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Case Name Kenny A. v. Perdue CW-GA-0001
Docket / Court 1:02-cv-01686 ( N.D. Ga. )
State/Territory Georgia
Case Type(s) Child Welfare
Public Benefits / Government Services
Attorney Organization Children's Rights, Inc.
Case Summary
The advocacy organization Children's Rights, Inc. filed this lawsuit in June 2002 against the state of Georgia and the Departments of Family and Children Services (DFCS) in Fulton and DeKalb Counties, on behalf of children in foster care in Fulton and DeKalb counties. Plaintiffs alleged violations ... read more >
The advocacy organization Children's Rights, Inc. filed this lawsuit in June 2002 against the state of Georgia and the Departments of Family and Children Services (DFCS) in Fulton and DeKalb Counties, on behalf of children in foster care in Fulton and DeKalb counties. Plaintiffs alleged violations of the Georgia State Constitution, the First, Ninth, and Fourteenth Amendments to the United States Constitution, the Adoption Assistance and Child Welfare Act of 1980, the Medicaid Act, and the Multiethnic Placement Act of 1994. The complaint alleged that children did not receive necessary treatment and services while spending months in emergency shelters, experienced abuse and neglect as a result of an insufficient number of caseworkers, and received inadequate health care and emotional services while in foster care. Plaintiffs originally brought suit in Georgia state courts, but the stated removed the case to federal court because the cause of action included federal laws.

Judge Marvin Shoob of the U.S. District Court for the Northern District of Georgia granted plaintiffs' motion for class certification in August 2003, and at the same time granted the defendants' motion to dismiss in part regarding certain claims about the operation of emergency shelters, because the shelters had been closed. The Court denied a later motion for summary judgment filed by the counties and found that children in foster care in Georgia have a state statutory and constitutional right to effective counsel in child abuse and neglect proceedings. Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005).

In July 2005, Georgia agreed to a settlement that limited the caseload of case workers and required the state to meet benchmarks in numerous areas of service to children, including medical, dental, and mental health screenings and treatment. The court assigned two independent monitors to report on Georgia's progress towards meeting the benchmarks.

The county defendants entered into a consent decree with plaintiffs in May 2006; it approved the right-to-counsel settlements and established independent monitors for each county until the counties remain in substantial compliance for a continuous eighteen month period. The consent decrees established staffing requirements and caseloads for child advocate attorneys, and other bureaucratic changes to how Fulton County manages its County Child Advocate Attorneys office. DeKalb County and Fulton County were released from federal oversight in October 2008 and April 2011, respectively, because they had improved the quality of representation provided to foster children.

In August 2008, the plaintiffs filed a contempt motion against the state, citing its failure to meet court-ordered requirements to place hundreds of children in permanent homes. The state and plaintiffs jointly filed an agreement to consult national welfare experts in order to review the cases of all children in the backlog and to place them in permanent homes. The court Monitor has made six-month reports on the Georgia's progress towards meeting benchmarks.

On November 2, 2015, the parties agreed to a joint stipulation and order to modify the consent decree. The original consent decree required two independent accountability agents, but the parties agree to reduce that to one agent.

On February 16, 2016, the independent monitor team submitted a report finding the State was still not compliant with the court-ordered benchmarks. On February 24, 2016, the case was transferred from Judge Shoob, who had had it since its inception in 2002, to Judge Thomas W. Thrash, Jr.

On December 5, 2016, the court granted a joint motion to modify the consent decree, adding additional clarifications and stipulations regarding placements, visitation, outcome measures, process and infrastructure requirements, terms upon which State Defendants may move for the termination of the consent decree, and dispute resolution provisions. The modified consent decree also provided for biannual reports from the Monitoring and Technical Assistance Team on the ongoing and attained outcomes.

The civil case was closed on August 17, 2017, but biannual monitoring reports continue to be filed. As of June, 2018, the monitoring report noted that the Dekalb and Fulton County directors were prioritizing increasing the staff size and quality of training while emphasizing keeping families together and reducing the foster population. However, the report also found that there were inconsistencies in the data relating to caseload, vacancies, new hires and turnover.

