Texas Foster Care Plaintiffs Ask Federal Judge To Hold State in Contempt of Court

Case 2:11-cv-00084 Document 901 Filed on 07/02/20 in TXSD Page 1 of 19
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
M.D., b/n/f Sarah R. Stukenberg, et al., )

)
Plaintiffs, )
v. )
)
Civil Action No. 2:11-CV-00084
GREG ABBOTT, in his official capacity as )
Governor of the State of Texas, et al., )
)
Defendants. )
PLAINTIFFS’ MOTION TO SHOW CAUSE WHY

DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT
Nine years after this suit was filed, five years after the trial, and almost two years after the
Court’s remedial order affirmed by the Fifth Circuit, the State still has not addressed glaring safety
risks in its foster care system.
On June 16, 2020, the Court’s Monitors submitted their First Report 2020. Dkt. 869. It
detailed their findings regarding the State’s efforts and progress in implementing the November
20, 2018 Final Order, Dkt. 606, as modified by the Fifth Circuit. Shockingly, the report reveals
widespread failings by the State to comply with the orders and tragic harm to children. Plaintiffs
move for an order directing the State to show cause why defendants should not be held in contempt,
as the evidence is both clear and convincing that they have not complied with the remedial orders,
and children are suffering as a result. While the State simply refuses to reform its system, innocent
children are dying, being needlessly hurt, and remain at serious risk of harm.
GOVERNING LAW
Federal courts “are not reduced to issuing injunctions against state officers and hoping for
compliance.” Hutto v. Finney, 437 U.S. 678, 690 (1978). “Once issued, an injunction may be
enforced.” Id. Courts “have inherent power to enforce compliance with their lawful orders through
civil contempt.” Shillitani v. U.S., 384 U.S. 364, 370 (1966). Indeed, “the power of courts to punish
for contempt is a necessary and integral part of the independence of the judiciary, and is absolutely
essential to the performance of the duties imposed on them by law.” Gompers v. Buck’s Stove &
Range Co., 221 U.S. 418, 450 (1911).
This contempt power is recognized by statute. “A court of the United States shall have the
power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority,
and none other,” as
(1) Misbehavior of any person in its presence or so near thereto as to obstruct

the administration of justice; . . . [and]
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or
command.
18 U.S.C. §401 (1988). As such, the Supreme Court repeatedly has recognized the authority of the
federal courts to impose civil contempt sanctions. See, e.g., Hicks v. Feiock, 485 U.S. 624, 632
(1988); Shillitani, 384 U.S. at 370-71; Gompers, 221 U.S. at 441. A court has “inherent authority”
to sanction parties for “a full range of litigation abuses.” Chambers v. NASCO, Inc., 501 U.S. 32,
46 (1991). This power derives from “the control necessarily vested in courts to manage their own
affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 43 (cite omitted).
A court’s findings of fact in support of a contempt order are reviewed for clear error, with
its underlying conclusions of law reviewed de novo. See, e.g., Petroleos Mexicanos v. Crawford
Enters., Inc., 826 F.2d 392, 401 (5th Cir.1987); U.S. v. City of Jackson, Miss., 359 F.3d 727, 731
(5th Cir. 2004). And a determination based on a court’s “years of experience” overseeing the
reform litigation, and familiarity with a defendant’s history of obstructing change, is entitled to
“special deference.” Hutto, 437 U.S. at 687-88.
[T]he exercise of discretion in [a] case is entitled to special deference because of

