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Case Name M.D. v. Abbott CW-TX-0001
Docket / Court 2:11-cv-00084 ( S.D. Tex. )
State/Territory Texas
Case Type(s) Child Welfare
Public Benefits / Government Services
Special Collection Post-WalMart decisions on class certification
Attorney Organization Children's Rights, Inc.
Case Summary
This class action (previously, MD v. Perry) involving long-term foster care in Texas was filed on March 29, 2011, in the U.S. District Court for the Southern District of Texas. The plaintiff class of children in long-term foster care was represented by private counsel and Children's Rights, Inc.; ... read more >
This class action (previously, MD v. Perry) involving long-term foster care in Texas was filed on March 29, 2011, in the U.S. District Court for the Southern District of Texas. The plaintiff class of children in long-term foster care was represented by private counsel and Children's Rights, Inc.; they sought declaratory and injunctive relief, claiming that the state failed to protect foster children from systemic harm.

The complaint alleged that defendants' frequent moves of the foster care children between placements was harmful; that the state placed kids in inappropriate congregate settings, failed to protect them from abuse and neglect in state custody, denied them necessary services, separated them unnecessarily from their siblings and deprived them of family visitation, and generally failed to find them permanent families or to raise them appropriately so that they were equipped to live independently once they aged out of foster care. All this, the plaintiffs said, was due to understaffing and mismanagement, and violated Substantive Due Process, Procedural Due Process, and the First Amendment associational rights of the plaintiff class.

The requested relief included regulation of caseloads, imposition of professional licensing standards, and the like. The plaintiffs also sought appointment of a monitor.

The plaintiffs filed their class certification motion a week after the complaint. On June 5, 2011, the District Court (Judge Janis Graham Jack) granted the motion for class certification. The state appealed.

On March 23, 2012, citing the intervening Supreme Court precedent of Wal-Mart v. Dukes, the Court of Appeals for the Fifth Circuit (Garza, J.) held that the district court had erred by failing to conduct the "rigorous analysis" required by Fed. R. Civ. P. 23(a)(2), and that the district court abused its discretion by certifying a class that lacked cohesiveness under Rule 23(b)(2). The case was remanded for reconsideration of the class application under the appropriate standard. 675 F.3d 832 (5th Cir. 2012).

The plaintiffs filed a second motion for class certification in October 2012. After a three-day hearing in January 2013, the Court found that the requirements of Rule 23(a), as explained in Dukes, were satisfied. On August 27, 2013, the court certified a general class (all children in the "permanent managing conservatorship" in Texas) and three subclasses (children in a licensed foster care placement; children in foster group homes; and children receiving basic childcare services). 294 F.R.D. 7 (S.D.Tex.2013). The defendants appealed, but the Fifth Circuit dismissed their appeal as untimely on November 19, 2013, because the defendants filed a day too late. 547 F. App'x 543 (5th Cir. 2013).

The case proceeded to trial in December 2014. For two weeks, the parties presented evidence to the district court. Following the trial, on December 17, 2015, the district court ruled for the plaintiffs, declaring that Texas must make targeted changes to its foster care system. The court found that the state put kids at risk because of high caseloads, dangerous foster group homes, inadequate investigations into abuse and neglect reports and a lack of placement options. The court mandated an immediate end to the "unsafe placement" of children, including ceasing assigning children to foster group homes that lacked 24-hour awake-night supervision. The court retained jurisdiction to issue orders as necessary to remedy the constitutional violations described in the order and opinion. 2015 WL 9244873 (S.D. Tex. Dec. 17, 2015).

The State asked the court to stay the order, but the court denied this request. The state appealed to the Fifth Circuit, which also denied the state's request on March 21, 2016.

Also on March 21, 2016, the district court appointed two experts as special masters, charged with overseeing the reform of Texas' foster care system. After receiving the special masters' recommendations and subsequent objections to those recommendations, the court entered an interim order on January 9, 2017. The court found that further research was needed before it could issue a final order. The interim order required the special masters to work with the state so as to implement plans relating to monthly visits between caseworkers and children, a centralized database with key information about the children, a 24-hour hotline for calls reporting child abuse or neglect, recommendations for children who age out of the system, appointment of attorneys for the children, the availability of children's healthcare records, a reduction in caseloads for caseworkers and in caseworker turnover, identifying single-child homes, reporting and monitoring child abuse and neglect, and placement.

On January 19, 2018, the court adopted in part the special masters' implementation plan, finding that the state had done little to assist the special masters in devising recommendations or to reform the foster care system. The recommendations focused on the aforementioned categories, providing specific policies and practices for the state to implement. The state immediately appealed, and the Fifth Circuit granted an administrative stay while the appeal was pending.

A three-judge panel consisting of Judges Higginbotham, Smith, and Clement heard the case for the Fifth Circuit. They issued an opinion on October 18, 2018 affirming in part, reversing in part, and remanding. 907 F.3d 237. The central issue on remand stemmed from the district court's permanent injunction being overly broad, and they were instructed to modify it to be consistent with their opinion.

