M.D. v. Abbott

In Texas, children who first entered the foster-care system were in a temporary status that could last up to 18 months while attempts were made to reunify them with their parents or to find permanent placement with a relative or through adoption. Children who were still in state custody after 18 months were placed in a long-term status called the permanent managing conservatorship (PMC). Children in PMC received fewer services than those in the temporary status. For example, the children were not entitled to the representation of attorneys ad litem and typically were not represented by court-appointed special advocates. Essentially, the children in the long-term status received less attention even if they were being abused in state custody. As a result, a class of children (plaintiffs) in the PMC sued the Department of Family Protective Services (the agency) (defendant) under 42 U.S.C. § 1983. The children sought injunctive relief and alleged that their constitutional right to be protected from an unreasonable risk of harm was being violated as a result of the state’s foster-care policies and practices. For example, agency caseworkers had caseloads that were so high that the caseworkers went months without seeing foster children and did not follow up on reports of abuse. The agency’s policies regarding monitoring homes and facilities were abysmal, with the result that children remained in placements in which the agency knew they were likely being abused. Enforcement practices, once violations were known, were also terrible. From 6,050 violations recognized in 2013, only one facility was closed in five years’ time, and that was after a fourth child died by asphyxiation caused by physical restraints. The children alleged other violations resulting from being placed separate from siblings or in group homes where up to 12 kids of different genders, ages, and needs were placed together without 24-hour supervision. This mixed placement often resulted in younger children being sexually abused by older children who were sexually aggressive. However, because the agency did not document child-on-child abuse, kids could be placed where they were likely to be sexually abused. The district court found the state liable and granted an injunction ordering broad policy changes. The court ruled the state’s policies and practices related to caseloads, monitoring, placements separate from siblings, and placements in mixed-group home settings were deliberately indifferent and caused a violation of the children’s rights. The state appealed.