Class Actions

Texas

TX - M.D. v. Perry

At the time the complaint was filed, there were 13 named plaintiffs, including M.D. and S.A.

M.D., 16 at the time of the amended complaint, entered foster care at 8. Originally placed with relatives, M.D. was sexually abused by a cousin and returned to state custody. She bounced from placement to placement, many of which were institutions.  M.D.’s mental health deteriorated in these settings. At the time of the original complaint, M.D. lived in a restrictive short-term therapeutic placement with no visitors or basic privileges and has since moved to a residential treatment facility.

S.A. entered foster care at 5.  While in care, S.A. was shuffled between at least 28 placements.  She lived in institutions for six straight years. S.A. did not even experience stability with her caseworkers. She already had 12 caseworkers by 2011. At the time of the amended complaint, S.A. was living in a treatment center.

U.S. District Judge Janis Graham Jack, U.S. District Court, Southern District of Texas
STATUS: Active
FILED: March 29, 2011
CLASS CERTIFIED: August 27, 2013

Children’s Rights, along with co-counsel Haynes & Boone, Yetter Coleman and Canales & Simonson, filed this case against Rick Perry, in his official capacity as Governor of Texas; Kyle Janek, in his official capacity as the Executive Commissioner of the Health and Human Services Commission of Texas (HHSC); and Howard Baldwin, in his official capacity as the Commissioner of the Department of Family and Protective Services (DFPS).

The current structure of Texas’s child welfare system gives caseworkers approximately one year, or a maximum of 18 months, to either successfully reunify children with their birth families or find them adoptive homes before they enter “permanent managing conservatorship” or PMC. After entering PMC, many children have little hope for stable, permanent families. Children’s Rights brought suit on behalf of all children in Texas PMC. The Amended Complaint alleged violations of the plaintiff children’s constitutional rights, including their right not to be harmed while in state custody and their right to familial association. Among the issues described in the complaint:

  • DFPS has an insufficient number of caseworkers, forcing caseworkers to carry over double the caseload limits under recognized standards, putting children at risk. In 2011, 55 percent of caseworkers had caseloads exceeding 30 children and 24 percent had caseloads exceeding 40 children.
  • DFPS has an insufficient number and geographic distribution of placement options. In 2011, 55 percent of children were placed outside of their home counties.
  • Sibling groups are frequently split up.
  • Due to the insufficient placement array, Texas places children in non-therapeutic and non-emergency group care, despite acknowledging that these homes are too restrictive for children’s needs. At homes like these, including foster group homes, children were often not properly supervised, resulting in serious safety incidents.
  • Children experience too many placement moves. As of August 2011, 35 percent of children in PMC had already been in five or more placements.
  • DFPS fails to enforce compliance with licensing standards, relying heavily on child placing agencies and residential facilities to verify their own compliance.
  • Children languish in care without permanent homes. In state Fiscal Year 2011, 1,202 children in PMC “aged out” of foster care (typically at age 18) without a permanent home, representing 17.5 percent of all children exiting PMC.

On the road to trial, the case encountered obstacles as the law surrounding class certification changed with the Supreme Court decision in Wal-Mart v. Dukes. The class was certified in the District Court, but Defendants brought a petition for interlocutory review of the class certification order to the Fifth Circuit Court of Appeals. The Fifth Circuit reviewed the case and vacated the District Court order.

In response, Children’s rights filed the amended complaint creating a general class of children who will be or are in PMC of DFPS and four subclasses. These subclasses include: (1) all members of the general class who are now or will be in a licensed or verified foster care placement; (2) all members of the general class in a foster group home; (3) all members of the general class in a general residential operation and are receiving solely non-emergency, basic child care services; and (4) all members of the general class who are in an unverified kinship placement. In accordance with the Fifth Circuit ruling, the District Court Judge filed an Order recertifying the class and subclasses.  Another attempted appeal by Defendants was rejected and dismissed by the Fifth Circuit.

Since that time, Children’s Rights and co-counsel have been working diligently on fact discovery and preparation for the upcoming trial, scheduled for December 2014.