Attorneys fees

In addition to the litigation regarding enforcement of the consent decree, this case also included extensive litigation regarding the award of attorney's fees to the plaintiffs. The consent decree with the State did not resolve the issue of attorney's fees and the parties had left that to the court to decide. The plaintiffs submitted a request for more than $14 million in attorney's fees. Half of that amount was based on their calculation of the lodestar (the number of hours spent working on the case multiplied by the attorneys' hourly rate). The other half was a fee enhancement for superior work and results. The defendants objected to the fee request, contending that some of the proposed hourly rates were too high, that the hours claimed were excessive, and that the enhancement would duplicate factors that were reflected in the lodestar amount.

On October 3, 2006, the district court awarded fees of approximately $10.5 million. 454 F.Supp.2d 1260 (N.D.Ga.2006). The court determined that the lodestar was $6 million and then enhanced that amount by 75% to account for superior performance and results. The defendants appealed this determination to the Eleventh Circuit.

After oral argument, a panel of the Eleventh Circuit affirmed the district court's award because it was not an abuse of discretion to award that amount of attorney's fees on July 3, 2008. 532 F.3d 1209 (2008). The eleventh circuit judges were divided over the district court's enhancement. The Eleventh Circuit denied the defendants' request for a rehearing en banc but was also divided over this ruling. The defendants petitioned the Supreme Court for a writ of certiorari seeking review solely as to the $4.5 million enhancement, which the Supreme Court granted. The Supreme Court heard oral argument on October 14, 2009.

Then, on April 21, 2010, the Supreme Court reversed the award of attorney's fees and remanded the case for further proceedings. The Supreme Court reaffirmed the rule that enhancements are permitted in extraordinary circumstances, but held that the district court had not provided proper justification for the enhancement it awarded in this case. The Supreme Court outlined standards for enhancements: 1) there is a strong presumption that the lodestar is sufficient; 2) factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and 3) a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. The Supreme Court reversed and remanded because the District Court had not applied these standards. 559 U.S. 542 (2010).

Accordingly, on September 2, 2010, the Eleventh Circuit vacated the district court's order and judgment entered on October 3, 2006, awarding the plaintiffs attorney's fees, costs, and remanded the case for further proceedings consistent with the Supreme Court's decision and opinion. 616 F.3d 1230 (2010).

The parties submitted new briefs and the district court heard oral argument on the issue. On July 19, 2011, the district court held that plaintiffs were not entitled to an enhancement under the new guidelines established by the Supreme Court.

Elizabeth Homan - 10/08/2012
Frances Hollander - 02/21/2016
Jessica Kincaid - 04/19/2016
Rachel Carpman - 11/09/2018


compress summary

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Issues and Causes of Action
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Issues
Affected Gender
Female
Male
Benefit Source
Medicaid
Constitutional Clause
Due Process
Freedom of speech/association
Content of Injunction
Hire
Implement complaint/dispute resolution process
Monitor/Master
Monitoring
Other requirements regarding hiring, promotion, retention
Recordkeeping
Reporting
Training
Crowding
Crowding / caseload
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Adoption
Classification / placement
Commitment procedure
Conditions of confinement
Counseling
Education
Emergency shelter
Family abuse and neglect
Foster care (benefits, training)
Government Services (specify)
Habilitation (training/treatment)
Juveniles
Neglect by staff
Placement in shelters
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Quality of representation
Staff (number, training, qualifications, wages)
Timeliness of case assignment
Totality of conditions
Medical/Mental Health
Medical care, general
Medical care, unspecified
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Adoption Assistance Program, 42 U.S.C. § 670 et seq.
Ex parte Young (federal or state officials)
Medicaid, 42 U.S.C §1396 (Title XIX of the Social Security Act)
Defendant(s) DeKalb County
Fulton County
Georgia
Plaintiff Description A class of all Fulton and DeKalb County, Georgia foster children
Indexed Lawyer Organizations Children's Rights, Inc.
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2005 - n/a
Filing Year 2002
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

