Opposition To Renewed Contempt Motion 02 05 2009

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LASHAWN A. et al., Plaintiffs, v. ADRIAN M. FENTY, et al., Defendants.

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Civil Action No. 89-1754 (TFH)

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR ENTRY OF CONTEMPT FINDING PURSUANT TO PARAGRAPH 1 OF THE OCTOBER 7, 2008 STIPULATED ORDER INTRODUCTION Plaintiffs seek to renew their July 24, 2008 Motion for a Finding of Civil Contempt, which was resolved by this Court’s October 7, 2008 Stipulated Order, arguing that acceptable progress was not made in relation to the actions required in that order. That conclusion is not supported by the Court Monitor’s report of January 5, 2009 on the District of Columbia’s compliance with the Stipulated Order (Exhibit A to plaintiffs’ motion) which found that over the past three months: the Child and Family Services [Agency] [CFSA], with the assistance and support from the Executive Office of the Mayor, the Attorney General and the City Administrator has worked diligently to successfully meet each of the agreements of the Stipulated Order. This includes focused and intensive work to dramatically reduce the backlog of investigations incomplete after 30 days . . . Other improvements . . . include hiring additional social workers to reduce the unacceptably high number of social work vacancies; moving forward to revitalize efforts to achieve permanency for children in foster care and expanding the array and number of available out-of-home placements. The District should be commended for the success of its work during the past three months.

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Report at 1. Plaintiffs vitriolic argument, however, is based on unsubstantiated assertions that the Mayor is impeding implementation of the court-ordered reforms and that the agency responsible for implementing these reforms -- the CFSA -- is in “a state of fundamental chaos,” assertions directly contradicted by the Court Monitor’s recent findings. Motion at 2 & 6. Putting aside these inaccurate conclusions, plaintiffs’ argument is narrowly based on the District’s recent submission of a motion asking this Court to approve a six-month plan for which it was unable to get the approval of the Court Monitor (Monitor) by the date it was required to be filed. This is the unacceptable progress which, plaintiffs argue, now support a finding of contempt. Such a finding is unsupported and unwarranted. Plaintiffs’ motion is nothing more than an expression of their disagreement with defendants’ recently submitted six-month plan; there are no facts contained therein that can support a finding of contempt against the District. ARGUMENT I.

The District Of Columbia Has Met Or Exceeded The Requirements Of The Stipulated Order And Its Submission Of A Motion Seeking This Court’s Approval Of A Six-Month Plan, As Recommended By The Consultants Retained Pursuant To That Order, Does Not Support A Finding Of Contempt.

A.

Procedural Background.

On July 24, 2008, plaintiffs filed a motion seeking a finding of contempt. The District’s opposition to that motion was filed on September 5, 2008. The District will not repeat the facts and arguments made in its opposition, but does incorporate them here by reference. As noted above, plaintiffs’ motion was resolved by the Stipulated Order. Therein, the plaintiffs reserved the right to seek a finding of civil contempt based on the matters previously raised in their motion if acceptable progress is not made relative to the actions required in the Stipulated Order. Order at 1.

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As reported by the Court Monitor, the Stipulated Order required a “series of actions the District of Columbia would complete between October 15 and December 31, 2008 . . . [and[ CFSA has successfully completed each of the requirements of the Stipulation.” Report at 2. An essential component of the Stipulated Order was the District’s retention of a group of experienced child welfare consultants who were recommended by the plaintiffs and endorsed by the Court Monitor – Public Catalyst Group (PCG). As required, PCG was retained by the District; they completed an organizational assessment of CFSA, assisted the Mayor with recruitment of a permanent CFSA director, and assisted the District in its development of its sixmonth plan. Report at 2-4. The Stipulated Order had ten additional requirements: 1.) The first was a reduction in the number of investigations open longer than 30 days to 100 by December 31, 2008. As of December 26, 2008, the backlog of investigations open beyond 30 days was 69, a dramatic reduction from mid-June 2008. Report at 4. 2.) A reduction in the vacancy rate for case carrying social workers to as low as 15 percent was required by December 31, 2008. As of December 18, 2006, the vacancy rate was as low as 6 percent. Report at 5. 3). A new telephone system for the Child Protective Service’s Hotline was to be operational by December 31, 2008. This new system became operational on December 10, 2008 and “[a]ll the elements of a functional system and the supporting technology are available through this new system.” Report at 6. 4.) CFSA in-home staff were to be co-located with the Healthy Families Thriving Communities Collaboratives no later than November 15, 2008. “As of November 2008, all of

