under Executive Order No. 494 shall continue to serve in that capacity at

the pleasure of the governor.

SECTION 133. Notwithstanding section 10 of chapter 18C of the General Laws, the first annual

report filed by the child advocate under said section 10 of said chapter 18C shall be filed on or

before June 30, 2009.

SECTION 134. Notwithstanding subsection (c) of section 11 of chapter 18C of the General


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Laws, the first comprehensive plan filed by the child advocate under said section 11 of said

chapter 18C shall be filed on or before June 30, 2010.

SECTION 135. (a) Notwithstanding section 51B of chapter 119 of the General Laws or any

other general or special law to the contrary and consistent with any relevant collective

bargaining agreement, the department of children and families may establish a pilot program

of family engagement in child welfare practice. The department shall select 4 to 8 area offices

in which to implement the pilot program. Each office shall then be divided into a control group

and a differential response group, with each group using social worker teams based on

caseload standards recommended by the Child Welfare League of America, Inc.

(b) The differential response group shall use a local unified entry point for (i) requests for

voluntary services filed under section 23 of chapter 119 of the General Laws, (ii) court

referrals, including those for children in need of services filed under section 39E of said

chapter 119, and (iii) reports of suspected child abuse or neglect filed under section 51A of

said chapter 119.

Upon entry of any such request, referral or report, the department shall have a period of

initial engagement during which the request, referral or report shall be evaluated and a

differential response, if any, shall be determined; but if the department has reasonable cause

to believe the child’s health or safety is in immediate danger from abuse or neglect, the

department shall also view the child, conduct a safety assessment, and take any steps

necessary to ensure the safety of the child. A rapid initial engagement for the latter

circumstances shall commence within 2 hours and shall be completed within 36 hours; all

other initial engagements shall be completed within 3 business days. The department shall

determine whether the request, referral or report is appropriate for response and, if so, which

differential response is appropriate: a protective response, a support and stabilization

response or a community resource response.

A protective response shall be required if the department determines that the child has been

or is at risk of serious harm. The protective response shall be conducted pursuant to said

section 51B, except that the investigation shall be completed within 15 business days of the

differential response determination unless a waiver has been approved by the area director or

requested by law enforcement.

A support and stabilization response shall require department contact with the child’s family

within 2 business days of the differential response determination and an initial assessment of

the family within 30 business days of the determination. Such a response shall include at least

3 department visits with the child’s family and may include the immediate provision of

services.

A community resource response shall consist of providing information about and referral to

community-based services. Such a response shall not include an investigation or a family

assessment by the department.

After the completion of a protective response or a support and stabilization response and

based on a family assessment, the department may determine that sustained engagement

with the child’s family is necessary. During sustained engagement, family assessments shall

be conducted every 6 months until the department terminates its sustained engagement.

The differential response group shall use (i) evidence-based safety and risk assessment tools,

(ii) family assessments, (iii) resource and service planning activities, and (iv) culturally

competent staffing, resources and practices.

(c) The pilot program shall include an independent evaluation, including the impact on

children and families, the effect on racial disproportionality and disparity, the associated costs,


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any recommendations for statewide implementation, and shall survey children, families, and

staff involved with the pilot program.

(d) The department shall report the results of the evaluation and legislative recommendations,

if appropriate, no later than 1 year after pilot program is established. The report shall be filed

with the clerks of the house and the senate, the house and senate committees on ways and

means, the committee on children, families and persons with disabilities, the speaker of the

house, the president of the senate and the governor.

SECTION 136. The name of the department of social services is hereby changed to the

department of children and families.

SECTION 137. Section 22 shall take effect on July 1, 2008.

SECTION 138. Section 97 shall take effect on January 1, 2010.

SECTION 139. Section 96 shall take effect on July 1, 2010.

Approved July 8, 2008


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4.31: Time Frames for Completion of Investigation, 110 MA ADC 4.31


Code of Massachusetts Regulations CurrentnessTitle 110: Department of Children and Families

Chapter 4.00: Intake (Refs & Annos)

110 CMR 4.31

4.31: Time Frames for Completion of Investigation

(1) The investigation of all “emergency reports” shall commence within two hours of initial contact and shall be completedwithin five working days after the receipt of the report by the Department. The results of the investigation shall be in writing,transcribed onto a “51B” standard investigation form, as established by the Department.

(2) The investigation of all “non-emergency reports” shall commence within two working days of initial contact and shall becompleted within 15 working days following the receipt of the report by the Department. The results of the investigation shallbe in writing, transcribed onto a “51B” standard investigation form, as established by the Department.