the trial judge’s years of experience with the problem at hand [and] taking the long
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and unhappy history of the litigation into account, [a] court [is] justified in entering
a comprehensive order to insure against the risk of inadequate compliance.
Id. Deference to a trial court is “heightened” and “substantial” when it has been “overseeing a
large public institution over a long period of time” and has “an understanding of the difficulties
involved . . . that an appellate court, even with the best possible briefing, could never hope to
match.” Rufo v. Inmates of Suffolk Co. Jail, 502 U.S. 367, 394 (1992) (O’Connor, J., concurring).
Lastly, for orders to remedy unconstitutional conditions, a court “has an additional basis for the
exercise of broad equitable powers.” Spallone v. U.S., 493 U.S. 265, 276 (1990) (cite omitted).
A movant for contempt has the burden to show by clear and convincing evidence three
facts: a court order was in effect, the order required certain conduct, and the party required to
comply failed to do so. See Whitcraft v. Brown, 570 F.3d 268, 271 (5th Cir. 2009); Lyn-Lea Travel
Corp. v. Am. Airlines, Inc., 283 F.3d 282, 291 (5th Cir. 2002). Clear and convincing evidence in a
civil contempt proceeding is
that weight of proof which produces in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established, evidence so
clear, direct and weighty and convincing as to enable the fact finder to come to a
clear conviction, without hesitancy, of the truth of the precise facts of the case.
Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995) (cite/quote omitted). If a movant
proves a prima facie case that an order was not complied with, the respondent then bears the burden
to show mitigating circumstances, substantial compliance with the order, or every reasonable effort
to comply, such that the court might withhold exercising its contempt power. See Whitfield v.
Pennington, 832 F.2d 909, 914 (5th Cir. 1987); Petroleos Mexicanos, 826 F.2d at 401.
In using civil contempt to ensure compliance with remedial orders, a court is to consider
“the character and magnitude of the harm threatened by continued contumacy, and the probable
effectiveness of any suggested sanction in bringing about the result desired.” U.S. v. United Mine
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Workers of Am., 330 U.S. 258, 304 (1947). Moreover, “while a party’s subjective belief that she
was complying with an order ordinarily will not insulate her from civil contempt if that belief was
objectively unreasonable,” civil contempt sanctions “may be warranted when a party acts in bad
faith.” Taggart v. Lorenzen, 139 S. Ct. 1795, 1802 (2019). Thus, a party’s “record of continuing
and persistent violations” and “persistent contumacy” justifies placing the “burden of any
uncertainty in the decree . . . on [the] shoulders” of the contemnor. McComb v. Jacksonville Paper
Co., 336 U.S. 187, 192-93 (1949). See also McPhaul v. U.S., 364 U.S. 372, 379 (1960) (proof
“established a prima facie case of willful failure to comply with the subpoena”).
To be sure, a court should use the “least possible power adequate to the end proposed.”
Spallone, 493 U.S. at 276 (cite omitted). And while it is true that in exercising equitable power to
enforce its decrees a court will accord “proper respect for the integrity and function of local
government institutions,” respect is warranted only when the institutions “are ready, willing, and
. . . able to remedy the deprivation of constitutional rights themselves.” Missouri v. Jenkins, 495
U.S. 33, 51 (1990). Thus, in Spallone, contempt sanctions were proper against a city that failed to
remedy unconstitutional public housing practices, despite its agreement by consent decree to do
so. Sanctions were proper “as a means of ensuring compliance” with the remedial orders, since the
city was a party to the case and “had been found liable for numerous statutory and constitutional
violations, and had been subjected to various elaborate remedial decrees which had been upheld
on appeal.” 493 U.S. at 276.
ARGUMENT AND AUTHORITIES
1. Remedial Order 3: Taking Account of Child Safety Needs While Screening and
Investigating Reports of Abuse and Neglect
Plaintiffs seek an order directing defendants to show cause why they should not be held in
contempt for failing to comply with Remedial Order 3, which provides:
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DFPS shall ensure that reported allegations of child abuse and neglect involving
children in the PMC class are investigated; commenced and completed on time
consistent with the Court’s Order; and conducted taking into account at all times
the child’s safety needs. The Monitors shall periodically review the statewide
system for appropriately receiving, screening, and investigating reports of abuse
and neglect involving children in the PMC class to ensure the investigations of all
reports are commenced and completed on time consistent with this Order and
conducted taking into account at all times the child’s safety needs. [Dkt. 606 at 2]
DFPS policy requires its Residential Child Care Investigations unit (“RCCI”) to conduct
secondary screenings of allegations for abuse, neglect, or exploitation of foster children initially
made to Statewide Intake, the State’s primary reporting hotline. See Report at 60.1 During this
secondary review, RCCI has unilateral authority to confirm or override Statewide Intake’s initial
decision that a report rises to the level of abuse, neglect, or exploitation of a child. Id. at 34.
The Monitors looked at a sample of 174 reports that Statewide Intake decided rose to the
level of abuse, neglect, or exploitation but which RCCI later downgraded to Priority None. A
finding of Priority None means that the investigators conclude that the report does not contain an
allegation of abuse, neglect, or exploitation and no further investigation is conducted. Id. at 36
n.73, 49 n.115. Based on the data, the Monitors determined that RCCI wrongly downgraded 33%
of these reports. Id. at 49-62. That is, in a third of the reports—57 reports that Statewide Intake
had found rose to the level of abuse, neglect, or exploitation—RCCI erroneously found the reports
did not require any further investigation at all. Id. at 50.
The State’s practice has serious consequences for children. By requiring second screenings,
in which RCCI wrongly forecloses any investigation into a third of the allegations that Statewide
Intake has found to rise to the level of abuse, neglect, or exploitation, the State is leaving untouched

