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Appeals Courts Reject Challenges to Child Welfare Consent Decrees

By Mitchell Y. Mirviss

4eb8cc4d6bFoster children won two important victories in federal appeals court last year. In a pair of child welfare reform cases, courts upheld longstanding federal consent decrees1 that mandated crucial reforms to child welfare and foster care systems in Baltimore and Washington, D.C.

In 2009, the U.S. Supreme Court issued Horne v. Flores,2 which gave states the ability, under certain circumstances, to free themselves from the terms of certain court orders or judgments. Emboldened by the Horne decision, defendants in two child welfare cases tried to get federal courts to vacate longstanding consent decrees, but failed in both cases. In L.J. v. Wilbon, the U.S. Court of Appeals for the Fourth Circuit upheld the U.S. District Court for the District of Maryland’s refusal to vacate a consent decree mandating reforms to Baltimore’s child welfare system.3 One month later, another federal appellate court, the U.S. Court of Appeals for the D.C. Circuit, upheld a decision by the U.S. District Court in LaShawn A. v. Gray to deny a motion to vacate a consent decree that required comprehensive child welfare reforms in Washington, D.C.4

More than 6,000 foster children and their families in two major American cities thus managed to keep in place a pair of hard-fought agreements that remain unfulfilled. The decisions in L.J. and LaShawn A. both signal judicial reluctance to vacate decrees that protect the rights of foster children and thus should have a positive impact across the country.

“More than 6,000 foster children and their families in two major American cities thus managed to keep in place a pair of hard-fought agreements that remain unfulfilled. The decisions in L.J. and LaShawn A. both signal judicial reluctance to vacate decrees that protect the rights of foster children and thus should have a positive impact across the country.”

Understanding Horne

The latest wave of challenges to the L.J. and LaShawn A. decrees was sparked by the U.S. Supreme Court’s decision in Horne v. Flores. In that 2009 decision, the Supreme Court held that a federal court should not continue to hold state defendants accountable if they demonstrate compliance with applicable federal law by means other than those required in an injunction.5 In other words, if a state can show some level of compliance with a federal law, even if it is not following the steps required by the court, the state can ask the federal court to vacate the decree.

At issue in Horne was injunctive relief entered by the U.S. District Court for the District of Arizona after it found that Arizona had violated the Equal Educational Opportunities Act of 1974 (“EEOA”) by failing to provide enough funding to enable English Language Learner (ELL) students to overcome language barriers. After years of EEOA violations and court-imposed fines for contempt, Arizona enacted legislation that brought the state into compliance with EEOA, but the state failed to allocate enough funds to comply with the injunction. Plaintiffs again filed for contempt; defendants moved to vacate the injunction.6

The case eventually reached the Supreme Court. By a 5-4 margin, the Court held that, under the flexible standards of the federal rule for vacating or modifying an injunction, if the state agency is complying with applicable federal law and has corrected the violations that prompted the court to issue an injunction, the injunction order should be vacated, even if the state is continuing to violate the injunction.7 So long as the state complies with federal law by any means, even “other means” than those specified in the injunction, it might satisfy the test under the federal rule for vacating court-ordered relief.8 In support of its decision, the Court discussed the federalism interests9 at issue in a federal institutional reform case against a state. In dicta, Justice Alito’s majority opinion addressed some of the criticism that federalist scholars have leveled against longstanding institutional reform consent decrees. He suggested that it is unnecessary and even improper for a federal court to continue to enforce an order against a state when the state has achieved the order’s underlying objective of complying with federal law.10

In the wake of the Horne decision, defendants filed motions to vacate a number of longstanding institutional reform injunctions and consent decrees. Consent decrees in three foster care cases – LaShawn in the District of Columbia, L.J. in Baltimore, and Juan F. in Connecticut – were targeted. In all three cases, the courts denied the motions and left the decrees in place.

“Consent decrees in three foster care cases – LaShawn in the District of Columbia, L.J. in Baltimore, and Juan F. in Connecticut – were targeted. In all three cases, the courts denied the motions and left the decrees in place.”