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CFSA’s in home service units have been relocated to the seven neighborhood [Collaboratives].” Report at 6. 5.) By November 15, 2008, CFSA was to require its staff and private agency staff to conduct a family-involved meeting and secure the approval of the CFSA director prior to recommending a goal of Another Planned Permanent Living Arrangement (APPLA) for any youth. This requirement was memorialized in an Administrative Issuance on October 24, 2008. Report at 8. 6.) By December 31, 2008, a CFSA impact team was to convene family-involved team meetings for 60 youth with an APPLA goal, resulting in the review of legal permanency options and recommendations and actions steps for at least 30 of the reviewed youth. “From late October to mid-December, CFSA held meetings with over 60 youth, professionals who work with these youth and others involved in their lives to discuss a range of topics including the youth’s permanency goals. In approximately 30 cases, these meetings resulted in concrete plans to explore another permanency option, such as legal guardianship or adoption.” Report at 9. 7.) By December 31, 2008, CFSA was required to and did add 90 placements in an appropriate mix to address placement needs. Report at 9-10. 8.) CFSA was required to identify 40 children with a goal of adoption, and hire an external contractor to lead impact teams to review their status and address barriers to achieving permanency. CFSA contracted timely with Adoptions Together, “a qualified provider with experience in adoptions practice, to hold, lead and support the work of the Impact Teams charged with helping identified children achieve permanence. . . . As of December 18, 2008, 24 of the 40 identified children are in the first phase, Assessment and Planning, of a six-phase process anticipated to end with Post Placement and Finalization Services.” Report at 10-11.

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9.) By November 15, 2008, CFSA was required to enter into a contract with a private agency to provide adoption services for 25 children who have a permanency goal of adoption and no adoption resource. “CFSA entered into an additional contract with Adoptions Together for this work.” Report at 11. 10.) Finally, the District was required to develop a strategy plan for the 2009 calendar year acceptable to the Court Monitor that contained specific action steps and benchmarks to move it toward compliance. However, as reported by the Court Monitor, a “joint decision was made by the Parties to postpone development of the 2009 Strategy Plan until after receiving the assessment report” from PCG and to consider PCG’s recommendation to develop a six-month “bridge” plan. Report at 11. It is this requirement in the Stipulated Order that plaintiffs contend the District has failed to comply with and for which a finding of contempt is sought.1 B.

The District Is Not In Contempt Of The Stipulated Order. 1.

The Standard Of Review.

Civil contempt is “a remedial sanction used to obtain compliance with a court order or to compensate for damage sustained as a result of noncompliance.” Food Lion v. United Food Commercial Workers Int’l Union, 103 F.3d 1007, 1016 (D.C. Cir. 1997) (quoting NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir.1981). “[C]ivil contempt will lie only if the putative contemnor has violated an order that is clear and unambiguous, and the violation must be proved by clear and convincing evidence.” Armstrong v. Executive Office of the President, Office of the Administration, 12 F.3d 1274, 1289 (D.C. Cir. 1993) (citations omitted).

1

Even if, assuming arguendo, the District was in technical non-compliance with this one provision, which it was not, it still has unquestionably substantially complied with the Stipulated Order. United States v. Shelton, 539 F. Supp. 2d 259, 263 (D.D.C. 2008). 5

