National Center for Youth Law

STRATEGIES

M.D. v. Perry
also known as M.D. v. Abbott

Thirteen foster youth in the custody of Texas’s Permanent Managing Conservatorship (PMC), brought suit against defendants Rick Perry, then governor of Texas; Thomas Seuhs, Executive Commissioner of the Texas Health and Human Services Commission (HHSC); and Anne Heiligenstein, Commissioner of the Department of Family and Protective Services (DFPS).  Plaintiffs alleged that Defendants violated Plaintiffs’ substantive and procedural due process rights as guaranteed by the due process clause of the Fourteenth Amendment to the U.S. Constitution; and rights to family association under the First, Ninth and Fourteenth Amendments of the U.S. Constitution.

Plaintiffs alleged that Defendants failed to maintain an adequate number of caseworkers and appropriate placements, resulting in increased harm and risk of harm to children in PMC custody.

Overview

 

 

FILE NO., COURT, AND DATE FILED

2:11-cv-00084 (S.D. Tex, March 29, 2011)

CLEARINGHOUSE REVIEW NO

CW-TX-0001

CITATION

294 F.R.D. 7 (S.D. Tex 2013)

ATTORNEYS FOR PLAINTIFFS

Sara Bartosz, Stephen Dixon, Christina R. Wilson
Children’s Rights
Wall Street Plaza
88 Pine Street, Suite 800
New York, NY 10005
212 683 2210
sbartosz@childrensrights.org

R Paul Yetter, Dori Kornfeld Goldman, Lonny Hoffman
Yetter Coleman LLP
909 Fannin, Suite 3600
Houston, TX 77010713-632-8000
Pyetter@yettercoleman.com

Barry F. McNeil
Haynes Boone LLP
2323 Victory Ave, Suite 700
Dallas, TX 75219
Amelia.cardenas@haynesboone.com

Marcia Robinson Lowry
A Better Childhood, Inc.
1095 Hardscrabble Rd.
Chappaqua, NY, 10514
844-222-4255
mlowry@abetterchildhood.org

HISTORY AND STATUS

On March 29, 2011, Plaintiffs filed a complaint on behalf of all children who are currently or in the future will be in the permanent managing conservatorship of the Department of Family Protective Services, including all children in out-of-home or substitute care. Plaintiffs alleged that Defendants’ mismanagement of the Texas foster care system led to an insufficient number of case workers, permanent placement options, and services for foster youth, causing harm and the risk of harm to Plaintiffs. While in PMC, Plaintiffs allege they were subjected to multiple placements, frequent changes in placement, unnecessarily restrictive placements, unlicensed placements, sexual and physical abuse, inadequate therapeutic services, unnecessary or excessive doses of psychotropic medication, separation from siblings, and placements so far from home that family members were unable to visit them.

On April 5, 2011, Plaintiffs filed a Motion for Class Certification pursuant to Fed.R.Civ.P 23, which was granted on May 31, 31, 2011. Defendants appealed this ruling to the Fifth Circuit, pursuant to Fed. R. Civ. P 23(f). The Fifth Circuit vacated the district court’s certification of the class, finding that the class lacked cohesiveness and had not been assessed according to the standard articulated by the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes.

Plaintiffs filed an amended complaint in June 2012, a second amended complaint in October 2012, and a third amended complaint in January 2013.., Plaintiffs filed a second Motion for Class Certification in October 2012, which was granted in part on August 27, 2013 . The newly formed class consisted of a General Class and three subclasses. The General Class was comprised of all children now, or in the future, in the Permanent Managing Conservatorship of the State of Texas. The subclasses were (1) all members of the General Class who are now or will be in a licensed or verified foster care placement, excluding verified kinship placements; (2) all members of the General Class who are now or will be in a foster group home; and (3) all members of the General Class who are now or will be in a general residential operation and who are or will be receiving solely non-emergency, basic childcare services. The Court denied certification of a fourth subclass for children in unverified kinship placements because it lacked adequate representation.  Plaintiffs filed a fourth amended complaint on August 27, 2013.

The case proceeded to trial in December 2014. Following the trial, on December 17, 2015, the court found that the plaintiffs had proved by a preponderance of the evidence that DFPS’s “policies and practices amount to structural deficiencies that cause an unreasonable risk of harm to all class and subclass members”, and that injunctive relief was appropriate in this case.

The court ordered the state to establish and implement policies and procedures to ensure that PMC foster children are free from an unreasonable risk of harm. These policies and procedures include the immediate cessation of placing PMC children in group-homes lacking 24-hour, nighttime supervision, as well as other unsafe foster homes. The court also ordered the state to pay a Special Master, to be appointed by the court within 30 days, to come up with an implementation plan for improving Texas’s foster care system with respect to placement options, housing arrangements, and caseworker retention, training, and caseloads.

On January 8, 2016, Defendants filed a motion to stay the injunction. This motion was denied on January 11, 2016; defendants appealed to the Fifth Circuit. The Fifth Circuit denied the defendant’s request for a stay on March 21, 2016.

On March 21, 2016, the District Court appointed Kevin Ryan and Francis McGovern as co-Special Masters to come up with and oversee the state’s compliance with an implementation plan. On March 28, 2016, defendants filed a motion to revoke the appointment of special masters, or to stay enforcement of the court’s order. The motion was denied in its entirety.

On November 4, 2016, the Special Masters filed their recommendations with the court. On November 21, 2016, Defendants filed their objections to those recommendations. Defendants objected to the use of vague terminology in the recommendations, which Defendants alleged render the recommendations unenforceable under Fed. R. Civ. P 65(d).

On January 9, 2017, the Court issued an interim order regarding the Special Masters’ recommendations, finding that the recommendations were preliminary in nature and as a result, the court was unable to issue a final order.