Attempt to Vacate Baltimore Consent Decree Fails

In 1984, a class of foster children in the custody of the Baltimore City Department of Social Services sued in federal District Court over violations of federal law and of their constitutional due process rights to care and protection against severe maltreatment.11 L.J., the named plaintiff, had lived with a severely alcoholic and mentally ill foster mother and with an 85-year-old disabled man who shared his bed. Scars from chronic abuse covered his body. L.J. had no case plan and was rarely visited by caseworkers. Another plaintiff, 4-month-old O.S., was fed adult food chewed and regurgitated by her foster mother. P.G. lost her vision in one eye after going without ophthalmological treatment. Extensive evidence confirmed citywide lapses in the provision of health care and safety.12

In 1987, the court granted a preliminary injunction based on both statutory and constitutional claims.13 The Fourth Circuit affirmed.14 Defendants entered into a consent decree that mandated a number of fundamental improvements to the system, including: case plans; judicial reviews; diverse placement options; criminal background checks on foster parents and other caregivers; health, safety, and fire inspections of foster homes; monthly caseworker visits; health assessments; health care; permanent placements; school enrollment; and a caseload cap. In 1991, these protections were extended to children placed with relatives.15

Defendants never complied with the consent decree. In 2002, a state audit reported rampant violations, including a failure to conduct criminal background checks of foster parents and a lack of available treatment for emotionally disturbed children. Subsequent audits found numerous continuing violations. One audit found that defendants’ reports to the court were incorrect and unreliable, thus concealing the gravity of the violations. Eventually, defendants reported that huge numbers (at least half in many cases) of the children lacked basic health, mental health, dental, educational, or other services or case plans. Due to a shortage of foster parents, many foster children were being placed in poorly monitored and substandard group homes. Defendants surreptitiously used agency offices as illegal, unlicensed shelters where scores of children slept without bedding, mattresses, showers, proper medical attention, toys, books, undergarments, and other necessities. Boys slept on a hard linoleum floor or sitting up, in hard plastic chairs. Basic hygiene was ignored, and one girl required emergency treatment for an acute condition caused by unsanitary conditions. A diabetic child subsisted on fast food for weeks. An infant with a feeding tube was left without trained staff.

In 2007, plaintiffs filed a 400-page contempt petition against defendants for failing to comply with the consent decree. During a contempt hearing in 2008, defendants offered to negotiate a new agreement, and in June 2009, after eight months of negotiations, the parties agreed on a comprehensive, modified consent decree that required the implementation of a number of additional reforms as well as independent verification of the defendants’ compliance reports.

Then, the U.S. Supreme Court issued its opinion in Horne. The parties in the Baltimore case had just moved for judicial approval of the new consent decree, but the defendants, sensing an opportunity, reversed course: they opposed entry of the new decree and tried to use Horne to raise a challenge often brought in foster care reform cases involving the Adoption Assistance and Child Welfare Act of 1980 (AACWA), the federal law that protects the rights of foster children. Defendants in such cases often argue that rights protected by federal law cannot be the basis of a lawsuit brought by individual foster children, and that the only available remedy is for the federal government to withhold funding from states that violate the law. Thus, in L.J., defendants claimed that the federal law was not “privately enforceable” under the 17-year-old Supreme Court decision in Suter v. Artist M.16 Relying on a footnote in the Horne opinion, defendants argued that private plaintiffs cannot enforce federal statutes that lack a private right of action even if those issues were decided decades earlier.17 They did not contend that they were in compliance with federal law, as the defendants in Horne had argued.

The District Court denied defendants’ motion and entered the new consent decree. The Fourth Circuit affirmed unanimously.18 It held that the footnote in Horne did not change the law19 and upheld its prior ruling in 1988 that the foster children could enforce their rights under the federal law in court.20 Notably, L.J rejected defendants’ core argument that the Suter decision had changed the law such that foster children could no longer enforce any provisions of the Adoption Assistance and Child Welfare Act of 1980 (AACWA) in court21 – despite disagreement among the lower courts over the private enforceability of the Act. L.J. thus importantly affirms that, in the Fourth Circuit, most AACWA rights are privately enforceable by foster children.

The Fourth Circuit denied rehearing en banc, and, on Nov. 28, 2011, the U.S. Supreme Court denied defendants’ petition for a writ of certiorari.22  The Baltimore consent decree thus is alive and fully enforceable.

D.C. Consent Decree Also Upheld

The case of LaShawn A. has had a similarly tortured history. In 1989, a class of children brought a federal class action suit against District of Columbia officials alleging that they had violated numerous state and federal laws and constitutional requirements regarding foster care and protective services investigations. After a two-week trial in 1991, the U.S. District Court for the District of Columbia found that “the District had failed to comply with reasonable professional standards in almost every area of its child welfare system.” As a result of “widespread and systematic deficiencies,” foster children and children at risk of maltreatment had suffered both physical and emotional harm.23

While pursuing an appeal, Defendants entered into a decree requiring comprehensive reforms and the appointment of a monitor.24 Between 1993 and 1996, the case went back and forth between the trial court and the appellate court on various technical legal issues. Finally, in 1996, the appellate court affirmed a modified decree nearly identical to the original decree.