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The finding of civil contempt is a significant step; “the Court will proceed with caution, as a finding of civil contempt is a potent weapon.” Joshi v. Professional Health Services, Inc., 817 F.2d 877, 879 n.2 (D.C. Cir.1987). “The party seeking contempt must prove the elements by clear and convincing evidence, rather than the preponderance of the evidence standard typical to civil cases.” NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1183-1184 (D.C. Cir.1981); see Food Lion, Inc. at 1016; see also Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 626 F.2d 1029, 1031 (D.C. Cir. 1980) (describing the burden on the moving party as a “heavy burden of proof”). “Furthermore, if the order contains any ambiguities, the Court must resolve those issues in favor of the party against whom contempt is sought.” Broderick v. Donaldson, 338 F.Supp.2d 30, 47 (D.D.C. 2004). The violation must be of a clear and unambiguous order. This prong is sometime referred to as the “four corner” test, in which the allegations of contempt must be directly tied to a clear and specific directive found within the four corners of a court order. See U.S. v. Saccoccia, 433 F.3d 19, 23 (1st Cir. 2005) (stating that the test is “whether the putative contemnor is able to ascertain from the four corners of the order precisely what acts are forbidden.” (citation omitted). The purpose of this four corners rule is to assist the potential contemnor by narrowly cabining the circumstances in which contempt may be found. It is because the consequences that attend the violation of a court order are potentially dire that courts must read court decrees to mean rather precisely what they say. Id. at 28 (citations and quotation marks omitted). The test for a clear and unambiguous order “cannot be read in the abstract. The question is not whether the order is clearly worded as a general matter; instead, the clear and unambiguous prong requires that the words of the court’s orders have clearly and unambiguously

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forbidden the precise conduct on which the contempt allegation is based.” Id. at 24-5 (citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)). “An adjudication of contempt is a drastic remedy; therefore, a heavy burden of proof is placed upon the movant.” Morgan v. Barry, 596 F. Supp. 897, 898 (D.D.C. 1984). As discussed below, the plaintiffs fail to meet their heavy burden of proof. 2.

The District Complied With The Agreement To Draft A Six-Month Plan, Sought To Obtain The Court Monitor’s Approval, And Filed It In Compliance With The Court’s Directive.

The parties met on January 8, 2009 and agreed to accept the recommendation from PCG to develop a discretely focused six-month “bridge” plan. Report at 11, PCG Report at 5-7. There was no agreement as to what would follow this plan, but it was agreed that the District would circulate a proposed six-month plan on January 16, that plaintiffs would provide their comments on January 21, and that the parties would again meet on January 23, 2009. Subsequently, defendants requested a continuance of a status hearing set for January 29, 2009, for reasons unrelated to the plan. On January 13, 2009, the Court Monitor advised the parties by e-mail that the Court was willing to reschedule the hearing but that it was expecting “a plan by no later than January 26, 2009.” See attached Exhibit A. The parties met as planned on January 23, 2009. The District developed its first revised plan in light of plaintiffs’ comments. This revised plan was shared and discussed, provision by provision, at the January 23rd meeting. At the end of the meeting it was decided that the District would again revise its plan in light of the discussion at the January 23rd meeting, and circulate another revised draft. After considering the discussions between the parties on January 23rd and discussion with the Court Monitor and CFSA over the weekend, CFSA submitted a second revised draft to the Court Monitor on Sunday at approximately 6:20 p.m. Thereafter, the Court

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Monitor circulated her comments and revisions to CFSA’s second revised plan at approximately 11:30 a.m. on January 26, 2009, the date the plan was due to the Court. The District again revised its plan in light of the Court Monitor’s comments and suggestions and submitted a third revised plan at approximately 4:00 p.m., asking for a response by 5:00 p.m. The Court Monitor was unable to provide her or the plaintiffs’ comments by 5:00 p.m. Cognizant of the Court’s requirement that a plan be filed no later than that day, and choosing not to violate the Court’s directive, the District decided to file its proposed plan with the Court and simultaneously advised the Court Monitor by e-mail that although the District would be filing the plan, we could “continue to discuss the provisions [in the third revised plan] after you and the plaintiffs have reviewed it.” See attached Exhibit B. The following day the District filed its motion for approval of its six-month plan. Although plaintiffs conclude that the plan was submitted without meaningful consultation with them, the facts belie this assertion -- the plan was repeatedly revised based on discussions and exchanges of drafts among the parties and the Court Monitor, and was filed in compliance with this Court’s directive. 3.

The Parties Disagreement As To The Steps To Follow Implementation Of The Six-Month Plan Does Not Violate Paragraph 8.