On November 20, 2018, after parties had been given the opportunity to submit briefs addressing the issues on remand, the court issued its amended injunctive order. The state appealed the modified injunction to the Fifth Circuit on November 28, 2018.

On appeal, the same three judge panel was assigned to the case. On July 8, 2019, after reviewing the modified injunction, they affirmed in part, reversed in part, and vacated the order. 929 F.3d 272. They provided their own modifications to the injunction, and remanded to the district court for implementation without further changes. Monitoring and reporting resumed in compliance with the amended injunction.

The implementation of the injunction resulted in continuous litigation between the parties regarding monitoring requirements, attorneys' fees, and contempt of court. On November 5, 2019, the court ordered 24-hour awake-night supervision for placements with more than six children. After a clarification hearing on November 6, 2019, the court issued another order holding the defendant in civil contempt of court for violating this Court's order to provide 24-hour awake-night supervision, and that a sanction of $50,000 per day starting November 8, 2019 for seven business days, then $100,000 per day until defendants reach compliance.

On December 5, 2019, the defendants appealed once more to the Fifth Circuit for review of the orders requiring 24-hour awake-night supervision and sanctions stemming from that order. As of April 17, 2020, the parties are preparing for argument on the most recent appeal while implementation continues in the district court.

The case is ongoing.

Alice Liu - 09/27/2012
Jessica Kincaid - 04/19/2016
Virginia Weeks - 03/16/2018
Alex Moody - 04/17/2020


compress summary

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Issues and Causes of Action
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Issues
Affected Gender
Female
Male
Constitutional Clause
Due Process
Freedom of speech/association
Content of Injunction
Follow recruitment, hiring, or promotion protocols
Monitor/Master
Monitoring
Other requirements regarding hiring, promotion, retention
Recordkeeping
Reporting
Crowding
Crowding / caseload
Defendant-type
Jurisdiction-wide
General
Adoption
Classification / placement
Failure to discipline
Failure to supervise
Failure to train
Family abuse and neglect
Foster care (benefits, training)
Juveniles
Neglect by staff
Payment for care
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Relative caretakers
Siblings (visitation, placement)
Staff (number, training, qualifications, wages)
Totality of conditions
Visiting
Wait lists
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) Department of Family and Protective Services of the State of Texas
Governor of Texas
Health and Human Services Commission of the State of Texas
Plaintiff Description Plaintiffs are the class of Texas children in long-term foster care. Subclasses involve kids in licensed foster care, foster group homes, larger-scale institutions, and in kinship foster care.
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 Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 2015 - n/a
Filed 03/29/2011
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 ]