1
RCCI was created as of September 1, 2017, after the Legislature transferred responsibility for
oversight and regulation of child-care operations to Texas Health and Human Services. The duty
to investigate allegations of abuse, neglect, and exploitation within those settings remained with
DFPS, which created the RCCI unit. See Report at 33 n.57.
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scores of abuse reports. It means that each of the alleged adult perpetrators is free to harm children
again. It means that each of these alleged perpetrators is able to continue working with the same
allegedly abused child—or to get a job with another Texas childcare operation and abuse, neglect,
or exploit another child. Id. The ongoing and immediate harm to these PMC children, and ongoing
and immediate risk of harm to other PMC children, remains unremedied. This is unconscionable.
In some instances, RCCI appears to have based its downgrade on a policy that a behavior
like self-harming is not serious if it is not suicidal. Id. at 76. In such cases, RCCI fails to consider
the action or inaction by caregivers to prevent the incident, even when the behavior caused, or may
have caused, harm. Id. In other cases, RCCI downgraded reports of caregivers harming children
and children expressing fear of their caregivers. Some examples of these situations include:
 A nine-year-old foster child disclosed that when she was five, her previous
foster mother cut her right hand with a knife and a piece of glass while
drunkenly playing the game “hangman.” The same foster mother pushed her
birth child down the stairs while drunk. RCCI deemed this a Priority None
minimum standards investigation. The Monitors found these allegations to
warrant a physical abuse investigation. Report, App. 3.1 at 3.
 An eight-year-old boy with special needs “had a rough day at school” and could
not be placed on the bus due to safety concerns. He became extremely fearful
when the teachers called his foster mother. He told them that she “restrains”
him and “takes me to the garage, makes me put my foot over my head, and puts
my arms behind my back.” RCCI deemed this a Priority None investigation.
The Monitors found these allegations to warrant a physical abuse investigation.
Id. at 7.
 A 17-year-old girl got pills from other foster care residents and tried to overdose
because she felt unsafe at the facility and mistreated by staff. She also ingested
ink that same day. Nobody at the facility took her to the emergency room or to
see a doctor. RCCI deemed this a Priority None investigation. The Monitors
found these allegations to warrant a neglectful supervision investigation, both
because of her self-harming behavior and the fact that residents are keeping
their own pills, which is against policy. Id. at 11.
Beyond that, RCCI consistently and inappropriately disregarded abuse allegations. In its
investigations, RCCI can reach one of three findings: Reason to Believe, Ruled Out, and Unable
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to Determine. Report at 60. A ruled-out finding is proper only when a preponderance of evidence
indicates that abuse, neglect, or exploitation did not occur. Id. Based on some 122 investigations
where all allegations were “Ruled Out”, the Monitors found that RCCI did so inappropriately in
11 cases (9.1%). In another 24 cases (19.7%), RCCI did investigations with so many defects that
the Monitors were unable to evaluate the determinations. Id. at 88. In total, the Monitors identified
35 cases (28.7%) in a sample of 122 investigations that were “Ruled Out” by RCCI, from August
through November 2019, which had substantial deficiencies or were inappropriately resolved. Id.
Part of the problem appears to be that RCCI is ignoring Texas standards for investigations
of children in State care. By law, DFPS staff must complete an investigation if “it is impossible to
determine whether or not there are safety threats to the child because of abuse or neglect or whether
risk of abuse or neglect is indicated.” TEX. ADMIN. Code §700.507 (e)(1)(A)-(C). But for PMC
children, RCCI’s screening policy allows it to downgrade risk of abuse or neglect to children if
the reported allegations are “too vague to determine that a child was abused or neglected.” Report
at 60. In short, RCCI’s policy for PMC children is the opposite of Texas law.
It gets worse. The Monitors found many RCCI investigations are deficient because of long
delays in investigative activity and completion. Id. at 88. In one case, the Monitors identified ten
separate allegations of physical abuse against a child by an individual who still was able to work
at other children’s facilities over the course of five years. Id. at 89-91. This employee was seen
punching and kicking children, putting hands around children’s throats, and restraining a child to
let other children punch and kick the child. Yet, there is no record that the State ever considered—
or was aware of—these ten separate allegations, except for one recent investigation into this
employee. Id. at 91. Other investigations where RCCI wrongly ruled out abuse allegations include:
 A foster mother allegedly pushed a child to the ground, resulting in a swollen