When the defendants failed to comply with the decree, plaintiffs petitioned the court for contempt. Initially, in 1994, the court appointed three receivers (independent professionals) to manage child protective services, resource development, and corrective action functions. When the receivers reported severe systemic dysfunction and persistent violations, however, the District Court found the defendants in contempt and placed the entire system under general receivership in 1995, a move that is virtually unprecedented in child welfare reform cases. Defendants appealed again, claiming that the receivership violated state law, and the D.C. Circuit sent the case back to the trial court for determination of technical legal issues.25 In 2000, however, the parties signed a consent decree to end the receivership, and, after a period of compliance and systemic improvement, the receivership was lifted in 2001. Progress continued in subsequent years.

Seven years later, in 2008, the decomposing bodies of four children in the same family (the Jacks family) were discovered and widely reported. Defendants had known of the children as a result of multiple abuse and neglect reports but failed to monitor their cases. The D.C. protective services system was soon overwhelmed after the news broke, and plaintiffs in the LaShawn A. case again petitioned the court to hold defendants in contempt for violating the consent decree. When defendants failed to comply with a court-ordered stipulated corrective agreement, plaintiffs renewed their contempt petition in 2009. Defendants responded by asking the court to approve their own plan, unapproved by the monitor and lacking virtually any specific action steps or benchmarks by which to measure improvements to the foster care system. While these motions were pending, the Supreme Court issued Horne. Relying on Horne, defendants moved to modify the existing consent decrees or, ideally, to vacate them, arguing that they were in full compliance with the relevant statutes and that the decrees were doing more harm than good.

The District Court held the defendants in contempt for violating the court orders and denied most of the defendants’ requests.26 It ruled that, unlike the involuntary injunction order in Horne, the consensual nature of the decrees in LaShawn required a broader analysis of whether defendants were “now in enduring compliance with the mandates underlying the consent decree.”27 The court found that defendants had failed to demonstrate compliance, either with the decrees or the statutes, in protective services investigations, foster care case planning, adoptions, termination of parental rights, and staffing issues such as training.28 It also found that the District of Columbia’s child welfare system “largely fell to pieces” in the wake of the Jacks tragedy.29 Moreover, even where compliance had occurred, defendants had failed to show persistent good faith or consistent compliance; problems remained in investigations, health and mental health services, placement stability, and efforts to achieve permanent placements for foster children.30 In 2008 alone, at least nine children known to defendants had died in their homes from abuse (and 35 other known children had died from other causes).31

Once again, defendants appealed. In a summary decision, the D.C. Circuit upheld the District Court’s ruling that defendants had failed “to demonstrate durable statutory compliance” as required by Horne.32 It also agreed with the District Court that, even where positive institutional reforms had taken place, termination of the decrees was premature in light of the Jacks family deaths and the subsequent collapse of D.C.’s child welfare system.33

The D.C. Circuit, together with the Fourth Circuit in L.J. v. Wilbon, thus confirmed that, even after the Supreme Court’s decision in Horne, defendants cannot easily escape the obligations of child welfare consent decrees. They still have to demonstrate durable and consistent compliance with all applicable requirements. In encouraging news for foster children and their advocates, the cases demonstrate that Horne has not dramatically altered the landscape of child welfare consent decree enforcement.

“In encouraging news for foster children and their advocates, the cases demonstrate that Horne has not dramatically altered the landscape of child welfare consent decree enforcement.”

Finally, a similar Horne challenge to a foster care consent decree was rejected in Connecticut.34 Foreshadowing L.J., the court ruled that defendants “overstate[d] the impact of Horne,” which did not authorize courts to re-open the question of whether foster children could enforce the federal laws that formed the basis for the lawsuit.35 Foreshadowing LaShawn A., the court ruled that Horne required full compliance, not just “considerable progress.”36


Mitchell Y. Mirviss is a partner at Venable LLP in Baltimore, MD, and co-chairs the firm’s appellate advocacy group.  He has represented the plaintiff class in the L.J. litigation since 1988, when he (and the case) was at Maryland’s Legal Aid Bureau, Inc. 