The parties disagree as to the steps that should follow implementation of its six-month plan. The PCG Report recommends against developing any more comprehensive plan until a permanent leadership team is selected and in-place. PCG Report at 2. It is premature and unwise to determine the framework and timeframe for any subsequent plan without input from a permanent leadership team. The District opposed plaintiffs’ insistence that any plan include an agreement to develop a subsequent eighteen month plan, leaving no end in sight for this twentyyear old case. The District did not ignore or misrepresent the two-step process recommended by PCG. Rather, as explained in its motion for approval of its six-month plan, it contemplates as an

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appropriate next step the development of an exit plan with clear and measurable outcomes to be achieved - outcomes which will ensure an appropriately functioning child welfare system but which do not require outcomes beyond those required by law or national standards. Faced with no resolution of this issue and an impending deadline for filing a plan with the Court, the District filed a motion asking this Court to approve its proposed six-month plan. The District’s position that the appropriate next plan to be developed is an exit plan does not violate paragraph 8. Moreover, the District has certainly not violated a clear and unambiguous order where it has sought the Court’s approval for the plan it has developed after consulting with plaintiffs and seeking to obtain the Court Monitor’s approval up until the very filing date set by this Court. 4.

The District’s Six-Month Plan Builds Sound Case Practice And Its Performance Targets Are Designed Realistically With The Goal To Achieve Good Outcomes For Children And Families.

As summarized in the District’s motion, its plan sets forth realistic targets for improved performance in a six-month period of time in the critical AIP outcome areas identified by PCG.2 Memorandum at 5-10. While plaintiffs contend that the benchmarks and action steps in the District’s plan are inadequate, this contention fails to remotely demonstrate that the District is in violation of a clear and unambiguous order.3 The District has moved this Court to approve its plan and it is this context, not through a motion for contempt, that the substance of the District’s plan should be addressed. An example of a “desperately inadequate” benchmark cited by plaintiffs is CFSA’s proposal to maintain recent improvements in the percentage of children entering or re-entering

2

While plaintiffs make repeated reference to the 1993 Modified Final Order (MFO) the document governing reform of the District’s child welfare system is the AIP. Preamble, AIP, February 2007. 3 While the District’s plan seeks authority to make changes as necessary to move it towards compliance, that provision is not intended to make the plan unenforceable as plaintiffs argue. 9

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care who receive health screenings. The District’s plan sets this benchmark at 85 percent, 5 percent below the AIP benchmark, which is a significant increase in performance from the percentage plaintiffs complained of in their July 2008 motion, which was 59 percent. Moreover, plaintiffs fail to acknowledge that the District’s plan establishes a benchmark that 80 percent of children entering or re-entering care shall receive a full medical evaluation within 30 days of placement and that 95 percent of children will have a full medical evaluation within 60 days of entering or re-entering care. Plan at ¶ 26. Similarly, while plaintiffs dismiss as a minimal increase CFSA’s 30 percent benchmark for providing a full dental evaluation for children, it fails to even acknowledge that CFSA has also agreed that 45 percent of children will have a dental evaluation within 60 days, and 55 percent will have a dental evaluation within 90 days of entering or re-entering care. Plan at ¶ 27. These benchmarks are a significant increase from the earlier performance of 26 percent as of November 2008. Plaintiffs complain that CFSA has not increased the number of children that the high impact teams are intensively working with on adoption issues from that set forth in the Stipulated Order. But CFSA has increased resources and permanency efforts across the agency, doubling the number of staff currently participating in high impact team processes and instituting specialized training focused on helping children and youth achieve permanency. However, increasing the number of youth referred to the impact teams before permanency goals are achieved for children and youth already referred risks overwhelming a new process. As goals are accomplished for the 65 children and youth currently participating in the high impact process, successes and challenges will be assessed and the process refined and expanded. The District does not want to overburden this contractor, or add additional contractors to a yet untested system.

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Plaintiffs also complain about the benchmark set for youth with an APPLA goal. However, CFSA has committed to expand the number of APPLA youth reviewed tenfold, from the 60 reviewed during the three month stipulation period, to 600 youth in this six-month plan. Moreover, 40 percent of these reviews will result in recommendations and action steps for the identification of potential resources for permanent relationships. Plan at ¶ 17. Finally, plaintiffs complain that there are no benchmarks for adding new placements or reducing the number of placement moves for children in care. During the stipulation period, CFSA added 90 new placements. CFSA does not believe it is prudent to seek additional placements before determining needs and strengthening gaps in the current system. However, the agency is committed to reviewing its placement process and resources to determine if it has the correct type of placements for the children it serves and to establish whether there are other systemic factors impacting the number of multiple placements. Thus, it has committed to review the existing placement structure and, as required by the AIP, process and update its Resource Development Plan. Plan at ¶ 7a. & b. Moreover, it will make any needed adjustments to its placement resource pool based on that review. Plan at ¶ 7c. To increase the placement stability of the children in care, the District addresses the specific recommendations from the PCG by committing to reduce the number of young children who are placed in congregate care. In addition, CFSA will work more closely with its private providers to improve their outcomes of permanence for children by introducing heightened performance accountability through the contracting process. The District’s six-month plan supports the building of sound case practice and its performance targets are designed realistically with the goal to achieve good outcomes for children and families in the critical AIP areas identified in the PCG report.