lip and bleeding gums. She “spoke negatively about the alleged victim to the
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DFPS caseworkers, describing him as the worst child she has ever served,” and
“sold the alleged victim’s clothing after he left the home.” The Monitors found
that the allegation warranted a disposition of Reason to Believe. Report, App.
3.2 at 2.
 “Six children who were placed in the home at different times made similar
allegations; namely, that a man came into the room with a covering on his head
and touched them inappropriately.” Many young children in this foster home
had a history of abuse and trauma, had a specialized level of need, or were
prescribed psychotropic medication, and the allegations were attributed to these
factors. The children were told they were “hallucinating” this same instance of
sexual abuse, despite the fact that the children had no contact with each other
and did not overlap at the foster home. The Monitors found that the allegations
warranted a disposition of Reason to Believe. Id. at 8.
In sum, the Monitors found that the State’s methods for screening/investigating allegations
of abuse and neglect fail to comply with Remedial Order 3. This failure to prioritize child safety
is reflected in the State’s policy of having RCCI do secondary screenings, a practice that causes
children to be harmed or face a substantial risk of serious harm.
To address this failure, the Court should order defendants to:
a. Suspend all secondary screenings, by RCCI or any other entity, so all reports
that Statewide Intake finds should be investigated for abuse or neglect promptly
will proceed to a proper investigation;
b. Ensure that RCCI conducts a thorough investigation of all abuse and neglect
reports, as outlined by Chapter 700.507 of the Texas Administrative Code, and
resolves ambiguities in favor of conducting a proper investigation;
c. Require that RCCI investigators are trained to make determinations with regard
to abuse, neglect, or exploitation in care using the same standards applied by
CPS investigators who are trained to make determinations with regard to abuse,
neglect, or exploitation in homes in the community; and
d. Require that all data regarding RCCI determinations be made publicly available
to increase transparency, consistent with practices now used for Child
Protective Investigative determinations.
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2. Remedial Orders 5 and 7: Failure to timely investigate where a child appears to face
a safety threat of abuse or neglect that could result in death or serious harm
Plaintiffs seek an order directing the State to show cause why defendants should not be
held in contempt for having failed to comply with Remedial Orders 5 and 7 as to timely initiation
of Priority One investigations. Priority One reports involve a child’s death, whether or not abuse
or neglect contributed to the death, or an immediate threat of serious physical or emotional harm
or death of a child caused by abuse or neglect. See Report at 58. Remedial Orders 5 and 7 require
initiation of an investigation and face-to-face contact in such circumstances within 24 hours:
Within 60 days and ongoing thereafter, DFPS shall, in accordance with existing
DFPS policies and administrative rules, initiate Priority One child abuse and
neglect investigations involving children in the PMC class within 24 hours of
intake. [Dkt. 606 at 3]
Within 60 days and ongoing thereafter, DFPS shall, in accordance with DFPS
policies and administrative rules, complete required initial face-to-face contact
with the alleged child victim(s) in Priority One child abuse and neglect
investigations involving PMC children as soon as possible but no later than 24
hours after intake. [Dkt. 606 at 3]
The Monitors found that only 68% of such investigations are initiated within 24 hours of
intake by face-to-face contact with the alleged child victims. One investigation was approved by a
supervisor for initiation through interviews with the caregivers, as the alleged child victim was
dead. See Report at 109. There was no records to support that the other 26% of investigations were
initiated within 24 hours through face-to-face contact with each alleged victim or initiated through
an alternative approved method under DFPS policy. Id. at 109, 111. In fact, in one investigation,
the record showed that DFPS did not complete face-to-face contact with one of the alleged victims
until 22 days after intake. Id. at 112.
The Monitors found that the State often moves far too slowly in investigating allegations
of abuse/neglect, even where a child appears to be at risk of death or serious harm. See Report at
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22. Months ago, the State reported that it was complying with the Court’s orders on timeliness:
“On September 9, 2019, DFPS reported to the Monitors: Regarding Remedial Orders [5 and 7]
‘DFPS policies and practices are in compliance with this order.’” Id. at 102. Yes, despite the critical
importance of timely investigation of reports of abuse/neglect, the State’s assurances were not true.
Plaintiffs request an order directing the State to show cause why defendants should not be
held in contempt and sanctioned for failing to comply with Remedial Orders 5 and 7. Of course,
the sanction is for the Court to decide. It may include, for example, substantial monetary penalties
assessed 30 days after the contempt order unless the State implements meaningful remedies that
cure the violations. The State must ensure that all Priority One child abuse/neglect investigations
involving PMC children are initiated within 24 hours of intake (consistent with Remedial Order
5), and initial face-to-face contact with each alleged child victim is completed as soon as possible
but no later than 24 hours after intake (consistent with Remedial Order 7).
3. Remedial Order 10: Failure to complete child abuse and neglect investigations within
30 days of intake