Current through February 14, 2014, Register #1254

Mass. Regs. Code tit. 110, § 4.31, 110 MA ADC 4.31


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5.02: When Required, 110 MA ADC 5.02



Chapter 5.00: Assessment (Refs & Annos)

110 CMR 5.02

5.02: When Required

An assessment of a family's or individual's needs for services must be completed for each new case. For cases which werepreviously assessed, closed, and are re-opened, a new assessment is not required. However, an update of the assessment, inparticular a current evaluation of family functioning, must be completed.




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7.101: Out-of-home Placements, 110 MA ADC 7.101



Chapter 7.000: Services (Refs & Annos)

110 CMR 7.101

7.101: Out-of-home Placements

(1) All out-of-home placement decisions shall be made in the best interests of the child, based upon safety, well-being andpermanency of the child and the child's individual needs. Placement decisions should be made in a manner conducive topermanency planning and the safe and timely return of children to their homes or their placement into a new permanent setting.The following factors shall be taken into consideration:

(a) the least restrictive setting for the child;

(b) close proximity to the home of the child's family and/or the child's school;

(c) ability for frequent visits between child and his/her family;

(d) the child's individual needs including those related to his/her physical, mental, and emotional well-being and thecapacity of the prospective foster or pre-adoptive parents to meet those needs;

(e) a placement that can serve as the placement for any of the child's siblings in the Department's care or custody; and

(f) a mature child's choice of residence.

(2) The Department shall consider, consistent with the best interests of the child, the following placement resources in thefollowing order:

(a) placement with a kinship family;

(b) placement with a child-specific family;

(c) placement in a family foster care home where the child was previously place;

(d) placement in family foster care;

(e) placement in a shelter/short term program or group home;

(f) placement in community residential care.

Every reasonable effort should be made to place a child in accordance with 110 CMR 7.101(1) and (2).

(3) Whenever the Department places a child in foster care, the Department shall seek from the child's parents the names ofrelatives or other kin who may be available to become a foster placement for the child(ren). The Department shall also begin asearch for other relatives of the child or for other adult persons who have played a significant positive role in the child's life in

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7.101: Out-of-home Placements, 110 MA ADC 7.101


order to determine whether the child may appropriately be placed with a relative or person if, in the judgment of the department,that placement would be in the best interest of the child.

(4) The Department shall place a child with the child's full or half sibling(s) unless doing so would be contrary to the safety orwell-being of the child or sibling(s), or otherwise not in the child's best interest. If siblings are not placed together, reasonableefforts will be made to provide for visitation with siblings, unless such visitation would be harmful to the child or sibling.

(5) Within 30 days after the child is removed from the custody of the parent(s), the Department shall provide notice to the kinand other adults identified under 110 CMR 7.101(3), unless the kin or other adult could not be approved as a foster parent dueto known family or domestic violence. The notice shall include the following information:

(a) The child has been removed from the custody of the parents;

(b) The process for applying to become the child(ren)'s foster parent and the standards for becoming a foster parent;

(c) The child is placed with kin, if applicable;

(d) The availability of DCF foster care payments and Mass Health medical insurance for the child;

(e) The Department's process for considering kin placements when more than one kin applies at the same time;

(6) When considering a kinship or child-specific placement, the Department shall require that the relative or extended familymember or individual chosen by parent(s) meet the Department's requirements, as set forth at 110 CMR 7.104 and 7.105.

(7) If more than one kinship or child-specific family is available and willing to be considered as a placement for the same childat the same time the Department reserves the right to prioritize which family(s) will be studied and in which order in accordancewith factors set forth in the Department's family resource policy.

(8) If placement is not made in a kinship home, the child's service plan shall indicate in writing:

(a) which kinship placements were given consideration; and

(b) the reason(s) why said persons were not utilized by the Department.

(9) The Department will promote early permanency decisions and outcomes for children in substitute care. The Departmentwill seek to have no more than # of all children (under the age of 18) who have been in foster care for over 24 months thatremain in foster care at any given time during the fiscal year.




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7.113: Reassessment and License Renewal of..., 110 MA ADC 7.113



Chapter 7.000: Services (Refs & Annos)

110 CMR 7.113

7.113: Reassessment and License Renewal of Foster/Pre-adoptive Parents and Foster/Pre-adoptive Homes

(1) The Department shall annually re-assess foster/pre-adoptive parents and foster/pre-adoptive homes whether unrestricted,kinship or other child-specfic, in accordance with the procedure set forth in 110 CMR 7.113(1)(a). Every two years a licenserenewal will be conducted in place of the annual reassessment.