Docket(s)
1:02−cv−01686 (N.D. Ga.)
CW-GA-0001-9000.pdf | Detail
Date: 06/27/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Opinion (218 F.R.D. 277) (N.D. Ga.)
CW-GA-0001-0013.pdf | WESTLAW| LEXIS | Detail
Date: 08/13/2003
Source: Westlaw
First Amended Complaint
CW-GA-0001-0002.pdf | External Link | Detail
Date: 08/20/2003
Order (356 F.Supp.2d 1353) (N.D. Ga.)
CW-GA-0001-0014.pdf | WESTLAW| LEXIS | Detail
Date: 02/08/2005
Source: Google Scholar
Consent Decree (State)
CW-GA-0001-0001.pdf | External Link | Detail
Date: 07/05/2005
Consent Decree (Fulton County) [ECF# 519]
CW-GA-0001-0007.pdf | External Link | Detail
Date: 02/13/2006
Source: PACER [Public Access to Court Electronic Records]
Consent Decree (Dekalb County) [ECF# 525-4]
CW-GA-0001-0008.pdf | External Link | Detail
Date: 03/23/2006
Order (454 F.Supp.2d 1260) (N.D. Ga.)
CW-GA-0001-0015.pdf | WESTLAW| LEXIS | Detail
Date: 10/03/2006
Source: Google Scholar
Period One Monitoring Report [ECF# 548]
CW-GA-0001-0003.pdf | External Link | Detail
Date: 11/03/2006
Source: PACER [Public Access to Court Electronic Records]
Period Two Monitoring Report
CW-GA-0001-0004.pdf | External Link | Detail
Date: 06/18/2007
Period Three Monitoring Report
CW-GA-0001-0005.pdf | External Link | Detail
Date: 12/17/2007
Period Four Monitoring Report
CW-GA-0001-0006.pdf | External Link | Detail
Date: 05/14/2008
OPINION before Carnes, Wilson, and Hill (Circuit Judges) (532 F.3d 1209)
CW-GA-0001-0022.pdf | WESTLAW| LEXIS | Detail
Date: 07/03/2008
Source: Google Scholar
Order (547 F.3d 1319)
CW-GA-0001-0016.pdf | WESTLAW| LEXIS | Detail
Date: 11/05/2008
Source: Google Scholar
Opinion (559 U.S. 542)
CW-GA-0001-0011.pdf | WESTLAW| LEXIS | Detail
Date: 04/21/2010
Source: Google Scholar
Order (616 F.3d 1230)
CW-GA-0001-0017.pdf | WESTLAW| LEXIS | Detail
Date: 09/02/2010
Source: Google Scholar
ORDER denying 683 Renewed Motion for Attorney Fees [ECF# 710] (N.D. Ga.)
CW-GA-0001-0021.pdf | Detail
Date: 07/19/2011
Source: PACER [Public Access to Court Electronic Records]
Consent Protective Order [ECF# 724] (N.D. Ga.)
CW-GA-0001-0018.pdf | Detail
Date: 04/21/2014
Source: PACER [Public Access to Court Electronic Records]
Period 18 Monitoring Report [ECF# 734]
CW-GA-0001-0020.pdf | Detail
Date: 08/10/2015
Source: Bloomberg Law
Joint Stipulation and Order [to modify Consent Decree] [ECF# 740] (N.D. Ga.)
CW-GA-0001-0019.pdf | Detail
Date: 11/02/2015
Source: PACER [Public Access to Court Electronic Records]
Joint Motion for Entry of Modified Consent Decree and Exit Plan [ECF# 745]
CW-GA-0001-0023.pdf | Detail
Date: 11/09/2016
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Carnes, Julie E. (N.D. Ga., Eleventh Circuit) show/hide docs
CW-GA-0001-0022
Hill, James Clinkscales (N.D. Ga., Fifth Circuit, Eleventh Circuit) show/hide docs
CW-GA-0001-0022
Shoob, Marvin Herman (N.D. Ga.) show/hide docs
CW-GA-0001-0018 | CW-GA-0001-0019 | CW-GA-0001-0021
Thrash, Thomas W. Jr. (N.D. Ga.) show/hide docs
CW-GA-0001-9000
Wilson, Charles R. (M.D. Fla., Eleventh Circuit) show/hide docs
CW-GA-0001-0022
Monitors/Masters Dimas, James T. (Maryland) show/hide docs
CW-GA-0001-0003 | CW-GA-0001-0004 | CW-GA-0001-0005 | CW-GA-0001-0006 | CW-GA-0001-0020
Morrison, Sarah A. (District of Columbia) show/hide docs
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Plaintiff's Lawyers Antonucci, Stacy F. (New York) show/hide docs
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Bartosz, Michael [Sara Michelle] K. (New York) show/hide docs
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Borten, Laurence D. (New York) show/hide docs
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Boyd, Samika Nicole (Georgia) show/hide docs
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Brackett, David G.H. (Georgia) show/hide docs
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Bramlett, Jeffrey O. (Georgia) show/hide docs
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Caplan, Michael A. (Georgia) show/hide docs
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Finch, Aaron Hirsh (New York) show/hide docs
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Gray, Douglas C. (New York) show/hide docs