held in contempt because they have failed to comply with Remedial Order 10, which requires:
Within 60 days, DFPS shall, in accordance with DFPS policies and administrative
rules, complete Priority One and Priority Two child abuse and neglect
investigations that involve children in the PMC class within 30 days of intake,
unless an extension has been approved for good cause and documented in the
investigative record. If an investigation has been extended more than once, all
extensions for good cause must be documented in the investigative record. [Dkt.
606 at 3]
The Monitors found that 79% of investigations are not completed within the 30-day time
frame required under Remedial Order 10. See Report at 114. A mere 19% of investigations were
documented as completed within 30 days. Id. at 115. Only 2% had approved extensions and were
completed within the extension timeframe. Id. at 114. There were an astounding 501 investigations
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overdue by at least 45 days. Id. at 27 (as of April 5, 2020). This backlog is inexcusable. It leaves
allegedly abused/neglected children languishing and exposed in possibly dangerous environments
in violation of Remedial Order 10.
held in contempt and sanctioned. It may include substantial monetary penalties assessed 30 days
after the contempt order unless the State implements meaningful remedies that cure the violations.
The State must ensure that Priority One and Two abuse/neglect investigations involving PMC
children are done within 30 days of intake, unless an extension is approved for good cause and
documented in the investigative record. If an investigation has been extended more than once, all
extensions for good cause must be documented in the record (consistent with Remedial Order 10).
4. Remedial Order B5: Failure to notify caseworkers of ongoing investigations of abuse
held in contempt because they have failed to ensure that allegations of abuse are communicated to
primary caseworkers, as required by Remedial Order B5, which provides:
Effective Immediately, DFPS shall ensure that RCCL, or any successor entity,
promptly communicates allegations of abuse to the child’s primary caseworker….
[Dkt. 606 at 15]
To ensure child safety during ongoing investigations, the Court ordered the State to notify
caseworkers so they will check on children in the home/facility under investigation. The Monitors
found that investigators failed to timely notify caseworkers in 27% of cases and never notified
caseworkers in another 23% of the cases. See Report at 140. In short, in half of the cases reviewed,
the State investigators failed to comply with Remedial Order B5.
held in contempt and sanctioned. This may include substantial monetary penalties assessed 30 days
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after the contempt order unless the State implements meaningful remedies that cure the violations.
The State must ensure that investigators promptly communicate allegations of abuse to the child’s
primary caseworker (consistent with Remedial Order B5).
5. Remedial Order 37: Failure to review foster home histories to determine if there are
patterns indicating a dangerous environment for children
held in contempt because they have failed to comply with Remedial Order 37, which provides:
Within 60 days, DFPS shall ensure that all abuse and neglect referrals regarding
a foster home where any PMC child is placed, which are not referred for a child
abuse and neglect investigation, are shared with the PMC child’s caseworker and
the caseworker’s supervisor within 48 hours of DFPS receiving the referral. Upon
receipt of the information, the PMC child’s caseworker will review the referral
history of the home, assess if there are any concerns for the child’s safety or well-
being, and document the same in the child’s electronic case record. [Dkt. 606 at 7]
The Remedial Order is clear: caseworkers must check on children in a home where there
has been an uninvestigated allegation of abuse or neglect. Even though the State, often with no
face-to-face contact with alleged victims, has chosen not to do an investigation, there still may be
a dangerous situation which must be addressed. Caseworkers are required to review the referral
history of the homes—do a “home history review”—to see if there is a pattern which indicates
something is occurring which could endanger children.
The Monitors found that the policy adopted by the State “fails to implement the timeline
set out by the order, which requires notification of the child’s caseworker and caseworker review
of the home’s history within forty-eight hours.” Id. at 155. In fact, there was no evidence of a home
history review in 21% of the cases, after investigations of abuse or neglect were remotely closed.
Id. at 147. Overall, there was no timely review of the home or no review at all in 73% of the cases.
Id. at 155. In short, the State is not even trying to comply with this Remedial Order at this point.
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held in contempt and sanctioned for failing to comply with Remedial Order 37. The sanction may
include substantial monetary penalties assessed 30 days after the contempt order unless the State
implements meaningful remedies that cure the violations. The State must ensure that
uninvestigated abuse/neglect referrals regarding a foster home where any PMC child is placed are
shared with the caseworker and her/his supervisor within 48 hours of DFPS receiving the referral
and that, upon receipt of the information, the caseworker reviews the referral history of the home,
assesses if there are concerns for the child’s safety or wellbeing, and documents the findings in the
child’s electronic case record (consistent with Remedial Order 37).
6. Remedial Order 2: Failure to ensure that newly hired caseworkers have caseloads
which do not overwhelm them and endanger children
held in contempt because they have failed to comply with Remedial Order 2, which provides:
Within 60 days, DFPS shall ensure statewide implementation of graduated