Court Docket(s)
S.D. Tex. 2:11−cv−00084
CW-TX-0001-9000.pdf | Detail
Date: 05/05/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
S.D. Tex.
PLAINTIFFS’ ORIGINAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION RELIEF AND REQUEST FOR CLASS ACTION
CW-TX-0001-0001.pdf | External Link | Detail
Date: 03/29/2011
Source: Plaintiffs' counsel
S.D. Tex.
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL AND MEMORANDUM OF LAW IN SUPPORT [ECF# 15]
CW-TX-0001-0007.pdf | Detail
Date: 04/05/2011
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Order [ECF# 49] (2011 WL 2173673 / 2011 U.S.Dist.LEXIS 59453)
CW-TX-0001-0005.pdf | WESTLAW| LEXIS | Detail
Date: 06/02/2011
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
ORDER [ECF# 58] (799 F.Supp.2d 712)
CW-TX-0001-0008.pdf | WESTLAW| LEXIS | Detail
Date: 07/01/2011
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Appeal from the United States District Court for the Southern District of Texas [Ct. of App. ECF# 00511798331] (675 F.3d 832)
CW-TX-0001-0002.pdf | WESTLAW| LEXIS | Detail
Date: 03/23/2012
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
PLAINTIFFS’ AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION [ECF# 130]
CW-TX-0001-0003.pdf | Detail
Date: 06/01/2012
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Judgment [Ct. of App. ECF# 133]
CW-TX-0001-0004.pdf | Detail
Date: 06/14/2012
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Bill of Costs [ECF# 134]
CW-TX-0001-0006.pdf | Detail
Date: 06/14/2012
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Plaintiffs' Fourth Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 206]
CW-TX-0001-0009.pdf | Detail
Date: 05/09/2013
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Plaintiffs' Corrected Fourth Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action [ECF# 212-3]
CW-TX-0001-0012.pdf | Detail
Date: 05/24/2013
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Order (294 F.R.D. 7)
CW-TX-0001-0011.pdf | WESTLAW| LEXIS | Detail
Date: 08/27/2013
Source: Bloomberg Law
S.D. Tex.
Agreed Order Granting Defendants' Motion for Partial Summary Judgment on the Claims of the Proposed Unverified Kinship Subclass [ECF# 225]
CW-TX-0001-0013.pdf | Detail
Date: 11/19/2013
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Order [Ct. of App. ECF# 228] (547 Fed.Appx. 543)
CW-TX-0001-0014.pdf | WESTLAW| LEXIS | Detail
Date: 11/19/2013
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Petition for Permission to Appeal under Fed. R. Civ. P. 23 (f) [Ct. of App. ECF# 228]
CW-TX-0001-0016.pdf | Detail
Date: 11/25/2013
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Joint Pretrial Order [ECF# 277]
CW-TX-0001-0015.pdf | Detail
Date: 11/14/2014
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Memorandum Opinion and Verdict of the Court [ECF# 368] (152 F.Supp.3d 684)
CW-TX-0001-0010.pdf | WESTLAW| LEXIS | Detail
Date: 12/17/2015
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Appointment Order [ECF# 379]
CW-TX-0001-0017.pdf | Detail
Date: 03/21/2016
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Order [Ct. of App. ECF# 379]
CW-TX-0001-0018.pdf | Detail
Date: 03/21/2016
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Interim Order Regarding Special Masters' Recommendations [ECF# 500] (2017 WL 74371)
CW-TX-0001-0019.pdf | WESTLAW | Detail
Date: 01/09/2017
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Final Order [ECF# 559]
CW-TX-0001-0020.pdf | Detail
Date: 01/19/2018
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Appeal from the United States District Court for the Southern District of Texas [Ct. of App. ECF# 601] (907 F.3d 237)
CW-TX-0001-0025.pdf | WESTLAW| LEXIS | Detail
Date: 10/18/2018
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Order [ECF# 606]
CW-TX-0001-0024.pdf | Detail
Date: 11/20/2018
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Order [ECF# 716]
CW-TX-0001-0021.pdf | Detail
Date: 11/05/2019
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Amended Order [ECF# 718]
CW-TX-0001-0022.pdf | Detail
Date: 11/06/2019
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
Order [ECF# 725] (418 F.Supp.3d 169)
CW-TX-0001-0027.pdf | WESTLAW| LEXIS | Detail
Date: 11/07/2019
Source: PACER [Public Access to Court Electronic Records]
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Judges Clement, Edith Brown (E.D. La., Fifth Circuit) show/hide docs
CW-TX-0001-0025
Higginbotham, Patrick Errol (N.D. Tex., Fifth Circuit) show/hide docs
CW-TX-0001-0025
Jack, Janis Graham (S.D. Tex.) show/hide docs
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Monitors/Masters Fitzgerald-Fowler, Deborah J. (Texas) show/hide docs
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McGovern, Frances (North Carolina) show/hide docs
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Ryan, Kevin M. (New Jersey) show/hide docs
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Plaintiff's Lawyers Almonrode, Patrick S. (New York) show/hide docs
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Barber, Philip (New York) show/hide docs
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Bartosz, Michael [Sara Michelle] K. (New York) show/hide docs
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Behrens, R. Thaddeus (Texas) show/hide docs
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Bell, Patricia C. (Texas) show/hide docs
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Canales, J. A. (Texas) show/hide docs
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Canales, Hector (Texas) show/hide docs
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Cardenas, Amelia J. (Texas) show/hide docs
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Circelli, Vincent Paul (Texas) show/hide docs
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Cohen, Melissa A. (New York) show/hide docs
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Dembrow, Adam C. (New York) show/hide docs
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Dixon, Stephen (New York) show/hide docs
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Dodds, David Allen (Texas) show/hide docs
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Farris, April L. (Texas) show/hide docs
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Finch, Aaron Hirsh (New York) show/hide docs
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Goldman, Dori K. (Texas) show/hide docs
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Kapell, William (New York) show/hide docs
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Lowry, Marcia Robinson (New York) show/hide docs
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Luciano, Adriana Teresa (New York) show/hide docs
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Lustbader, Ira P. (New York) show/hide docs
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McNeil, Barry F. (Texas) show/hide docs
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Nili, Rachel Brodin (New York) show/hide docs
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Pitman, Elizabeth (New York) show/hide docs
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Polansky, Jessica E. (New York) show/hide docs
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Porter, Christopher D. (Texas) show/hide docs
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Rosenthal, Joshua M. (New York) show/hide docs
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Russo, Sarah (New York) show/hide docs
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Sohmer, Olivia (New York) show/hide docs
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Wilson, Christina (New York) show/hide docs
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Yetter, R. Paul (Texas) show/hide docs
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Defendant's Lawyers Albright, Thomas A. (Texas) show/hide docs
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Eccles, James B. (Texas) show/hide docs
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Gdula, Kimberly Ann (Texas) show/hide docs
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Gibson, Darren Glenn (Texas) show/hide docs
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Hilton, Christopher D (Texas) show/hide docs
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Rietvelt, Marc (Texas) show/hide docs
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Stephens, Andrew Bowman (Texas) show/hide docs
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Sullivan, James P. (Texas) show/hide docs
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Todd, James Carlton (Texas) show/hide docs
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Other Lawyers Kutnick, Brett D. (Texas) show/hide docs
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