  1. A consent decree is a judicially enforceable agreement entered into by the parties and approved by a court. It operates as a court order and typically requires specific changes and improvements to systems.
  2. — U.S. —, 129 S. Ct. 2579 (2009).
  3. 633 F.3d 297 (4th Cir. 2011), cert. denied sub nom. Dallas v. L.J., — U.S. —, 2011 WL 3102408 (Nov. 28, 2011).
  4. LaShawn A. v. Gray, 412 Fed. Appx. 215, 2011 WL 1113558 (D.C. Cir. Feb. 28, 2011)
  5. See Horne, 129 S. Ct. at 2606.
  6. The defendants sought to vacate the decree under Fed. R. Civ. P. 65(b)(5).
  7. See Horne, 129 S. Ct. at 2595 (“a critical question in this Rule 60(b)(5) inquiry is whether the objective of the District Court’s 2000 declaratory judgment order … has been achieved. If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper” (citation omitted).)
  8. Id. at 2589.
  9. ix “Federalism” refers to the allocation of rights and responsibilities between federal and state governments. In this context, it refers to Eleventh Amendment limits to the power of federal courts to issue orders to state governments. .
  10. See id. at 2594.
  11. Specifically, they sued under 42 U.S.C. § 1983 for violations of the Adoption Assistance and Child Welfare Act of 1980, P.L. 96-272, codified at 42 U.S.C. §§ 620 et seq., 670 et seq.
  12. See L.J. v. Massinga, 699 F. Supp. 508, 514, 531-33 (D. Md. 1988) (“L.J. I”).
  13. See L.J. I, 699 F. Supp. at 528-40.
  14. L.J. v. Massinga, 838 F.2d 118, 122-24 & n.3 (4th Cir. 1988) (“L.J. II”), cert. denied, 488 U.S. 1018 (1989).
  15. L.J. v. Massinga, 778 F. Supp. 253 (D. Md. 1991).
  16. 503 U.S. 347 (1992).
  17. 129 S. Ct. 2579, 2598 n.6. In Horne, plaintiffs had argued that, even if defendants were complying with EEOA, the decree could be enforced because defendants were violating the No Child Left Behind Act (NCLB). NCLB had never been part of the case and was not privately enforceable, and Footnote 6 merely found that NCLB could not be substituted for EEOA to salvage the injunction. In L.J., defendants argued that this unremarkable conclusion was a substantial change of law requiring vacatur under Rule 60(b)(5).
  18. L.J. v. Wilbon, 633 F.3d 297 (4th Cir. 2011) (“L.J. III”) (Duncan, J.).
  19. Id. at 306-07.
  20. Id. at 307-12.
  21. Specifically, the Fourth Circuit rejected the argument that the 1992 Suter decision rendered AACWA privately unenforceable, as Suter’s findings that two AACWA provisions (reasonable efforts to prevent foster care and maltreatment reports) are unenforceable did “not void our holding in L.J. II that the rights asserted by plaintiffs under [AACWA’s case plan provisions, e.g., 42 U.S.C. § 671(a)(16)] are privately enforceable[.]” Id. at 309-10. It explained that in subsequent legislation, 42 U.S.C. § 1320a–2 (the “Suter Fix”), Congress overruled much of Suter, see L.J. III at 309, and that AACWA’s case plan provisions likely passed muster for enforceability under Blessing v. Freestone, 520 U.S. 329 (1997), and Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
  22. Dallas v. L.J., — U.S. —, 2011 WL 3102408 (Nov. 28, 2011).
  23. LaShawn A. v. Dixon, 762 F. Supp. 959, 983-86, 998 (D. D.C. 1991).
  24. Specifically, in 1993, the D.C. Circuit found that D.C. law might support plaintiffs’ claims, so to avoid addressing Suter, it remanded to the District Court for consideration of which decree provisions were supported by state law. LaShawn A., 990 F.2d at 1325. The District Court then entered a modified order nearly identical to the first order, and defendants appealed again, claiming that their prior consent was nullified and no pendent jurisdiction existed over the state law claims. A divided appellate panel remanded for determination of the validity of the federal claims and pendent jurisdiction, LaShawn A. v. Barry, 69 F.3d 556 (D.C. Cir. 1995), but, sitting en banc, the full D.C. Circuit reversed, and held that that the law-of-the-case and law-of-the-circuit doctrines precluded a challenge to pendent jurisdiction. LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc). The panel then found District law sufficient and affirmed the modified decree. LaShawn A. v. Barry, No. 94-7044, 1996 WL 679301 (D.C. Cir. Oct. 30, 1996).
  25. The appellate court remanded, requiring determination of which federal laws, post-Suter and post-Suter Fix, overrode state law. LaShawn A. v. Barry, 144 F.3d 847 (D.C. Cir. 1998).
  26. LaShawn A. v. Fenty, 704 F. Supp. 2d 84, 94 (2010) (contempt finding); id. at 98-112 (denial of motion to terminate).
  27. Id. at 100.
  28. Id. at 103-10.
  29. Id. at 111-12.
  30. Id. at 110-12.
  31. Id. at 112 n.35.
  32. LaShawn A. v. Gray, 412 Fed. Appx. 315, 2011 WL 1113558 (D.C. Cir. Feb. 28, 2011) (per curiam).
  33. Id. at 316.
  34. Juan F. v. Rell, Civ. A. No. 3:89-CV-859 (CFD), 2010 WL 5590094 (D. Conn. Sept. 22, 2010).
  35. Id. at *3.
  36. Id. at *3-4.

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