caseloads for newly hired CVS caseworkers, and all other newly hired staff with
the responsibility for primary case management services to children in the PMC
class, whether employed by a public or private entity. [Dkt. 606 at 2]
DFPS did not provide data to the Monitors to validate the average daily caseload for
caseworkers, which is necessary to validate compliance with Remedial Order 2. See Report at 167.
Even without full data, the Monitors found that 31% of caseworkers subject to graduated caseloads
under DFPS policy had caseloads in excess of the graduated caseload standard on the fifteenth day
after those caseworkers became eligible to carry cases. Id. at 167.
implements meaningful remedies that cure the violations. The State must ensure that newly hired
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conservatorship caseworkers and staff responsible for primary case management, employed by a
public or private entity, have graduated caseloads for PMC children. The State must provide all
necessary data for the Monitors to determine its compliance (consistent with Remedial Order 2).
7. Remedial Orders 24, 28, and 30: Failure to protect children from child-on-child
sexual abuse while in state custody
held in contempt because they are violating Remedial Orders 24, 28 and 30, which provide:
Within 60 days, DFPS shall document in each child’s records all confirmed
allegations of sexual abuse in which the child is the victim. [Dkt. 606 at 5]
Effective immediately, DFPS shall ensure a child’s electronic case record

documents “child sexual aggression” and “sexual behavior problem” through the
profile characteristic option when a youth has sexually abused another child or is
at high risk for perpetrating sexual assault. [Dkt. 606 at 5]
Effective immediately, DFPS must also document in each child’s records all
confirmed allegations of sexual abuse involving the child as the aggressor. [Dkt.
606 at 6]
The epidemic of child-on-child sexual abuse will continue to rage in Texas foster care until
it is acknowledged by the State and seriously addressed. The Monitors found that 9% of children’s
on-site files and IMPACT records reflect a failure to flag children as sexual abuse victims or
aggressors. See Report at 213. Even more disturbing, sexual-related behaviors between children
are the basis of one-third of neglectful supervision allegations for PMC children. Yet, in their case
reviews, the Monitors did not find any examples of children whose confirmed allegations were
due to child-on-child abuse endured while in care. Id. at 214-16. In all cases of child-on-child
abuse, the State flagged no child as a sexual abuse victim or aggressor.
held in contempt and sanctioned for failing to comply with the Court’s Remedial Orders 24, 28,
and 30. The sanction may include substantial monetary penalties assessed 30 days after the
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contempt order unless the State implements meaningful remedies that cure the violations. The
State must ensure that the electronic case record documents “child sexual aggression” and “sexual
behavior problem” through the profile characteristic option, when a youth has sexually abused
another child or is at high risk for perpetrating sexual assault; the record confirms allegations of
sexual abuse in which the child is the victim; and the record confirms allegations of sexual abuse
involving the child as the aggressor (consistent with Remedial Orders 24, 28, and 30).
8. Remedial Orders 25-27, 29, and 31: Failure to inform frontline caregivers when
children placed in homes or facilities have been sexual abuse victims or aggressors
held in contempt for failing to comply with Remedial Orders 25, 26, 27, 29, and 31, which provide:
Effective immediately, all of a child’s caregivers must be apprised of confirmed

allegations at each present and subsequent placement. [Dkt. 606 at 5]
Effective immediately, if a child has been sexually abused by an adult or another

youth, DFPS must ensure all information about sexual abuse is reflected in the
child’s placement summary form, and common application. [Dkt. 606 at 5]
Effective immediately, all of the child’s caregivers must be apprised of confirmed

allegations of sexual abuse of the child at each present and subsequent placement.
[Dkt. 606 at 5]
Effective immediately, if sexually aggressive behavior is identified from a child,