(a) The Department shall send re-assessment materials to the foster/pre-adoptive parent 45 working days prior to the re-assessment due date:

(b) The Department will thereafter:

1. interview the foster/pre-adoptive parents and other household members in the foster/pre-adoptive home;

2. obtain information from any Department social worker who has had a child in his/her caseload placed in the home inthe previous year, and include information from any foster child then placed in the home, and thereafter enter a writtensummary of the interview results in the foster/pre-adoptive parent file;

3. review the foster/pre-adoptive parent file to examine written correspondence between the Department and the foster/pre-adoptive parent during the preceding year to review the Child Placement Agreements for children in the home in theyear preceding the re-assessment, to determine the foster/pre-adoptive parent's compliance with training requirementsestablished by the Department; and determine the nature and extent of the foster/pre-adoptive parent's involvement inthe implementation and review of the service plan for children placed in the home during the preceding year;

4. prepare a written evaluation of the foster/pre-adoptive parent(s) which may include a general description of thefoster/pre-adoptive parent's performance in providing foster/pre-adoptive care; identification of the foster/pre-adoptiveparent's particular strengths and weaknesses in providing foster/pre-adoptive care; and recommendations for eliminatingweaknesses and capitalizing on strengths identified;

5. request criminal record and Central Registry checks and other background checks as required by DepartmentBackground Record Check Policy and 110 CMR 18.00 et seq. for all household members, other than foster children;

6. contact references seem by Department staff as useful to the re-evaluation;

7. review and update of the foster/pre-adoptive parent professional development plan;

8. review of the physical standards for foster/pre-adoptive homes, as set forth in 110 CMR 7.105 and Department FamilyResource Policy, to ensure the home continues to meet these standards;

9. notify the foster/pre-adoptive parent, at least 15 working days prior to the re-assessment due date, of any issues thatneed resolution to continue the foster/-pre-adoptive parent license;

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10. develop with the foster/pre-adoptive parent a plan to meet the identified outstanding issues needing resolution anda time frame for completion.

(c) Within ten working days after completing the re-assessment, the Department shall reach one of the following decisionsshall notify the foster/pre-adoptive parents and shall enter a copy of the notification in the foster/pre-adoptive parent file:

1. The foster/pre-adoptive parent and foster/pre-adoptive home license is continued on the same terms, and with thesame conditions, as existed prior to the re-assessment. For kinship or child-specific placement this means the childcurrently in the home remains.

2. The foster/pre-adoptive parent and foster/pre-adoptive home license is continued on terms, and with conditions,different from those which existed prior to the re-assessment, which new and different terms and conditions shall beset forth in writing. For kinship or child-specific placements this may mean that the home was licensed for a differentor additional specific child.

3. The foster/pre-adoptive parent and/or the foster/pre-adoptive home license will not continue unless specific changesin circumstances or conditions are effected within a specified time period, not to exceed 14 days, and that if such changesare not effected within the time allotted, the child or children currently placed in the foster/pre-adoptive home will beremoved from the placement, and the placement will cease to the approved.

4. For an unrestricted foster/pre-adoptive parent the license continues but the home's status is changed to a child-specifichome.

5. The foster/pre-adoptive parent and/or the foster/pre-adoptive home are not re-approved, and all foster children residingin the home shall be removed.

(d) In any case in which the Department is delayed in completing the annual re-assessment, the unrestricted foster/pre-adoptive parent(s) and home shall continue to be licensed, until the Department completes the re-assessment and sendsnotice of its decision to the foster/pre-adoptive parent(s).

If the foster/pre-adoptive parent(s) appeal the revocation of their license via the fair hearing process, the license shallremain in effect until the fair hearing decision is issued.

(e) The foster/pre-adoptive parents shall receive a copy of the written evaluation upon request.

(2) The Department may, six months after a foster/pre-adoptive home is first licensed, conduct a review of the foster/pre-adoptive home whether unrestricted, kinship or child-specific. The review held under 110 CMR 7.113(2) may include, but notbe limited to, the procedures set forth in 110 CMR 7.113(1). At the conclusion of the review the Department shall reach oneof the decisions set forth in 110 CMR 7.113(1)(d). The Department shall send written notice to the foster/pre-adoptive parentof the outcome of the review.

(3) The Department shall conduct a license renewal study of all foster/pre-adoptive parent(s) and foster/pre-adoptive homesevery two years, prior to the expiration date of the existing license, provided, however, that an existing license shall continuein full force and effect until the Department reaches decision as a result of the license renewal study and notifies the foster/pre-adoptive parent(s), in writing, of that decision. The license renewal study shall substitute for the annual re-assessment duringthe year that the license renewal study is conducted.