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Hamrick, Gordon Lee IV (Georgia) show/hide docs
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Hechtman, Sarah (New York) show/hide docs
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Hirokawa, Corey Fleming (Georgia) show/hide docs
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Holt, Daniel W.E. (New York) show/hide docs
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Hyne, Elissa Lee Glucksman (New York) show/hide docs
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Lowry, Marcia Robinson (New York) show/hide docs
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Lustbader, Ira P. (New York) show/hide docs
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Nothenberg, Shirim (New York) show/hide docs
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Pitchal, Erik S. (New York) show/hide docs
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Powell, Jeffrey K. (New York) show/hide docs
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Remlin, Christina Wilson (New York) show/hide docs
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Ricci, Jane M. (Georgia) show/hide docs
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Shalf, Sarah M. (Georgia) show/hide docs
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Defendant's Lawyers Alexander, Carmen R. (Georgia) show/hide docs
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Baker, Thurbert E. (Georgia) show/hide docs
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Brantley, Overtis Hicks (Georgia) show/hide docs
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Brown, Vivica Mitchell (Georgia) show/hide docs
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Chandler, Patricia A. (Florida) show/hide docs
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Cohen, Mark Howard (Georgia) show/hide docs
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Dancy, Rolesia Butler (Georgia) show/hide docs
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Davis, Jefferson James (Georgia) show/hide docs
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Denmark, Winston A. (Georgia) show/hide docs
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Dunn, Dennis R. (Georgia) show/hide docs
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Hicks, Charles George (Georgia) show/hide docs
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Jones, John Custer (Georgia) show/hide docs
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Linkous, William J. III (Georgia) show/hide docs
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Lovett, William Jake Jr. (Georgia) show/hide docs
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MacKenzie, Andrew George (Georgia) show/hide docs
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Nelson, Shalen S. (Georgia) show/hide docs
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Olens, Samuel (Georgia) show/hide docs
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Pacious, Kathleen Mary (Georgia) show/hide docs
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Ruel, Charissa Ann (Georgia) show/hide docs
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Snelling, Eddie Jr. (Georgia) show/hide docs
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Taylor, Elizabeth B. (Georgia) show/hide docs
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Theriot, Jamie L. (Georgia) show/hide docs
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Whitted, Stephen E. (North Carolina) show/hide docs
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Other Lawyers Becker, Joshua Luke (Georgia) show/hide docs
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Fletcher, Courtney Carter (Georgia) show/hide docs
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Howell, Terry Robert (Georgia) show/hide docs
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Mast, J. Timothy (Georgia) show/hide docs
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Mazziotti, Thomas J. (Georgia) show/hide docs
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