DFPS shall also ensure the information is reflected in the child’s placement
summary form and common application. [Dkt. 606 at 6]
Effective immediately, all of the child’s caregivers must be apprised at each present
and subsequent placement of confirmed allegations of sexual abuse involving the
PMC child as the aggressor. [Dkt. 606 at 6]
The Monitors found that “only 57% of direct caregivers interviewed indicated that they
received notice when a child had been identified as sexually aggressive, and only 50% indicated
they received notice when a child had been identified as having a history of sexual abuse.” Report
at 245. As a result, children continue to be put at risk of harm due to child-on-child sexual abuse
as their caregivers are not notified when a child placed in their home or facility has been a sexual
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abuse victim or aggressor. In many placements, information as to which child is a abuse victim or
aggressor is not being told to frontline staff who are to ensure child safety on a daily basis.
held in contempt and sanctioned for failing to comply with the Court’s Remedial Orders 25, 26,
27, 29, and 31. The sanction may include substantial monetary penalties assessed 30 days after the
contempt order unless the State implements meaningful remedies that cure the violations. The
State must ensure that, if a child has been sexually abused by an adult or another youth, all pertinent
data about the abuse is reflected in the child’s placement summary form and common application;
the child’s caregivers are told of confirmed allegations of sexual abuse of the child at each present
and later placement; if sexually aggressive behavior is identified from a child, the information is
reflected in the child’s placement summary form and common application; and the caregivers are
told at each present and later placement of confirmed allegations of sexual abuse involving the
PMC child as the aggressor.
9. Remedial Order 22: Failure to implement a credible system for considering a licensed
provider’s history as to allegations of abuse and neglect
held in contempt because they are violating Remedial Order 22, which provides:
Effective immediately, RCCL, and any successor entity charged with inspections of
childcare placements, must consider during the placement inspection all referrals
of, and in addition all confirmed findings of, child abuse/neglect and all confirmed
findings of corporal punishment occurring in the placements. During inspections,
RCCL, and any successor entity charged with inspections of childcare placements,
must monitor placement agencies’ adherence to obligations to report suspected
child abuse/neglect. When RCCL, and any successor entity charged with
inspections of childcare placements, discovers a lapse in reporting, it shall refer
the matter to DFPS, which shall immediately investigate to determine appropriate
corrective action, up to and including termination or modification of a contract.
[Dkt. 606 at 5]
- 16 -

Remedial Order 22 requires the State to consider a private provider’s history regarding
reports of abuse or neglect in care when conducting licensing oversight. The Monitors found that
the State is not consistently or effectively compiling/considering extended compliance histories in
its licensing oversight. As reflected in their Report (at 271):
 Only 28% of inspections associated with an investigation of a minimum

standards violation had a completed five-year retrospective report;
 Some 29% of the operations had no five-year retrospective reports in CLASS;
 Only 7% of the operations had a five-year retrospective report for all

investigations or inspections done during the period under review;
 Residential Child Care Licensing (RCCL) rarely does a five-year retrospective

review before or with the inspection, making it impossible for the information
to be considered in the inspection.
 Only 40% of RCCL inspectors even understood the purpose of or process for
compiling and using the information required by the compliance history review.
implements meaningful remedies that cure the violations. The State must implement a credible
system for considering a licensed provider’s history regarding allegations of abuse and neglect
(consistent with Remedial Order 22).
10. Remedial Order 20: Failure to implement a credible system of heightened monitoring
of private providers with a pattern of violations
held in contempt because they are violating Remedial Order 20, which provides:
Within 120 days, RCCL and/or any successor entity charged with inspections of
child care placements, will identify, track and address concerns at facilities that
show a pattern of contract or policy violations. Such facilities must be subject to
heightened monitoring by DFPS and any successor entity charged with inspections
- 17 -

of child care placements and subject to more frequent inspections, corrective

actions, and, as appropriate, other remedial actions under DFPS’ enforcement
framework. [Dkt. 606 at 4-5]
After the Order issued, the State sought clarification of the meaning of the terms “pattern” and
“heightened monitoring.” On March 18, 2020, the Court entered an order establishing definitions
for these terms as used in Remedial Order 20. Dkt. 837.
The Monitors did an exhaustive data analysis to determine the number/identity of licensed
providers with historical rates of substantiated abuse/neglect and violations of minimum standards
that exceed the statewide average. Id. at 302-10. Despite finding a significant number of childcare
placements with rates far surpassing the statewide average, the Monitors found little meaningful
enforcement action by the State to protect children from unreasonable risks of harm. From
September 30, 2014 to March 31, 2020, only 71 operations were put on a voluntary plan of action,
39 on evaluation, and 20 on probation. Id. at 371. Finally, while six operations were sent a letter
of intent to revoke their license, no license was revoked during the review period. Id. DFPS data
for the period September 30, 2016 through September 30, 2019 indicates little formal enforcement
action by the State. Id. at 317. Indeed, the State conceded to the Monitors that it lacks staffing
capacity and data management capability to effectuate a comprehensive heightened monitoring
program on any near-term basis. Id. at 299-301.
implements meaningful remedies that cure the violations. The State must implement a credible
system for heightened monitoring of licensed providers showing a pattern of policy or contract
violations (consistent with Remedial Order 20).
- 18 -

PRAYER
For these reasons, plaintiffs respectfully pray that the Court order the State to show cause
why defendants should not be held in contempt and sanctioned for failing to comply with court
orders and for such further relief to which plaintiffs are justly entitled.
Dated: July 2, 2020 Respectfully submitted,
/s/ R. Paul Yetter