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License renewal studies shall be conducted in accordance with the procedures set forth in 110 CMR 7.113(1)(a) and (b) andDepartment Family Resource Policy #2006-01 as well as the following:

(a) obtain and review a school reference for each school age child living in the foster/pre-adoptive home and for any childparticipating in pre-school or a child care program;

(b) when necessary, obtain and review an employer reference for each foster/pre-adoptive parent and head of householdwhose employment status has changed since the last annual reassessment;

(c) when necessary, obtain and review a medical reference for each household member.

Within ten working days after completing a license renewal study, the Department shall reach one of the decisions set forthin 110 CMR 7.113(1)(c), and shall notify the foster/pre-adoptive parent(s) of the decision in writing and shall enter a copy ofthe notification in the foster/pre-adoptive parent(s)' file.

(4) Whenever the Department has revoked or not renewed a license for a licensed foster/pre-adoptive parent(s), as a result ofan annual or limited re-assessment, the Department shall remove all children from the foster/pre-adoptive home, unless theDepartment determines that it is in the child(ren)'s best interest to remain in the foster/pre-adoptive home. If the Departmentdetermines that it is in the child(ren)'s best interest to remain in the foster/pre-adoptive home, the home shall become a childspecific home and subject to the same terms and conditions as any home approved under 110 CMR 7.108.

(5) The rights of foster/pre-adoptive parent(s) to appeal Department decisions under 110 CMR 7.113 or 7.113A are set forthin 110 CMR 10.06.




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8.01: Notice of Action, 110 MA ADC 8.01



Chapter 8.00: Service Denial, Reduction, or Termination (Refs & Annos)

110 CMR 8.01

8.01: Notice of Action

(1) The Department or provider shall give written notice to a client if the Department intends to deny, reduce, or terminateservices, or increase the cost thereof. The written notice shall contain:

(a) a statement of what action the Department intends to take;

(b) the reasons for the action;

(c) the date on which the action shall become effective;

(d) the address and telephone number of the Department office making the decision;

(e) an explanation of the client's right to request a fair hearing;

(f) a copy of the form used to request a fair hearing; and

(g) an explanation of the circumstances, if any, under which services will be continued pending the fair hearing.

(2) The written notice shall be mailed or hand-delivered to the client at least 14 days prior to the date of the intended action,except for a notice of denial which shall be mailed or hand-delivered within 55 days of the date of the Department's receiptof the application.

(3) The Department or provider may dispense with advance notice of action (but shall send written notice not later than thedate of action) when:

(a) the Department or provider has factual information confirming the death of the recipient of services;

(b) the Department or provider has received a clear, written statement from the recipient that he/she no longer wishesservices;

(c) the recipient gives to the Department information which requires termination or reduction of services, and the recipienthas indicated, in writing, that he/she understands that this must be the consequence of supplying such information;

(d) the recipient has been accepted as a recipient of services in a new jurisdiction; or

(e) a service was granted for a specific period and the recipient had been informed in writing at the time of initiation thatthe service would terminate at the end of the specified period.

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8.01: Notice of Action, 110 MA ADC 8.01





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Code of Massachusetts Regulations CurrentnessTitle 110: Department of Social Services

Chapter 10.00: Fair Hearing and Grievances (Refs & Annos)10.10: Scheduling

(1) Notification. Within ten calendar days of receipt of a request for a Fair Hearing, the Hearing Office shallsend notification of the scheduled hearing date to the aggrieved party and to the appropriate area office of theDepartment.

(2) Time Requirements for Hearing. The hearing shall be scheduled to be held within 90 calendar days from re-ceipt of a request for a Fair Hearing.

(3) Content of Notice of Scheduled Hearing. The notice of scheduled hearing shall inform the aggrieved party:

(a) of the date, time and location of the hearing;

(b) that the aggrieved party may examine portions of their file which relate or pertain to the issues raised bythe claimed appeal prior to or during the appeal, subject to any confidentiality requirements;

(c) that the aggrieved party may bring witnesses and an authorized representative;

(d) that in accordance with 110 CMR 10.13 the Department may issue subpoenas for witnesses upon requestmade at least ten calendar days in advance of the scheduled hearing;

(e) that a translator or interpreter and reasonable accommodations for handicapped persons will be providedif necessary.

(f) that the aggrieved party may request a rescheduling of the Fair Hearing.


Current through September 2, 2011, Register #1190

END OF DOCUMENT

110 CMR 10.10 Page 1

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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in the united states court of appeals for the first …...2014/03/24 · civ. no. 1:10-cv-30073-wgy...

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