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II.

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CFSA Continues To Improve Its Performance In Many Areas Of The AIP.

Initially it is important to note that plaintiffs’ argument that CFSA’s performance in a number of cherry-picked areas has declined over the last six months is misleading since it agreed that CFSA’s primary focus over the last several months should be on the actions steps and benchmarks set forth in the Stipulated Order, which CFSA has met or exceeded. Plaintiffs’ complaint that CFSA has not improved its performance in areas not covered by the Stipulated Order is disingenuous and clearly irrelevant to their contempt motion. Moreover, this Court extended until June 30, 2009, the time within which the District was to meet the benchmarks set forth in the AIP. As an example of decreased performance, plaintiffs cite to a 5 percent decrease in CFSA’s performance between April and November 2008 relative to two of the three goals for reducing multiple placements. However, plaintiffs fail to note that CFSA is within 10 percent of the AIP benchmark with regard to maintaining two or fewer placements for all children served in foster care since fiscal year 2007 and who were in care at least 8 days and less than 12 months. Additionally, this time period would fail to take into account the 90 new placements CFSA added during the stipulation period. Plaintiffs cite to adoption outcomes as an area where CFSA’s performance has decreased. As reflected in District’s proposed six-month plan, CFSA is working to improve its performance in this area. During the stipulation period CFSA contracted with Adoptions Together, but the improvements expected from this contract would not show up in the November 2008 data relied on by the plaintiffs. CFSA has increased resources and permanency efforts across the agency, doubling the number of staff currently participating in high impact team processes and instituting

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specialized training focused on helping children and youth achieve permanency. The work with Adoptions Together will continue throughout the year and CFSA is reformatting its adoptions process to better address and increase permanency for youth. Plaintiffs do cite to some areas where increased visitation is needed, such as between social workers and parents, to children experiencing a new placement or placement change, and in facilitating visits between parents and children and siblings. However, plaintiffs fail to note that CFSA has exceeded the AIP benchmark with regard to twice-monthly visits to families receiving in-home services and to children in out-of-home care. The District submits that focusing on a discrete set of realistically achievable improvements in critical areas, as its six-month plan does, is the best way to leverage going forward the lessons learned and success CFSA achieved in meeting the requirements of the Stipulated Order. As the PCG report observed, because the requirements of the Stipulated Order were “reasonable and founded in fact, staff could get on board because they were not being asked to do the unattainable. As each day ticked by and progress was made over the several months, critical staff . . . became more engaged because they could see progress.” Report at 6. The District’s six-month plan supports the building of sound case practice and its performance targets are designed realistically with the goal to achieve good outcomes for children and families. If plaintiffs have a difference of opinion as to the value or focus of the District’s sixmonth plan, they certainly are free to express them in an appropriately styled filing, but such disagreement is not a basis for the extraordinary sanction of contempt as plaintiffs seek to persuade this Court.

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Conclusion Neither the terms of the District’s six-month plan nor the District’s filing of a motion seeking this Court’s approval of it violates the terms of the Stipulated Order. Plaintiffs’ motion seeking a finding of contempt should be denied and this Court should approve the District’s sixmonth plan. Respectfully submitted, PETER J. NICKLES Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division /s/ ELLEN EFROS [#250746] Chief, Equity I Section /s/ RICHARD S. LOVE [#340455] Senior Assistant Attorney General Office of the Solicitor General Office of the Attorney General, D.C. /s/ LUCY PITTMAN [#483416] Assistant Attorney General 441 4th Street, N.W. 6th Floor South Washington, D.C. 20001 (202) 442-9891 (telephone) (202) 730-1436 (fax) [email protected]

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