Samantha Bartosz (pro hac vice) R. Paul Yetter
Christina Wilson Remlin (pro hac vice) Lonny Hoffman
Stephen Dixon (pro hac vice) YETTER COLEMAN LLP
CHILDREN’S RIGHTS 811 Main Street, Suite 4100
88 Pine Street Houston, Texas 77002
New York, New York 10005 (713) 632-8000
(212) 683-2210 (713) 632-8002 (Fax)
(212) 683-4015 (Fax) pyetter@yettercoleman.com
sbartosz@childrensrights.org
Barry F. McNeil
Marcia Robinson Lowry HAYNES AND BOONE, LLP
A BETTER CHILDHOOD, INC. 2323 Victory Ave., Suite 700
355 Lexington Avenue, Floor 16 Dallas, Texas 75219
New York, New York 10017 (214) 651-5000
(646) 795-4456 (214) 200-0535 (Fax)
(844) 422-2425 (Fax) barry.mcneil@haynesboone.com
mlowry@ABetterChildhood.org
ATTORNEYS FOR PLAINTIFFS AND THE
GENERAL CLASS AND SUBCLASSES
CERTIFICATE OF SERVICE
I certify that on this 2nd day of July, 2020, we electronically filed this pleading with
the Clerk of Court using the CM/ECF system, through which all counsel have been served.
/s/ R. Paul Yetter

R. Paul Yetter
- 19 -

Texas Foster Care Plaintiffs Ask Federal Judge To Hold State in Contempt of Court

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Texas Foster Care Plaintiffs Ask Federal Judge To Hold State in Contempt of Court

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Case 2:11-cv-00084 Document 901 Filed on 07/02/20 in TXSD Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

M.D., b/n/f Sarah R. Stukenberg, et al., )

PLAINTIFFS’ MOTION TO SHOW CAUSE WHY

risks in its foster care system.

Range Co., 221 U.S. 418, 450 (1911).

and none other,” as

(1) Misbehavior of any person in its presence or so near thereto as to obstruct

“special deference.” Hutto, 437 U.S. at 687-88.

[T]he exercise of discretion in [a] case is entitled to special deference because of

civil contempt proceeding is

on appeal.” 493 U.S. at 276.

ARGUMENT AND AUTHORITIES

contempt for failing to comply with Remedial Order 3, which provides:

allegation of abuse, neglect, or exploitation and no further investigation is conducted. Id. at 36

did not require any further investigation at all. Id. at 50.

 A foster mother allegedly pushed a child to the ground, resulting in a swollen

children to be harmed or face a substantial risk of serious harm.

To address this failure, the Court should order defendants to:

initiation of an investigation and face-to-face contact in such circumstances within 24 hours:

until 22 days after intake. Id. at 112.

allegedly abused/neglected children languishing and exposed in possibly dangerous environments

in violation of Remedial Order 10.

4. Remedial Order B5: Failure to notify caseworkers of ongoing investigations of abuse

primary caseworkers, as required by Remedial Order B5, which provides:

the State investigators failed to comply with Remedial Order B5.

primary caseworker (consistent with Remedial Order B5).

something is occurring which could endanger children.

child’s electronic case record (consistent with Remedial Order 37).

Within 60 days, DFPS shall ensure statewide implementation of graduated

after those caseworkers became eligible to carry cases. Id. at 167.

Effective immediately, DFPS shall ensure a child’s electronic case record

abuse, the State flagged no child as a sexual abuse victim or aggressor.

Effective immediately, all of a child’s caregivers must be apprised of confirmed

Effective immediately, if a child has been sexually abused by an adult or another

Effective immediately, all of the child’s caregivers must be apprised of confirmed

Effective immediately, if sexually aggressive behavior is identified from a child,

PMC child as the aggressor.

the State is not consistently or effectively compiling/considering extended compliance histories in

its licensing oversight. As reflected in their Report (at 271):

 Only 28% of inspections associated with an investigation of a minimum

 Some 29% of the operations had no five-year retrospective reports in CLASS;

 Only 7% of the operations had a five-year retrospective report for all

 Residential Child Care Licensing (RCCL) rarely does a five-year retrospective

(consistent with Remedial Order 22).

of child care placements and subject to more frequent inspections, corrective

for these terms as used in Remedial Order 20. Dkt. 837.

capacity and data management capability to effectuate a comprehensive heightened monitoring

program on any near-term basis. Id. at 299-301.

violations (consistent with Remedial Order 20).

Dated: July 2, 2020 Respectfully submitted,

/s/ R. Paul Yetter

/s/ R. Paul Yetter

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