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Connor B. v. Patrick

United States District Court, D. Massachusetts

November 22, 2013

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, 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

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For Connor B., by his next friend, Rochelle Vigurs, Adam S., by his next friend, Denise Sullivan, Camila R., by her next friend, Bryan Clauson, Rakeem D., by his next friend, Bryan Clauson, Plaintiffs: Daniel J. Gleason, Emily J. Grannon, LEAD ATTORNEYS, Jonathan D. Persky, Mary K. Ryan, Nutter, McClennen & Fish, LLP, Boston, MA; Elizabeth Pitman Gretter, Sarah Russo, LEAD ATTORNEYS, PRO HAC VICE, Laurence D. Borten, Marcia Robinson Lowry, Sara Michelle Bartosz, Children's Rights, New York, NY; Rachel Brodin Nili, Children's Rights, Inc., New York, NY.

For Andre S., by his next friend, Julia Pearson, Seth T., by his next friend, Susan Kramer, Plaintiffs: Daniel J. Gleason, LEAD ATTORNEY, Jonathan D. Persky, Mary K. Ryan, Nutter, McClennen & Fish, LLP, Boston, MA; Elizabeth Pitman Gretter, Sarah Russo, LEAD ATTORNEYS, PRO HAC VICE, Laurence D. Borten, Marcia Robinson Lowry, Sara Michelle Bartosz, Children's Rights, New York, NY; Rachel Brodin Nili, Children's Rights, Inc., New York, NY.

For Deval L. Patrick, in his official capacity as Governor of the Commonwealth of Massachusetts, Defendant: Jeremy D. Bayless, LEAD ATTORNEY, Office of Attorney General Martha Coakley, Boston, MA; Robert L. Quinan, Jr., LEAD ATTORNEY, Amy Spector, Jason B. Barshak, Attorney General's Office, Boston, MA; Steven H. Joseph, LEAD ATTORNEY, Office of the Attorney General Martha Coakley, Government Bureau / Trial Division, Boston, MA; Bryan G. Killian, Massachusetts Attorney General's Office, Boston, MA; Jeffrey T. Collins, Office of the Attorney General, Trial Division, Boston, MA; Liza J. Tran, Office of the Attorney General, Boston, MA.

For Judyann Bigby, in her official capacity as Secretary of the Massachusetts Executive Office of Health & Human Services, Angelo McClain, in his official capacity as Commissioner of the Massachusetts Department of Children and Families, Defendants: Jeremy D. Bayless, LEAD ATTORNEY, Office of Attorney General Martha Coakley, Boston, MA; Steven H. Joseph, LEAD ATTORNEY, Office of the Attorney General Martha Coakley, Government Bureau / Trial Division, Boston, MA; Amy Spector, Jason B. Barshak, Robert L. Quinan, Jr., Attorney General's Office, Boston, MA; Bryan G. Killian, Massachusetts Attorney General's Office, Boston, MA; Jeffrey T. Collins, Office of the Attorney General, Trial Division, Boston, MA; Liza J. Tran, Office of the Attorney General, Boston, MA.

For Jane Lyons, Friends of Children, Inc., Movants: Michael E. Aleo, LEAD ATTORNEY, Lesser, Newman & Nasser, LLP, Northampton, MA.

Michael S. Greenberg, Third Party Witness, Pro se, Springfield, MA.

For Lauren Ashley James, Third Party Witness: Bethany J. Flaherty, Sujata M. Tanikella, PRO HAC VICE, Bingham McCutchen LLP, New York, NY; Christopher L. Carter, Bingham McCutchen LLP - MA, Boston, MA.

For Judge Gail Garinger, Third Party Witness: Alexander Klibaner, Attorney General's Office, Boston, MA.

OPINION

WILLIAM G. YOUNG, DISTRICT JUDGE.

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FINDINGS AND RULINGS

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 neglect, have suffered harm or are exposed to harm [1] 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.

A. Procedural Posture[2]

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

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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.

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.

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).

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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; (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 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.

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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. 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. 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

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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 coauthor 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 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, 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 findings, Dr. Bellonci relied upon his

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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 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.

II. FINDINGS OF FACT[10]

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

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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 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 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 Fed. Reg. 32,969, 32,973 (June 7, 2006); The

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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 ...


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